The Issue The issues for determination are whether, as alleged in the Amended Administrative Complaint, Walter L. Moyer, violated Section 472.033(1)(g) and (h) F.S. and Rule 21 HH-2.01(3) by performing a land survey in a negligent or incompetent manner, without due care and without due regard for acceptable professional standards, and violated Section 472.033(1)(e), (g) and (h) F.S., and Rule 21HH- 2.01(3) and (5) FAC, by providing a false or deliberately inaccurate survey sketch to a client on two separate occasions.
Findings Of Fact Walter L. Moyer has been licensed by the State of Florida as a registered surveyor from approximately August 1977 until present, and holds license number LS 0002828. His address for license purposes is Palm Bay, Florida, in Brevard County. His practice as a surveyor has been primarily in construction-related surveys and lot surveys, with very few parcel surveys. THE CHILCOTT SURVEY (COUNT I) In June 1984, Charles and Robin Chilcott purchased property on Grant Road, in Brevard County, consisting of approximately 1.44 acres of undeveloped land. The Chilcotts acquired the parcel with the intent to construct a home and keep their horses. Shortly after purchase, the Chilcotts retained Moyer to prepare a boundary survey of the parcel. The cost of the survey was $315.00 including $7.50 extra cost for two concrete monuments, rather than iron rods, at the front corners, as requested by the Chilcotts. The survey was performed on July 27, 1984, and Moyer was paid. He furnished the Chilcotts several sketches of survey which he had signed and sealed. In 1985, the Chilcotts hired a contractor, Casey Jones, and commenced building their house. At the request of Casey Jones, Moyer prepared both the foundation and final surveys. These two surveys were added to the boundary survey on September 26, 1985, and November 23, 1985, respectively. At the time that the field work on the foundation and final survey was done, Moyer detected no problems with the monumentation he had initially set in the boundary survey. He did not see any evidence that the monuments had been disturbed. The final survey shows the house to be 17.35 feet inside the east lot line. The Chilcotts wanted at least that distance because the area is zoned agricultural and they did not want the neighbor's livestock close to the house. They also understood that the county required a minimum 10-foot set-back. In connection with the construction of their home, and in reliance upon Moyer's survey identifying their property's boundary, the Chilcotts installed a well and a fence and had approximately 800 feet of sod planted along the east boundary. The Chilcotts have since learned that those improvements are not on their property and that their house is, in fact, only 7.25 feet from the lot line. In May, 1986, David Rothery, a Florida licensed land surveyor, performed a boundary survey of the Donald Waterbury parcel adjacent to and just east of Chilcott's land on Grant Road. Rothery checked and double-checked his field measurements and still found a ten foot discrepancy in the placement of the monuments on the eastern corners of the Chilcott parcel. Those monuments were ten feet too far to the east and were, therefore, placed ten feet within the Waterbury boundaries. He did not observe any indication that the monuments had been moved, and when he placed his corners for the proper boundaries, he found no evidence that monuments had ever been there before. As required, the monuments placed by Moyer had his identification on them. Rothery put a dotted line on his survey with the notation, "Apparent survey error on adjoining property by Walter Moyer Land Surveying". Rothery also called Moyer and told him about the discrepancy. On the morning of May 10, 1986, Moyer went back out to the Chilcott property and discovered that his monuments were ten feet too far to the east. He was in the process of moving them when he was confronted by Charles Chilcott. He told Chilcott that an error was made, that he "dropped ten feet". There was some discussion about possible remedies such as paying for the well and fence to be moved or buying the ten feet from Waterbury. Chilcott did not let Moyer finish moving the monuments. That night, Chilcott, who had never met Moyer before, but had only communicated by phone or in writing, called Moyer's house and confirmed that it was the same person he had seen moving the monuments. That was the last time Chilcott spoke with Moyer. Chilcott called Moyer's house several times over the following months, but always reached Mrs. Moyer and his phone calls were not returned. Moyer did contact Waterbury about purchasing the ten foot strip. Waterbury was concerned about how this would affect his eventual ability to build on his lot and refused to sell. Waterbury is not pressing the Chilcotts about their encroachments; he simply expects to have the matter resolved sometime in the future. By a letter dated 8/18/86, the Chilcotts requested damages of $2,500.00 from Moyer, including an estimate of costs to move the well, fence and a power pole and to replace sod. On September 13, 1986, another letter from Chilcott to Moyer listed the same plus additional damages, for a total demand of $4,025.00. In a letter to Chilcott dated August 27, 1987, Moyer offered to pay the application fee to seek a variance from the setback requirement and offered to provide a final survey and half the cost of moving the well. The letter denied that the problem was Moyer's fault and said that Moyer believes that the markers were moved between the date the survey was completed and the date of the foundation. The Chilcotts rejected that offer. No evidence in this proceeding supports Moyer's contention that the Chilcotts or someone else moved the monuments he originally set in 1984. The evidence does establish a strong circumstantial basis for finding that the monuments were not moved, but were incorrectly placed by Moyer at the time that the boundary survey was completed. Setting the monuments properly is an essential component of conducting a boundary survey. Moreover, when a subsequent final survey is done, it is the duty of the surveyor to assure that the original monuments have not been disturbed during construction and site work by a contractor. Assuming that Moyer is correct in his contention that the monuments were moved after they were set by him, but before the foundation was placed, it was his duty to discover that fact. He did not, since his final survey shows that the house is 17.35 feet from the boundary, whereas the house is, in fact, approximately seven feet from the adjoining property. Except when witness monuments are used, as when a tree or other obstruction sits on a boundary corner, it is a violation of standard surveying practice to place a monument other than where it is shown on the survey drawing. In this instance, the drawing is accurate; as described in the Chilcott deed, the northeast corner of their property is 600 feet from the section corner. There was no need for witness monuments here; yet the east boundary monuments are ten feet off and are 590 feet from the section corner. There is no overlap in the legal descriptions of the Waterbury and Chilcott properties to account for the overlap in monuments discovered by David Rothery, the Waterbury surveyor. Surveying is a system of checking measurements. Both human and equipment errors in the profession are neither rare nor entirely common. Even the most up-to-date electronic equipment is subject to discrepancies. Checking and rechecking field measurements helps alleviate errors. The minimum technical standards developed by and for the profession are intended to reduce errors, although it is not clear that slavish adherence to those principles will absolutely prevent any possibility of error. When errors do occur, the standard of the profession is to work with the client to resolve the problem. In some cases, this may mean the purchase of the client's property or adjoining property if the party is willing to sell. Moyer's limited offers do not meet the established standards of the profession. THE BURGOON-BERGER SURVEYS COUNTS II AND III On August 21, 1986, Moyer signed and sealed a survey sketch of Lot 22, Block 2245, Port Malabar, Unit 44, in Brevard County Florida for Burgoon-Berger Construction Co. The survey of Lot 22 showed the drawing of an improvement within the boundaries of the lot with a notation, "FOUNDATION FF ELEV 25.86." Next to the date on the survey is the abbreviation, "FND". The survey was submitted to the Palm Bay Building Department on August 26, 1986, the day before the pre-slab inspection. A pre-slab inspection is done before the slab is poured; therefore, at the time the survey was signed and sealed, the concrete slab had not yet been poured. On October 20, 1986, Moyer prepared a sketch of survey of Lot 7, Block 1054, Port Malabar Unit 20, in Brevard County, Florida for Burgoon-Berger Construction Co. The survey sketch indicated an improvement within the boundaries of the lot, with the notation, "FOUNDATION FF ELEV 26.87". Next to the date on the survey is the notation "FND". The survey was submitted to the City of Palm Bay on October 28, 1986. The pre-slab inspection was done by the City on October 22, 1986. Again, the survey was signed and sealed before the slab was actually poured. The notation, "FOUNDATION FF ELEV", is commonly understood to mean "foundation, finished floor elevation". "FND" is commonly understood to mean "foundation". Moyer, himself, has used both notations to signify those common usages. Foundation is generally accepted in the land surveying profession to mean something permanent and constructed, like a concrete slab, not bust the ground or wooden form boards used to guide the pouring of the slab. A survey which depicts an improvement with the note, "FOUNDATION FF ELEV", when the floor has not been finished misrepresents the status of the construction of that project. Reviewing personnel at the Palm Bay Building Department rejected the surveys and alerted the City's Flood Plain Administrator. That individual, Maria Parkhurst, reported the incidents to the Department of Professional Regulation. Lots 22 and 7 are both in the flood plain and slab elevation is significant, as the City must assure that federal maximum elevation requirements are met. The City requires the submission of surveys containing slab elevation data. Banks also rely on foundation surveys submitted by contractors in order to determine the state of construction before the release of a foundation draw. That is, before the contractor is entitled to partial payment for his work, the bank needs to know if the work has been done. Both Moyer and his client, Bergoon-Berger, intended the notation in these cases to mean "finished form", not "finished floor". Burgoon-Berger had Moyer perform a survey after the wooden form boards were constructed, but before the concrete slab was poured, in order to assure that the house was placed properly on the lot. The survey was somehow submitted prematurely to the city, whereas because Moyer and his client intended that the poured slab be re-surveyed before the sketch was submitted. When the survey for Lot 7 was resubmitted to the City on October 31, 1986, the slab had been poured and, while the elevation remained the same, the size of the fireplace foundation was slightly smaller. The notation, "FOUNDATION FF ELEV" remained the same, with nothing on the face of the survey sketch to indicate that this later version was the finished floor, rather than the finished form. Moyer no longer uses these abbreviations. A survey is not valid until it is signed and sealed, but once it is signed and sealed, it signifies to the client and to the public at large that the information provided therein is true and accurate. The standard of professional land survey practice dictates that abbreviations which are not commonly accepted should be explained on the face of the drawing. The professional standards also dictate that even if a client asks for certain information on a survey, in anticipation that other third parties might rely on the survey the professional should either refuse to indicate improvements that do not exist yet or indicate unambiguously that the improvements are intended, but still under construction. Notwithstanding Bergoon-Berger's and Moyer's intentions with regard to the two surveys at issue, Moyer failed to meet professional standards when he signed and sealed those surveys and released them to his client.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final Order be issued finding Respondent guilty of Counts I, II and III of the Amended Administrative Complaint and placing him on probation for a period of two years, under such conditions as the Board may deem appropriate, including, but not limited to the participation in continuing professional education courses and the pursuit of a reasonable resolution to the Chilcott's boundary problems arising from the Respondent's negligence in performing their survey. DONE and RECOMMENDED this 3rd day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1987. APPENDIX The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner (Count I) Adopted in Paragraph 1. Adopted in Paragraph 2. 3-4. Adopted in Paragraph 3. Incorporated in Part in Paragraph 1., as to the limitation of experience, otherwise rejected as immaterial. Rejected as immaterial. Adopted in Paragraph 3. Adopted in part in Paragraph 3, otherwise rejected as unnecessary. 9-10. Rejected as unnecessary. Adopted in Paragraph 12. Rejected as unnecessary. Adopted in Paragraph 4. 14-18. Adopted in Paragraph 3 and 4. Adopted in Paragraph 11. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 11. 23-28. Adopted in Paragraph 7. Rejected as unnecessary. Adopted in Paragraph 7. Adopted in part in Paragraph 8, however the accurate date is May 10, 1986, and the evidence is inconclusive as to whether Moyer spoke to either of the Chilcotts before coming back. This fact is not material. 32-33. Adopted in Paragraph 8. 34. Rejected as cumulative and unnecessary. 35-37. Adopted in substance in Paragraph 8. Rejected as cumulative and unnecessary. Adopted in Paragraph 9. Adopted in part in Paragraph 9, otherwise rejected as unsubstantiated by competent evidence and immaterial. Adopted in Paragraph 6. 42-43. Rejected as cumulative. 44. Adopted in substance in Paragraph 10. 45-47. Rejected as cumulative. 48-49. Adopted in Paragraph 12. 50-51. Rejected as cumulative and unnecessary. Adopted in Paragraph 13. Rejected as cumulative. 54-55. Adopted in Paragraph 14. (Counts II and III) Adopted in Paragraph 1. Adopted in Paragraph 15. Adopted in Paragraph 16. 4-6. Adopted in Paragraph 17. Adopted in Paragraph 20. Adopted in Paragraph 21. Rejected as unnecessary. Adopted in Paragraph 18. Adopted in Paragraph 25. Adopted in Paragraph 18. Rejected as cumulative. Adopted in substance in Paragraph 25. Rejected as unnecessary. Adopted in Paragraph 23. Rejected as unnecessary. Adopted in Paragraph 25. Respondent Adopted in Paragraph 1. 2-5. Addressed in Background. Adopted in Paragraph 2. Adopted in Paragraph 3. 8-11. Rejected as immaterial. 12-13. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 7. Adopted in part in Paragraph 7. Adopted in Paragraph 7. Rejected as contrary to the weight of evidence, except for the fact that the Chilcott house is 7 feet from the boundary. That fact is adopted in Paragraph 6. 19-20. Adopted in substance in Paragraph 8. Adopted in Paragraphs 9, 10, and 14. Adopted in Paragraph 10. Rejected, except as adopted in Paragraph 10. 24-25. Rejected as unnecessary. Adopted in Paragraph 11. Adopted in part in Paragraph 14, otherwise rejected as unsupported by the weight of evidence. Adopted in substance in Paragraph 13. Rejected as immaterial. While the boundary depiction is accurate, the placement of the house is in error on the final and foundation surveys and, of course, the markers are erroneously set. 30-33. Addressed in Background. 34. Adopted in Paragraphs 15 and 17. 35-36. Adopted in part in Paragraph 22, otherwise rejected as contrary to the weight of evidence. 37-38. Rejected as immaterial. 39. Adopted in Paragraphs 19 and 22. 40-44. Rejected as immaterial. COPIES FURNISHED: DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JAMES P. BEADLE, ESQUIRE 5205 BABCOCK STREET N. E. PALM BAY, FLORIDA 32905 ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
Findings Of Fact The Respondent is registered with the Board as a land surveyor. He holds registration number 2027. During October, 1976, Harold J. Read, Jr., a construction contractor, retained the Respondent to make a survey of lots 9067 and 9068, on block 294, in the Florida Shores subdivision, unit number 10, located in Volusia County, Florida. The lots were owned by Read, and it was his intention to construct a house on the lots for resale. Read needed the survey in order to clear the land, and to properly locate the house on the lots. On October 8, 1976, a survey team employed by the Respondent went to the site to perform the survey. The lots are located on Royal Palm Drive. The southeast corner of the lots is located 120 feet from the corner of Royal Palm Drive and 26th Street. The survey team located the concrete monument or survey marker at the northwest corner of Royal Palm and 26th Street, and set a "tin tab" in the middle of Royal Palm Drive extending directly across the street from the permanent monument. A "tin tab" is a metal disc approximately twice the size of a quarter which is used by surveyors to make appropriate markings in the middle of streets. The tin tab is nailed into the street. The survey team then measured 120 feet along the center of Royal Palm Drive and set a tin tab which was directly across from the southeast corner of the lots. The team then measured 80 feet further along Royal Palm Drive and set a tin tab to designate the northeast corner of the lots. All of the lots in the Florida Shores subdivision are 40 feet by 125 feet, therefore the two lots owned by Read had an 80 foot frontage on Royal Palm Drive. The team measured directly from the tin tabs over to the edge of the Royal Palm Drive right-of-way and located the corners of the lots. Spaces were cleared and iron pipes were placed in the ground to mark the corners. Next to each pipe, a four foot long piece of wood lath was placed approximately eight inches in the ground, and yellow flags were tied to the stakes. These stakes were placed at the corners in order to allow the owner to easily see the locations of the corners. Four foot long stakes were used because the lots had not been cleared and the growth was rather heavy. When the southeast and northeast corners were located in this manner, the survey team performed a similar operation to locate the southwest and northwest corners. The team did not determine these corners by measuring 125 feet from the eastern corners because of the thickness of the underbrush. Instead, the team measured down 26th street 125 feet, and set the western corners walking along a cleared electrical wire right-of-way. Iron pipes and wood stakes with yellow flags were placed at each of the western boundaries. The survey team was at the site for approximately one and one half hours. Iron reinforcing rods which appeared to be markings from previous surveys were found at at least two of the corners, and in order to set the iron pipes, the survey team needed to clear underbrush. On October 13, 1976, Harold Read, several of his employees, and a dozer operator who he had hired to clear the lots appeared at the lots to clear them, and to locate the house. They found stakes somewhat shorter than those placed by the surveyors. One of the Board's witnesses testified that these stakes had yellow flags tied to them, but the rest of the witnesses testified that the flags were orange. At least two, and possibly three of the stakes were located next to iron pipes which appeared to be the corner markers. Read assumed that these stakes marked the corners, and he instructed the dozer operator to clear the property accordingly. After the lots were cleared, Read, with his employees, located the house on the lot so that there would be approximately ten feet between each end of the house and the northern and southern boundaries of the lots. Read then commenced to build the house, and in January, 1977, the house was nearly completed. In order to complete financing arrangements the lending institution that had been utilized by Read requested that the lots be resurveyed in order to assure that the house was appropriately located. On January 29, 1977, the Respondent went to the lots to perform the resurvey. He found that the lots had been cleared twenty feet too far south, and that the house had been located so that it encroached by ten feet into the lot which directly adjoined Read's lots to the south. He checked and found that the tin tabs placed by his crew were still in the center of Royal Palm Drive designating what would have been the correct boundaries of the lot. He did not find the pipes that would have marked the correct corners, so he reset pipes at the appropriate corner locations. Thereafter the Respondent checked the information with his survey team, and verified that the original survey had been done correctly. He then contacted Read about the discrepancies. Read, the Respondent, and several others visited the site later that day. The Respondent denied, and continues to deny, that the original survey was conducted improperly. Read has consistently maintained that he correctly followed the stakes that were at the site. No explanation was offered at the hearing, and it does not appear that any of the parties have evidence which would explain how the stakes and pipes came to be moved from the correct locations on October 8, when the survey was conducted, to incorrect locations on October 13, when the lots were cleared, and the house was located. It affirmatively appears from the evidence that the Respondent's crew properly performed the survey and that the Respondent was not responsible for the stakes being moved. Evidence contrary to this finding has been considered and rejected.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2015.
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact At all times pertinent to the allegations involved in this administrative hearing, the Respondent, Dennis Heasley, was a licensed land surveyor having been issued license number LS 3466 by the State of Florida. In January 1981 Respondent was an employee of James Bushouse and Associates, a land surveying firm. On January 31, 1981, MidSouth Engineering (MidSouth), a licensed land surveying company, entered into a contract with Figg and Muller Engineers, Inc., and the State of Florida, Department of Transportation, to provide engineering and land surveying services for the new Sunshine Skyway Bridge project. On June 10, 1981, MidSouth entered into a contract with Bushouse for Respondent, Heasley, and other Bushouse employees to perform some of the land survey services called for in the contract MidSouth had with the Department of Transportation. Thereafter, MidSouth entered into an agreement with Respondent Heasley and one Jorge R. Saniz providing that, for a fee of $200,000.00 Heasley and Sainz would provide land surveying and consulting services to MidSouth for its work under its state contract. On or about June 26, 1981, Heasley and Sainz began their work under the agreement with MidSouth, and the work called for by the agreement was satisfactorily completed by July 31, 1981. Thereafter, Heasley billed MidSouth for the unpaid remainder of the contract price and was paid. The contract between MidSouth and the State of Florida provided for payment by the State based on crew day rates wherein the State would pay so much money per crew day expended. The work in issue here was to take no more than 85 crew days with an upper limit on payment to be approximately $300,000.00. Respondent actually completed the work in 34 days. His speedy completion of the job resulted in MidSouth receiving less under its contract than anticipated. Shortly after completion, he became an employee of MidSouth. In the course of his continuing employment, he worked on some other aspects of the bridge project that were awarded to MidSouth. Respondent's lump-sum contract with MidSouth called for payment to him of $200,000.00. Out of that sum he was supposed to pay all his and Sainz' job expenses which included the salary, housing, and feeding of the employees he hired to perform the actual surveying work. His understanding with MidSouth called for him to utilize approximately 12 to 16 crew members. During the time the work was being performed, Respondent and Mr. Sainz rented a house near the work-site in which crew members were provided a place to live. Food paid for by Respondent Sainz was provided as were laundry facilities. The sums paid for these items as well as the transportation of the workers and the worker's salaries were to come from the $200,000.00 fee paid by MidSouth. Payments were made on the basis of periodic draws. Either Heasley or Sainz would contact MidSouth and state that some money was required for expenses and a sum was furnished. As this sum was expended Respondent would ask for more. He indicates that the relationship was like a game in that he asked for as much as he thought he could get and MidSouth would pay as little as it thought it could get away with. In any event, no actual per diem monies were paid by Respondent to the employees who were working on the survey crew. Respondent admits that during the 34 days this arrangement was in effect, he kept very few records and receipts. He relied on MidSouth to keep all the expense records and whatever receipts he received for money spent, he sent in to MidSouth which made up the payroll for Heasley and Sainz' crew members from the times he called in. Several months after the subcontract between Heasley, Sainz, and MidSouth was completed, Heasley was called by Tom Heinly, Executive Vice- President of MidSouth and his immediate supervisor, with a request that he, Heasley, prepare, sign and submit a list of per diem expenses for the crew which worked on the contract referenced above. In the course of the conversation, Heinly asked that it be prepared a certain way. In response, Respondent told Heinly that he could not do that because he had not paid the money as per diem payments but had provided payment in kind in the form of food, lodging, and laundry. Heinly advised Respondent to think about it and later called back again asking that Heasley prepare and sign a statement indicating per diem money paid. Heinly argued that MidSouth was entitled to the money and asked that Heasley do this as a favor. Again, Heasley refused. The third time Heinly called Heasley, he indicated that the list would be strictly a memorandum between Heasley and MidSouth to account for some of the money advanced by MidSouth and that the list had nothing to do with the State. Heinly assured Heasley that the improper, inaccurate list would not go to the State since this was one of Heasley's concerns. Heinly indicated that he had talked with representatives of the State and had been assured that it was legitimate to file an invoice such as this. Heasley was led to believe that the State would not reimburse MidSouth for advances made for in-kind payments but would reimburse for actual per diem expenses. Ultimately, since Heasley was convinced by Heinly that MidSouth was entitled to be reimbursed for these monies and since, to the best of his recollection, he, Heasley, had paid out in in-kind expense a sum similar to that claimed on the per diem list, it would be all right to so certify. Therefore, he agreed to sign the list after the third request. The list which Heasley signed was prepared by MidSouth personnel, not Heasley, and was brought to Heasley by Mr. Duffer, MidSouth's chief accountant. Respondent does not recall going over the list at the time he signed it and verified neither the names nor the amounts set out thereon. When he checked it over much later, he found that some of the names on the list should not have been there. Respondent admits signing the document and admits that the document as signed was false. When investigators from the State Attorney's Office initially talked with Mr. Heasley about this incident he was less than forthright. Though they had advised him they were investigating the relationship between MidSouth and the Department of Transportation, the tenor of their questions indicated to him that they were investigating him and his answers were evasive and, in fact, erroneous. However, when he subsequently found out the nature of the investigation, he attempted to get word to the investigators that he would like to continue the discussion. He was unable to do so, however, and was not interviewed by these officials again. He was, however, subsequently interviewed by Mr. Cartwright who, in mid to late 1981, was conducting an investigation into the MidSouth, Heasley and Sainz relationship with the Skyway Bridge project. An engineer with the State had expressed some concern regarding invoices submitted by MidSouth and the preliminary inquiry showed some cause for concern. As a result, a full investigation was begun which revealed that MidSouth had little if any documentation to cover invoices submitted to the State. It also showed that the company's accounting procedures and internal control were almost nonexistent. As a part of the investigation Cartwright interviewed Heasley who admitted that he had signed the documents referred to above regarding per diem payments. Heasley also admitted that in some cases the payees did not receive the money claimed but in his opinion, the bottom line balanced out and MidSouth was entitled to the total sum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Dennis Heasley's license as a land surveyor in the State of Florida, be placed on probation for a period of two years, under such terms and conditions as shall be established by the Board of Land Surveyors, and that he be reprimanded and pay an administrative fine of $1,000.00. DONE AND ENTERED this 16th day of January 1985 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January 1985. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 E. C. Deeno Kitchen, Esquire Melissa Fletcher Allaman Post Office Drawer 1170 Tallahassee, Florida 32302 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether to approve the Petitioners’ application for a beneficial use determination (BUD) regarding their property on Ramrod Key, Florida, and if approved, to determine the type of relief that is appropriate.
Findings Of Fact The following findings of fact are taken from the parties’ joint pre-hearing stipulation, and the direct evidence adduced at the hearing. The Property The Petitioners’ property is located at 475 Brown Drive, Ramrod Key, in Monroe County. According to the Monroe County Property Appraiser, the size of the site is 0.95 acres. The property is vacant and contains disturbed and undisturbed wetland habitat. The property’s immediate vicinity is described as residential development of single-family units to the west and south, environmentally sensitive lands to the south and east, and open water to the north. The property is legally described as “being a portion of Tract ‘A’, Ramrod Shores Third Addition, according to the plat thereof, as recorded in Plat Book 6, Page 108 of the Public Records of Monroe County, Florida” having real estate number 00209971-004600. The property’s current Land Use Map Zoning Districts are Improved Subdivision (IS) and Native Area (NA). The property’s Future Land Use Map (FLUM) designations are Residential Medium (RM) and Residential Conservation (RC). The Tier Designation is Tier III Infill Area. Relevant Prior County Actions On December 19, 1972, the Monroe County Board of County Commissioners (BOCC) passed Resolution No. 146-1972 approving the Plat of Ramrod Shores Third Addition and filed for record in Plat Book 6 at Page 108 of the Public Records of Monroe County. The landowner was James M. Brown, as Trustee. The subject property is within Tract A of this plat. In 1986, Monroe County adopted a revised set of zoning regulations via Ordinance No. 33-1986. Ordinance No. 33-1986 also approved a revised series of zoning maps (also known as the Pattison Maps) for all areas of the unincorporated county by reference. With the adoption of the 1986 Land Development Regulations and zoning maps, most of the Petitioners’ property was designated as IS zoning with a small portion as NA. In 1992, a revised series of zoning maps were approved (also known as the Craig Maps) for all areas of the unincorporated county. With the adoption of the revised (Craig) zoning maps, the Petitioners’ property remained designated as IS with a small portion as NA. In 1993, the County adopted a set of FLUM maps pursuant to a joint stipulated settlement agreement and section 163.3184, Florida Statutes. BOCC Ordinance No. 016-1993 memorialized the approval. The FLUM maps took effect in 1997 after approval from the state land planning agency. With the adoption of the FLUM maps, the Petitioners’ property was designated as RM and a small portion as RC. On March 23, 2015, the Petitioners were provided a Letter of Current Site Conditions for the subject property. The letter summarized the environmental habitats on the property and the applicable portions of the Comprehensive Plan and Land Development Code. The letter stated the KEYWEP score for disturbed portions of the wetland was 4.45. The score of 4.45 means the property was buildable, disturbed wetlands. The undisturbed wetlands consist of tidal mangroves and were by definition “red flag” wetlands. Disturbed wetlands may be developed under section 118-10, Monroe County Code. Development is not permitted in undisturbed wetlands where 100 percent open space is required. On November 24, 2015, the Petitioners applied for a building permit to construct a single-family detached residential dwelling unit. On December 4, 2015, the County’s Planning and Environmental Resources Department (the Department) sent the Petitioners a notice that the Department denied their building permit application number 15106233. The notice informed the Petitioners that the Department’s decision may be appealed within 30 calendar days. No appeal was filed to challenge the propriety of the Department’s decision. The Department’s December 4, 2015, notice stated that the Ramrod Shores Third Addition Plat shows that the Petitioners’ property is located within Tract A. Although Tract A was subdivided into seven parcels, this was never shown as lots on an approved and duly recorded plat. The Department determined that the property did not meet the definition of “lot” in section 101-1, Monroe County Code, and did not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit. See § 130-157, Monroe Cnty. Code. On December 7, 2016, the Department received the agent’s BUD Application, File No. 2016-202. On December 22, 2016, the Department sent the agent a Notice of Deficiencies pursuant to section 102-105, Monroe County Code, after the application was reviewed by staff to determine if the application was complete and included the materials and information listed in section 102-105(b). On January 6, 2017, the Department received additional materials and information from the agent. On January 27, 2017, the Department notified the agent that the application was determined to be sufficient. On March 28, 2017, the Department forwarded the BUD application to DOAH for adjudication. After the Petitioners sought to amend their application with a new basis for relief, DOAH relinquished its jurisdiction. On June 12, 2017, the Petitioners submitted an Amended BUD Application to the Department. After sending a second Notice of Deficiencies and receiving additional materials and information from the agent, the Department determined that the application was sufficient. The Amended BUD Application was suspended for 60 days, pursuant to BOCC Resolution No. 214-2017, as a temporary emergency measure after Hurricane Irma made landfall in the Florida Keys on September 10, 2017. On November 9, 2017, the Department forwarded the BUD Application to DOAH for adjudication. Petitioners’ Actions The Petitioners purchased the subject property on April 23, 1990. Between 1990 and 1991, the Petitioners submitted an application to the Department of Health and Rehabilitative Services (HRS) for an on-site aerobic septic system. At first, the HRS denied the application based on lot size issues. The HRS Variance Review Board recommended disapproval of the septic system application on June 7, 1991, on the grounds of insufficient lot size and an illegal canal. After the Petitioners failed to obtain HRS approval in 1991, they took no further steps to develop the property until they submitted an application for a Letter of Current Site Conditions on January 30, 2015, and an application for a single- family residence on November 24, 2015. Mr. Olynger testified that the Petitioners purchased the property because of the ocean view and expected to build a house on the property. He testified that after the HRS denials in the early 1990s, he started the process of trying to develop the property again in 2014 because central sewer was now available. IS Land Use District Due to the density requirements for the IS Land Use District of one dwelling unit per lot, the Petitioners are unable to construct a single-family home, which is an as-of- right use in the IS Land Use District. The IS Land Use District permits other as-of-right and conditional uses. While Mr. Olynger disputed the economic productivity of some of these uses, it was not disputed that the property could potentially be used for (a) recreational purposes; (b) a community park; (c) beekeeping; (d) wastewater system; (e) Rate of Growth Ordinance (ROGO) points or transferable development rights (TDRs); or (f) sold to a neighbor for open space, yard expansion or an accessory use, such as a pool. Mr. Bond testified that that the County’s Comprehensive Plan and Code allow landowners competing for the limited number of building allocations in the point-based ROGO to buy and donate vacant parcels such as the subject property to increase their ROGO scores. The subject property qualifies as a ROGO Lot and there is an active secondary market of people buying and trading ROGO Lots in Monroe County. Mr. Bond also testified that the Petitioners could apply for Future Land Use Map and Land Use (Zoning) District Map amendments to a category that would allow for the construction of a single-family dwelling based upon an adopted acreage density standard. The Petitioners have not made any such applications. There was no direct evidence on the fair market value of the property, as encumbered by the regulation.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny the Petitioners’ application for relief under section 102-104, Monroe County Code. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2018.
The Issue The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3) , Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing. WITNESSES AND EXHIBITS Petitioner testified in this cause and offered two exhibits which were received. Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.
Findings Of Fact Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.) Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.
