Findings Of Fact At all times relevant hereto, respondent, Narcisco J. Ramirez, held land surveyor license number LS0002779 issued by petitioner, Department of professional Regulation, Board of Professional Land Surveyors. Respondent currently operates a land surveying firm known as South Atlantic Services of Florida, Inc. located at 7350 Southwest 41st Street; Miami, Florida. Respondent received a two year degree in civil engineering from City College of San Francisco in 1969 and has worked for various firms as a land surveyor in the Miami area since 1971. He has been a registered land surveyor in Florida since July, 1975. In March, 1984, respondent was contacted by a real estate salesman and requested to perform a "boundary survey" and "sketch" of a parcel of land owned by one M. P. Smith McNiely. The land in question involved various lots, including Lots 23, 25-30, 34-36 and 38 located in a subdivision known as DeSoto Heights which lies adjacent to Southwest 304th Street, Southwest 105th Terrace, and Southwest 168th Street in Dade County, Florida, just north of the City of Homestead. The property was to be sold, and the survey was intended to assist the seller in determining a sales price on the property. Ramirez interpreted the request to mean that only a "preliminary sketch" would be initially done, and if requested by the owner, a "complete survey" would be performed at a later date. He was paid $650 for the initial work, and expected an additional fee of $2,500 to $3,000 for the complete survey. According to Ramirez, a preliminary sketch is not as accurate as a complete survey, has substantially less information, may contain errors, and does not require a certification by the surveyor that it meets all required professional standards of surveying. Ramirez assigned the field work to an employee named Roberto Collado, who no longer lives in Florida. The field work consisted of determining the property corners, and providing a sketch to the real estate salesman. Ramirez did not certify that minimum technical standards had been met but did sign and seal the drawing on March 22, 1984. At the same time he provided the following certification: I HEREBY CERTIFY: that the attached sketch of survey represents a recent survey made under my direction, and is true and correct to the best of my knowledge and belief. There are no encroachments unless shown thereon. Ramirez also added the following in bold lettering: NOTE: BOUNDARY SURVEY ONLY. No elevations secured or any other featured at the owners representative s request. A short time later, Frank Makowski, also a registered land surveyor and a former professional colleague of Ramirez some ten years earlier was contacted by an attorney (David Liebman) who was handling the sales transaction of McNiely's property. The closing was being held up because Ramirez's survey reflected a house sitting on both lots 36 and 37. Makowski was requested to verify the encroachment onto lot 36, and to ascertain the true location of the property boundaries. Makowski initially contacted Ramirez and requested a copy of his sketch and field notes. These were supplied by Ramirez, who gave no indication to him that the work was only "preliminary" in nature. Makowski then sent out a field team to survey the property. It found that the west boundary on the Ramirez survey was actually thirty-three feet off, which caused the purported encroachment on lot 36. The sketch made by Ramirez was deficient in a number of respects as established by uncontradicted expert testimony. To begin with, the parties have stipulated that the survey did not comply with the minimum technical standards for land surveying as set forth in Chapter 21HH- 6, Florida Administrative Code. These include Rules 21HH- 6.03(1), (2), (4), (6)-(8), (12), (18)-(20), and 21HH- 6.06(1), Florida Administrative Code, as alleged in the administrative complaint. For example, it contained no certification, did not reflect all bearings and angles, and monumentations were not set. In short, the Ramirez survey technique and procedure was not in conformance with the procedure required by generally accepted and prevailing standards of land surveying. Moreover, even though it was identified as a "boundary survey;" expert testimony established that the project was indeed a survey within the meaning of the term and it had to meet such technical standards or plainly provide a disclaimer to indicate that such standards were not met. In September, 1983, respondent was engaged by an engineering firm to "secure ground elevations along the above property (Southwest 168th Street and Southwest 192nd Avenue, Dade County) and then relate said elevations to a Dade County Bench Mark," and to "prepare a sketch of survey showing said existing ground elevations." For this he was to be paid $150. The property was owned by Alfred and Linda Wilson. Ramirez first obtained by telephone a bench mark on September 30, 1983; from the Dade County Surveying Department and then sent a field crew to complete the task. The bench mark he selected was across a canal and some three-quarters of a mile from the property in question in an area with heavy undergrowth. This made an accurate measurement more difficult to perform. The accuracy of vertical control surveys (elevations) is essential since this determines whether a parcel of land must have fill added in order to install a septic tank and well. It also affects the flood insurability of a home. Such surveys are subject to the minimum technical standards of the profession, as adopted by agency rules, unless the survey is a "specific purpose survey." In that event the same must be clearly stated on the face of the survey. In this case Ramirez, merely noted on the face of the sketch: "preliminary sketch, only elevations are included in this sketch of survey, no horizontal distances were measured nor controls set and distances shown along the sketch are for location purposes only." He also certified that "the elevations shown refer to a National Vertical Geodetic Datum of 1929, Bench Mark, were secured by us under my direction and are true and correct to the best of my knowledge and belief." Ramirez considered the project to be a "special purpose sketch" and therefore did not believe he had to certify that minimum technical standards had been met. Indeed, he conceded that such standards had not been met in preparing the documents. Makowski was requested to perform a survey on the Wilson property on June 12, 1984 to verify the accuracy of Ramirez s survey. He found the actual elevations to be approximately two feet lower than those reflected on Ramirez's sketch. 2/ The accuracy of Makowski's findings was corroborated by a survey previously performed by another surveyor in 1979. That survey, which is a public record on file with the Dade County Subdivision Control Department, indicated that because of the property's low elevation, fill was required to meet flood criteria. Through the testimony of Makowski and another expert land surveyor, James E. Beadman, it was established without contradiction that Ramirez's work failed to comport with minimum technical standards of the land surveying profession. For example, Ramirez had insufficient field notes, he used too few turning points, and did not perform a loop closure. Further, there is no bench mark description or certification by Ramirez on the survey, and Ramirez used a Linker rod to transfer elevations from one bench mark to another in contravention of accepted standards. Had Ramirez desired to qualify his elevation survey in accordance with agency rules, he should have identified his survey as a topographic survey and indicated that improvements were not located. By calling it an elevation survey, Ramirez did not change its true character of being a topographic survey. Rule 21HH-6.06, Florida Administrative Code, requires that when a survey is not performed, a surveyor should "state that such sketch is not a survey" on the face of the sketch. All other surveys must meet minimum technical standards, and by signing and sealing the drawings, a surveyor certifies as such. Ramirez justified his work in the McNiely project as being simply preliminary in nature. If he conducted a complete survey at a later time, he would then obtain more information, and correct any errors present on the initial drawings. Similarly, he viewed the Wilson survey as a special purpose sketch," and one not requiring compliance with minimum technical standards. Ramirez has performed hundreds of surveys in the past fifteen years; and there is no evidence of any formal disciplinary action having been instituted against him for negligence or misconduct. Both surveys were eventually performed in an accurate manner by Makowski. There were no complaints filed against Ramirez by either client. The complaint herein stems from Makowski who reported the alleged violations to petitioner after reviewing Ramirez's work.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this orders and that he be fined $1000 and placed on two years probation. All other charges should be DISMISSED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. Hearings Hearings DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 7th day of August, 1985.
Findings Of Fact The Department issued permit number AM146-10 to the Respondent, Melweb Signs, Inc., on May 2, 1984. This permit authorized the erection of an outdoor advertising sign on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County. A sign was erected pursuant to this permit. The Respondent's application for the subject permit represented that the sign site applied for was in an area that was zoned commercial or industrial. The Respondent's manager had inquired of county representatives what the zoning was at the sign site, and was informed that the area was zoned commercial. The Respondent's manager also had a map that showed the area to be zoned commercial or industrial, but this map was not a zoning map. It had been issued by a local canal district. When the Respondent's application was filed, the Department's inspector had been shown the map the Respondent's manager had, and when the inspector inquired of the county what the zoning was, she was informed that the area was zoned commercial or industrial. In reliance on the Respondent's map and on the information received from the county, as well as on the Respondent's application, the permit was approved. The Respondent had certified on its application that the sign to be erected would meet all of the requirements of Chapter 479, Florida Statutes. Subsequently, the correct zoning for the subject site was brought to the attention of the Department's inspector. The Respondent agrees that the area is actually zoned agricultural (A-I) not commercial or industrial. Thus, the Department issued its notice of intent to revoke the Respondent's permit on April 11, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that permit number AM146-10 held by the Respondent, Melweb Signs, Inc., be revoked, and that the sign erected by the Respondent on I-95 approximately 4,000 feet south of Orange Avenue in St. Lucie County, be removed. THIS RECOMMENDED ORDER entered this 10th day of December, 1985 in Tallahassee, Leon County, Florida. Hearings Hearings 1985. WILLIAM B. THOMAS Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 10th day of December, APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1746T Respondent's proposed findings of fact: Accepted. Accepted. Accepted. Accepted. Accepted. Nevertheless, none of the Respondent's proposed findings address the provisions of Section 479.08, Florida Statutes, authorizing permit revocation when "the permittee has violated any of the provisions of this chapter." COPIES FURNISHED: Charles G. Gardner, Esquire Haydon Burns Bldg., M.S. 58 Tallahassee, Florida 32301 Gerald S. Livingston, Esquire P. O. Box 2151 Orlando, Florida 32802-2151 Hon. Thomas E. Drawdy Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether the Respondent violated Chapter 479, Florida Statutes, by failure to obtain a state permit and whether Respondent is in violation of federal and state laws, rules and regulations applicable to outdoor advertising signs concerning setback and spacing restrictions.
Findings Of Fact A notice of alleged violation of Chapter 479 and Section 335.13 and Section 339.301, Florida Statutes, and notice to show cause was furnished Petitioner by certified mail dated the 16th day of December, 1976, and stamped at the Lamont, Florida Post Office December 18, 1976. The following signs are the subject of this hearing: A sign with copy reading "Pecans 3-lbs. $1.50" with an additional sign attached underneath reading "53.9" located at 1 and 6/10 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Pecans Fresh Shell $1.99) located 1 and 9/10 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Pecans 3-lbs. $1.50" located 2 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Exit Now Pecans Fresh Shell $1.99" located 2.05 miles west of Madison County line on Highway Interstate 10. A sign with copy reading "Exit Now Pecans 3-lbs. $1.50" located 2.2 miles west of Madison County line on Highway Interstate 10. No permits were secured for any of the signs which were erected subsequent to December, 1976, and visible from Highway Interstate 10 on the north side thereof. Each sign is outside an urban area. The distance and space between signs numbers 2, 3, 4 and 5 each is less than one thousand feet. Sign number 1 has the number 53.9 underneath the message advertising pecans. This number relates to the price of gasoline sold at Respondent's store wherein he sells gasoline and pecans among other things. Sign number 1 is approximately 15 feet from the fence line at the north boundary of 1-10; sign number 2 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 3 is located approximately 15 feet from the fence line on the north boundary of 1-10; sign number 4 is located approximately 15 feet from the right-of-way line, the fence, on the north side of 1-10; sign number 5 is approximately 2 feet from the fence line on the north side of 1-10. Sign number 5 is within the offramp section of the interchange of 1-10 and State Road 257. The subject signs stand fully visible approximately 15 feet from the fence which is the north boundary line of Interstate 10 a federal aid primary highway except sign number 5 which is less than 15 feet from Interstate 10. They are placed in an old grove in which there are less than 20 old pecan trees which do not produce the product advertised for sale. The subject signs advertise pecans that are sold at the business of Respondent which is a distance of at least 3/4 of a mile from the nearest sign.
Recommendation Take such action as the law permits including but not limited to the removal of subject signs. DONE and ORDERED this 30th day of March, 1977, at Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1977. COPIES FURNISHED: Philip S. Bennett, Esquire Ben H. Ervin, Esquire George L. Waas, Esquire 850 South Waukeenah Street Department of Transportation Monticello, Florida 32344 Haydon Burns Building Tallahassee, Florida 32304 Mr. O. E. Black, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. J. E. Jordan District Sign Coordinator, DOT Post Office Box 607 Chipley, Florida 32428 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION IN RE: FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 77-001T LYMAN WALKER, III, Respondent. /
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 herein, the Respondent, Division of Real Estate, was the state agency responsible for the licensing and regulation of real estate professionals in Florida. Petitioner was a licensed real estate salesperson in Florida whose license was listed with Horizon Appraisal Service, Inc. in Ft. Myers. In October, 1989, Clyde H. Ward applied to Goldome Realty Credit Corporation for a $40,000.00 fixed rate mortgage on his property located in Ft. Myers. On October 5, 1989, Goldome sent Mr. Ward a commitment letter for a mortgage initially described as a 30 year fixed rate mortgage, but which was, five days later, amended to a 15 year fixed rate mortgage at 10%, conditioned upon, among other things, a satisfactory appraisal. Consistent therewith, Goldome thereafter contacted its regular appraiser in the area, Horizon Appraisal Service, Inc., and requested that an appraisal of the property be accomplished. Horizon assigned the Petitioner, Ms. Wilcox, to conduct the appraisal. The original first page of her report indicated the property was a manufactured house with a crawl space, not situated on a slab. In reality, however, as was noted on the amended first page of the report, as of October 9, 1989, the property was not a manufactured house and was situated on a concrete slab without a crawl space. Goldome denied a fixed rate mortgage to Mr. and Mrs. Ward but offered them a one year adjustable rate mortgage. The Wards accepted this change under protest. A formal denial of the fixed rate mortgage was sent to the Wards on December 18, 1989 by a form which indicated that their application for the fixed rate mortgage had been denied for (1) inadequate collateral, and (2) "we do not grant credit to any applicant on the terms and conditions you request." The "inadequate collateral" basis for denial noted, however, that a mortgage had been offered, accepted and closed with the Wards under an adjustable rate bank loan. On February 16, 1990, Mr. Ward wrote to Goldome expressing his concern over the denial of the fixed rate loan and the basis for denial. In response to Mr. Ward's letter, on March 7, 1990, Mr. Krohe, Goldome's vice president for residential lending, wrote to Mr. Ward and clearly stated that Goldome's denial of the fixed rate mortgage was based on several areas in the appraisal that caused concern. Mr. Krohe specifically pointed out that the fact that the property was described in the appraisal as being a "mobile home" was not the only reason for denial. In his testimony, Mr. Krohe cited several other reasons for denial. One was that the appraiser indicated that the predominant value of homes in the neighborhood was $35,000.00 and Mr. Ward's application was for a mortgage in excess of that. It is Goldome's policy typically to not make a loan in excess of the predominant value since there would be no way to sell the loan in the secondary market. In addition, comments on the appraisal indicated that homes in the area were a mixture of mobile homes and small CBS or frame houses located on paved and graveled roads, and the homes in the neighborhood reflected average maintenance. The zoning classification for the property was MH-3, which permits mobile home use on the property. Further, the room sizes and layout was indicated as "fair to average" and the appraiser pointed out an incurable functional problem with the room layout. This problem related to the fact that the only full bathroom in the house was located between the master bathroom and the second bedroom and could be reached only through one of those rooms. Further, the appraiser indicated there were no recent sales similar to the subject property in the neighborhood and those sales which were comparable were noted to have superior construction and functional utility. Mr. Krohe pointed out that not one of those concerns by itself necessarily would have caused the fixed rate mortgage applied for to be declined. He notes, however, that underwriting is not a science, and all of those reasons combined caused the underwriter to decline the loan. Notwithstanding his receipt of this letter, Mr. Ward filed a complaint with the Division of Real Estate which was referred to Investigator John Harris for inquiry in March, 1990. During the course of his investigation, Mr. Harris spoke only with the Petitioner, Ms. Wilcox, and with Mr. Ward. On or about March 22, 1990, he met with Petitioner at her place of business, Horizon Appraisal Service. During the course of that interview, Ms. Wilcox admitted she had made a mistake on the first page of the appraisal report whereon the property w as described as a manufactured home situated on a crawl space without a slab. She indicated she had corrected the form as soon as she found out about the mistake, occasioned not by a written description but by check marks to pre- printed descriptions which were to be marked if appropriate. The work was done by typewriter, not by pen. Mr. Harris also interviewed Mr. Ward, but did not interview anyone else during his entire investigation even though Ms. Wilcox pointed out that information she had from Ms. Selph and Mr. Krohe indicated that the declination of the loan was not primarily based on this erroneous information. In fact, Ms. Wilcox requested that Mr. Harris contact both Selph and Krohe to verify this but he chose not to do so, relying instead on the information provided to him by Mr. Ward and the March 7, 1990 letter from Krohe to Ward which he interpreted as indicating the denial was based on the description of the property as a "mobile home." That letter does not so indicate, however, and clearly shows that any such classification was not the sole basis for denial of the loan. Notwithstanding this, Mr. Harris considered the fact that Ms. Wilcox admitted to making the mistake as tantamount to an admission of culpable negligence and he recommended that action be taken against her. Thereafter, the matter was referred to a probable cause panel of the Real Estate Commission which, on May 15, 1990, considered the allegations against Ms. Wilcox and, after a review of the file and a presentation by a counsel to the Board, found probable cause. Review of the transcript of the probable cause panel as it relates to Ms. Wilcox reveals that even there, the case was inaccurately described to the panel by its counsel who claims that, "the loan was rejected on the basis of the appraisal which incorrectly described the structure as a manufactured house with a crawl space and no slab." Counsel completely omitted any mention of any of the other bases for denial which were described by Mr. Krohe in his deposition of which the Department was notified but declined to attend, and which could have been determined by an appropriate investigation into the matter. The discussion by the panel members, as documented in the transcript of its meeting, in no way related to the particulars of the alleged misconduct but instead concerned itself primarily with the status of the appraiser. In short, it is clear that the probable cause panel's finding of probable cause was based only on its review of the completely inadequate investigation by Mr. Harris and the slanted comments of the panel's counsel. Nonetheless, an Administrative Complaint was filed against the Petitioner which alleged culpable negligence, breach of trust and misrepresentation and concealment. Prior to the hearing, the Board dismissed the allegation of misrepresentation and concealment. A hearing was conducted on the remaining counts on October 11, 1990 in Ft. Myers before H.O. Parrish. In her Recommended Order dated December 12, 1990, Ms. Parrish concluded that the Department had failed to establish the Respondent committed any misconduct; that Ms. Wilcox had accurately described and evaluated the home within customary ranges; and that the lender verified the reasons for denial of the requested mortgage were not related to the typographical errors pertaining to the type of home, the crawl space, and the slab. Ms. Parrish thereafter recommended a Final Order be entered by the Commission dismissing the Administrative Complaint and such an Order was entered. By Motion dated March 4, 1991, Petitioner's counsel sought reimbursement for the Petitioner of attorney's fees and costs relating to her defense against the allegations made against her in the Administrative Complaint. Respondent has stipulated that the amount claimed for the original representation is reasonable as to both hours claimed and fee per hour. It claims, however, that fees and costs are not reimbursable here because, (1), Petitioner is not a small business entity, and (2), the Division had probable cause to initiate the Administrative Complaint. Petitioner has also submitted an additional affidavit, subsequent to the hearing, in which she claims 7.1 additional hours, at $110.00 per hour, for services rendered subsequent to the final hearing in the original action. Petitioner claims to be an independent contractor to Horizon Appraisal Service, Inc.. She works strictly on commission. She has a desk at the Horizon office and keeps almost all her business information there. She has no other office. She cannot do appraisals for other brokers because she can work for only one broker at a time. She claims to be licensed as an appraiser in Florida but the licensure information on file with the Department of Professional Regulation as of September 4, 1990, reflects she is licensed only as a real estate salesman. By affidavit dated December 6, 1985, and attached to the Independent Contractor Agreement of equal date, Petitioner outlines her working conditions with Horizon. She pays all her own license fees and dues; she is responsible for her own auto and transportation expenses; she pays all her client development costs without reimbursement; she is not required to maintain any set working hours; she takes vacations when she pleases; she is not required to meet any quotas; she receives no minimum salary, sick pay or other fringe benefits; she pays her own income and FICA taxes; and the association with the broker may be terminated by either party at any time. Under the terms of the Agreement referenced above, Petitioner is to get 45% of the fee charged by Horizon for the appraisal done by her. Any lawsuits for the collection of appraisal fees must be maintained only in the name of the Broker, however, since the appraiser is considered to be a subagent. Though the appraiser may conduct the actual appraisal, the Agreement requires that these completed appraisals be submitted to the broker for review, and Mr. Krohe, of Goldome, indicated that his institution would accept only appraisals signed by the broker, not the appraiser. The agreement also stipulates that all clients brought in by the appraiser will result in an additional 10% fee split, and will remain clients of the broker upon termination of the agreement. Notwithstanding the appraiser can take vacations when desired and work when she pleases, she must, however, notify the broker a minimum of two weeks in advance of vacation time and call in on days when she will not be available. The appraiser agrees to a five day turnaround on appraisals, may not solicit listings for the transfer of property other than owned by her, and, significantly, may perform her services only for this broker, Horizon Appraisal Services, Inc.,
Findings Of Fact Two signs are located 0.8 mile west of State Road, 79 on Interstate 10, and 0.8 mile east of State Road 79 on Interstate 10. Both signs do not have permits attached to them. Both signs bear messages which are visible from the traveled way of Interstate 10. Neither sign is located within an incorporated municipality or town. Both signs advertise in part Simbo's Restaurant. Mr. Jim Williams, Outdoor Advertising Inspector for the Department of Transportation, testified that he had spoken with Mr. Simms on June 28, 1978. Williams stated that he asked Simms if Simms would remove the signs; however, Williams did not identify the signs to which he was referring. According to Williams, when Simms was asked if he would take the signs down, Simms stated he would leave them up and go to court. There was no substantial and competent evidence introduced that Simms was referring to the signs in question in this case. Both signs were measured by Charles Averitt, a surveyor with the Department of Transportation, and the sign 0.8 mile west of State Road 79 on Interstate 10 was determined to be 16 feet from the edge of the right-of-way of Interstate 10. The sign 0.8 mile east of State Road 79 on Interstate 10 was determined to be 16.5 feet from the edge of the right-of-way of Interstate 10. Gene Simms testified that he was the owner and operator of Simbo's Truck Stop and Restaurant. Simms testified the signs in question were the property of Simms' Enterprises, Inc., and had been at all times pertaining to this complaint. Simms stated that he owned 50 percent of the stock in Simms Enterprises, Inc., and the remainder was owned by his brother, Jimmy Simms. The notice of violation in this cause names Gene Simms as the Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation take no action regarding the subject DONE and ORDERED this 22nd day of March, 1979, in Tallahassee, Leon County, Florida STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1979. COPIES FURNISHED: Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Richard C. Hurst, Administrator Outdoor Advertising Section Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Mr. Gene Simms Simbo's Auto-Truck Stop and Restaurant Route 1, Box 186 Bonifay, Florida 32425
Findings Of Fact At all times relevant hereto, respondent, Bertin C. Tash, held land surveyor license number LS0002292 issued by petitioner, Department of Professional Regulation, Board of Professional Land Surveyors. Respondent currently resides at 1127 Broadway, Riviera Beach, Florida. Tash has held a license with the state since July 2, 1970, and has been in the surveying profession for some twenty-eight years. On or about November 11, 1983, respondent was contacted by a local mortgage broker and requested to perform a survey on a residence located at 2814 Saginaw Avenue, West Palm Beach, Florida. A survey was needed since the owner of the residence intended to refinance his property. Tash performed the survey, turned the same over to the broker, and was paid $125 for his services. The drawing was signed and sealed by Tash, and contained the following notation above the certification: "No Corner's Set-All Rights Reserved." There was no mention as to whether the minimum technical standards had been met. On at least three places on the document, Tash referred to the drawing as a "survey." On June 7, 1984, Craig L. Wallace, a land surveyor in Lake Park, Florida, sent a copy of Tash's drawing to the Board's Executive Director and asked if the notation above the certification was permissible, and whether Tash's failure to refer to minimum technical standards was correct. This inquiry prompted the instant proceeding and resulted in the issuance of an administrative complaint. It is undisputed that the document prepared by respondent is a survey and subject to the minimum technical standards set forth in Chapter 21HH-6, Florida Administrative Code. Expert testimony by witness George M. Cole, Jr. Established that the drawing did not conform with the minimum technical standards in various respects. It did not contain a certification that the minimum technical standards had been met or a description of the type of survey being depicted. It did not reflect the measured distance to the nearest intersection of a street or right-of-way nor did it depict the entire lot being surveyed. Additionally, only one angle was shown on the drawing although agency rules require that all angles and bearings be shown. Finally, there was no boundary monument set as required by the standards. These are required unless monuments already exist at such corners. Although Tash pointed out that fence posts embedded in concrete were already on the corners of the property, agency rules still require that alternative monumentation be set. All of the foregoing deficiencies are violations of the minimum technical standards required for surveys. However, none were intentionally violated. Respondent readily acknowledged that he performed the survey in question. However, he considered the survey to be "minor" since two had previously been performed on the same lot, and his was only for the purpose of refinancing the property. He attributed any deficiencies to poor judgment rather than an intentional violation of the law. Tash has been a professional land surveyor for some twenty-eight years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion. The complaint herein was initiated by another licensed surveyor and not by the consumer who used the survey. The survey was apparently satisfactory as far as the mortgage broker was concerned, and no problems arose at closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this order. The remaining charges be DISMISSED. Respondent's license should be placed on probation for ninety days and he should be required to pay a $500 administrative fine. DONE and ORDERED this 18th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
The Issue Eleven separate petitions were filed pursuant to section 120.535, F.S. alleging various non-rule policies of the Board of Professional Land Surveyors and requesting that those alleged policies be adopted by rule. The threshold issue in these cases is whether such policies exist; if so, it must be determined whether they are rules, as defined in section 120.52(16), and whether rulemaking is feasible and practicable, as provided in section 120.535(1), F.S. CASES NUMBER 94-0609RX - 94-0616RX The eight petitions in these consolidated cases are challenges to specific provisions within Chapter 61G17-6, F.A.C. (formerly 21HH-6, F.A.C.), "Minimum Technical Standards", relating to the practice of land surveying, adopted by the Board of Professional Land Surveyors. The issue in these cases is whether those specific provisions are invalid exercises of delegated legislative authority, as alleged by Petitioner. CASE NUMBER 94-0925F In this case, Respondent seeks attorney's fees and costs from counsel for Petitioner pursuant to section 120.57(1)(b)5., F.S. The issue, therefore, is whether an award under that section is appropriate. OTHER ISSUES Respondent does not dispute the standing of Petitioner in the sections 120.535 and 120.56, F.S. cases. Petitioner, in his proposed order, argues that he, not Respondent, is entitled to fees and costs. Petitioner also argues that his subpoena were properly served by mail on various board members. Those two issues are thus addressed in this order.
Findings Of Fact Gary A. Burden (Burden) is a professional land surveyor registered in the state of Florida pursuant to Chapter 472, F.S. The parties have stipulated that he is substantially affected by the rules of the Board of Professional Land Surveyors (Board). On June 22, 1993, the Department of Professional Regulation (now, Department of Business and Professional Regulation, DBPR) issued an administrative complaint alleging that Burden failed to follow minimum technical standards for land surveying in a boundary survey he performed for Lot 33, Lafayette Forest, in Seminole County, Florida. The complaint alleged seven specific deficiencies and cited the Board rule which applies to each. (Petitioner's exhibit Number 9) The seven specific violations are identified in a consultant's report dated April 1, 1993, from Dianne Jones, PLS, to the Board. (Petitioner's Number 10) Burden requested a formal hearing on the complaint and the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH Case Number 93-6433. On February 14, 1994, Hearing Officer, Ella Jane P. Davis issued an order on all motions pending as of that date. The order includes these pertinent provisions describing discussions at a January 20, 1994, conference call between the hearing officer and counsel for the parties: The undersigned also advised the parties that the instant Section 120.57(1), F.S. proceeding was not the appropriate vehicle to raise what appeared to be challenges in existing rules named in Respondent's affirmative defenses and that challenges to existing rules can only be initiated pursuant to Section 120.56, F.S. Further, the parties were informed that challenges to existing rules could not and would not be resolved by the Recommended Order to be entered in the instant Section 120.57(1), F.S. license disciplining proceeding. After hearing oral argument, the undersigned further requested that the parties file their respective memoranda as to whether the instant case had any Section 120.535, F.S. ramifications. Shortly after the January 20th telephone conference, Gary Burden, through counsel, filed the nineteen petitions that are the subject of this proceeding. The eleven petitions filed pursuant to section 120.535, F.S. request that these alleged policies of the Board be promulgated as formal rules: The Board's refusal to allow land surveyor registrants to incorporate other recorded instruments into their drawings by reference; The Board's determination of what constitutes "substantial compliance" to the minimum technical standards; The Board's application of a "substantial compliance" standard to probationary registrants, but a "strict compliance" standard to accused registrants. The Board's assessment of a single penalty, no matter how major or minor the offense; The Board's refusal to utilize the simple citation rule found at rule 61G17-9.004, F.A.C. (providing for disciplinary citation and fine); The Board's refusal to allow its registrants to mitigate damage to the public. The Board's equating the determination of boundaries to real property to the words contained in recorded deeds and plats; The Board's equating the standards of practice for "corners" with the standards of practice for "monuments". The Board's need to define the meaning of the term, "fixed improvements"; The Board's requirement that lot and block numbers be shown on a survey drawing in a specific location; and The Board's requirement that registrants measure distances and directions to "reference points". Burden did not testify at hearing, nor did he appear in person at the hearing. His single witness, Benjamin Paul Blackburn, has been registered as a land surveyor since 1969. Blackburn has been before the Board once on allegations of minimum technical standard violations, and the charges were dismissed; he has attended two Board meetings in the last year, and attended once in 1981 when the Board was promulgating rules. He has been an active member of the state professional association and was president of the association in the past. Blackburn was an articulate and sincere witness; however, he has no competent knowledge of the policies of the Board. His information comes from talking with other surveyors and from attending training seminars sponsored by the association. He freely admits that he has no direct knowledge of many of the policies alleged by Burden; in some instances his understanding of the Board's policy is contrary to that alleged by Burden. For example, Blackburn believes the Board has allowed surveyors to mitigate damages; he also believes the Board allows incorporation by reference on surveys and maps. Counsel for Burden attempted to compel the appearance of Board members by mailing subpoena to them, certified mail, with witness checks enclosed. On the advice of counsel that the service was defective, the members did not appear. Documents sought by the subpoena duces tecum were voluntarily produced by the Board's Executive Director, an employee of the DBPR, Angel Gonzalez, to the extent that he was able to obtain the documents and records. Diane Jones has been registered as a land surveyor for seven years and worked as an intern in the field for fifteen years. She has been employed by DBPR in the past as a consultant in cases the agency brings to the Board. She was a consultant in the Burden case. Ms. Jones was unable to confirm that the alleged policies were, in fact, Board policies. Her understanding was similar to Blackburn's, generally. In her capacity as consultant to DBPR in discipline cases, she has no difficulty interpreting and applying the minimum technical standards or other rules of the Board, based on her knowledge of the rules and her professional experience. In addition to alleging unwritten policies by the Board, Burden challenges a series of existing Board rules which he claims are invalid exercises of legislative delegation. For each rule that is a subject of his petitions, he claims invalidity based on excess of rulemaking authority, enlargement or modification of the law, vagueness and capriciousness. More specifically, Burden claims the following: a) Rules 61G17-6.002(2) and 61G17-6.002(6)(g), F.A.C. (defining "corner" and "land or Boundary Survey", respectively) illegally attempt to grant the land surveyor the right to establish or re-establish "boundary lines"; b) Rule 61G17-6.003(4), F.A.C. illegally requires a basis of bearing to be shown; c) Rule 61G17-6.003(8)(a), F.A.C. is non-specific about the location of lot and block numbers on a survey drawing; Rule 61G17-6.003(15), F.A.C. illegally requires land surveyors to state certain unnecessary data for survey corners. Rule 61G17-6.003(18), F.A.C. illegally requires the land surveyor to place almost all abbreviations in a legend or not use such abbreviations; Rule 61G17-6.003(13), F.A.C. illegally requires the land surveyor to show unidentified "fixed improvements"; Rules 61G17-6.003(8)(c) and (d) illegally require a land surveyor to perform a comparative analysis to reference points other than those described at Rule 61G17-6.002(5), F.A.C.; and Rule 61G17-6.003(10), F.A.C. illegally requires the land surveyor to show adjoining elements and rights of way which are shown on instruments incorporated by reference into the survey drawing. 11. Rules 61G17-6.002(2) and 61G17-6.002(6)(g) provide: (2) Corner: shall mean a point on a land boundary that designates a change in direction, for example: points of curvature, points of tangency, points of compound curvature and so forth. . . . (6) Survey: shall mean the orderly process of determining data relating to the physical or chemical characteristics of the earth, and may be further defined according to the type of data obtained, the methods and instruments used, and the purpose(s) to be served. All surveys showing land boundary information must be in accordance with Rule 61G17-6.003. For purposes of this rule, types of surveys shall include the following definitions: . . . (g) Land or Boundary Survey: shall mean a survey, the primary purpose of which includes, but is not limited to, the determining of the perimeters of a parcel or tract of land by establishing or re-establishing corners, monuments, and boundary lines for the purposes of describing, locating of fixed improvements, or platting or dividing the parcel. According to Blackburn, the deed rather than the surveyor establishes the land boundaries. This argument or fact does not provide a basis to invalidate the rules as the rules do not require or allow a surveyor to create boundaries as an extent of legal possession. Rather, the purpose of the rules is clearly stated in (6)(g). The language of the rules is consistent with treatises and textbooks that are nationally recognized. The American Congress on Surveying and Mapping (ACSM) and the American Society of Civil Engineers (ASCE) jointly adopted this definition in 1978: Land surveying is the art and science of: (1) Re-establishing cadastral surveys and land boundaries based on documents of record and historical evidence; (2) planning, designing and establishing property boundaries; and (3) certifying surveys as required by statute or local ordinance such as subdivision plats, registered land surveys, judicial surveys, and space delineation. Land surveying can include associated services such as mapping and related data accumulation; construction layout surveys; precision measurements of length, angle, elevation, area and volume; horizontal and vertical control systems; and the analysis and utilization of survey data." (Respondent's exhibit Number 2) 12. Rule 61G17-6.003(4), F.A.C. provides: (4) A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat." References to Magnetic North should be avoided except in the cases where a comparison is necessitated by a Deed Call. In all cases, the bearings used shall be referenced to some well-established line. Both parties' experts agree that the purpose of this rule is to relate the property surveyed to an established line so that subsequent surveyors could retrace or reconstruct what the surveyor did with regard to angles and the like. "Assumed north" is simply a direction assumed and does not relate to a compass direction. If only angles are shown, and no bearings, the rule does not apply. Bearings are a way of indicating angular relationships; an angle can be developed from the bearings. The rule legitimately fulfills its purpose of avoiding ambiguity. 13. Rule 61G17-6.003(8)(a), F.A.C. provides: Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: The lot(s) and block numbers or other designation, including those of adjoining lots. This is not a complicated rule. Showing the lot numbers helps interpret and orient the map. Even though the title of the survey or text on the survey may identify the lot number of the lot being surveyed, including the number on the face of the drawing makes the survey easier to read. 14. Rule 61G17-6.003(15), F.A.C. provides: (15) The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments, as defined herein, unless monuments already exist at such corners. All monuments, found or placed, must be described on the survey drawing. When the property corner cannot be set, a witness monument shall be placed with data given to show its location upon the ground in relation to the boundary lines or corner. The corner descriptions shall state the size, material, and cap identification of the monument as well as whether the monument was found or set. The distance along boundaries between monuments shall not exceed fourteen hundred feet. When a parcel has a natural and/or an artificial feature such as a roadway, river, lake, beach, marsh, stream or other irregular boundary as one or more of its boundaries, then a monument meander or survey line shall be established either directly along or near the feature. Dimensions shall be shown between the meander or survey line and the boundary line sufficient to show the relationship between the two. Even though monuments may be accidentally or deliberately moved by contractors, property owners or neighbors, the monuments are still an important feature of a survey. A prudent surveyor would not rely on an existing monument without looking for signs of disturbance and verifying its placement. The efficiency of showing and describing a monument outweighs any danger of including it. 15. Rule 61G17-6.003(18), F.A.C. provides: ABBREVIATIONS: Abbreviations generally used by the public or in proper names that do not relate to matters of survey are excluded from the legend requirement. Acceptable abbreviations on the face of maps, plats, or survey drawings are: N = North S = South E = East W = West or any combination such as NE, SW, etc. . = Degrees ' = Minutes when used in bearing " = Seconds when used in a bearing ' = Feet when used in a distance " = Inches when used in a distance AC = Acres + = More or less (or Plus or Minus) Any other abbreviations relating to survey matters must be clearly shown within a legend or notes appearing on the face of the drawing. Blackburn contends that the legend requirement is time-consuming, expensive and unnecessary. A surveyor, however, is not required to use abbreviations. To the extent that they are used, they should be explained on the face of the document. A legend facilitates interpretation of the survey and eliminates questions or ambiguities. The rule establishes some clear exceptions to the legend requirement in subsection (b). According to Diane Jones, subsections (a) and of the rule are vague and confusing. In her opinion, every abbreviation that is not addressed in subsection (b) should be explained in a legend on the survey. She, therefore, would prefer to see everything explained on the face of the document, while Petitioner prefers to dispose of the legend altogether. Reasonable minds plainly differ; although the rule could be improved with rewording, as suggested by Ms. Jones, it is not invalid for the reasons advanced by Petitioner. 16. Rule 61G17-6.003(13), F.A.C. provides: (13) Location of fixed improvements pertinent to the survey shall be shown upon the drawing in reference to the boundaries, either directly or by offset lines. If fixed improvements are not located or do not exist, a note to this effect shall be shown upon the drawing. Pertinent improvements are improvements made for the enjoyment of the property being surveyed and shall include docks, boathouses, and similar improvements. According to Blackburn, inclusion of fixed improvements on the survey should depend on what the client has ordered. He also feels the rule results in surveys that are misleading to the public as the inclusion of any fixed improvements would imply that those are the only fixed improvements in the area. These concerns are mutually inconsistent. The rule is clear and unambiguous. It is also consistent with accepted principles of land survey practice. 17. Rules 61G217-6.003(8)(c) and (d), F.A.C. provide: (8) Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: . . . A comparison between the recorded directions and distances with field measured directions and distances to the nearest street centerline, right of way intersection or other identifiable reference points where the block lines are straight. A comparison between the recorded directions and distances or computed directions and distances based upon the recorded data with field measured directions and distances to an identifiable reference point where the block lines are curved. The requirements of these rules are clear to a practicing land surveyor. "Reference point" is described in rule 61G17-6.002(5), F.A.C. as ". . . any defined position that is or can be established in relation to another defined position." Contrary to Petitioner's assertion, there is no conflict between the requirements of (c) and (d), and the definition of "reference point". 18. Rule 61G17-6.003(10), F.A.C. provides: (10) All recorded public and private rights of way shown on applicable recorded plats adjoining or across the land being surveyed shall be located and shown upon the drawing. Easements shown on applicable record plats or open and notorious evidence of easements or rights of way on or across the land being surveyed shall be located and shown upon the drawing. If streets or street rights of way abutting the land surveyed are not physically open, a note to this effect shall be shown upon the drawing. If location of easements or rights of way of record, other than those on record plats, is required, this information must be furnished to the surveyor. This rule requires that specific information be included even when that information may already be found on material incorporated by reference, like a plat, for example. The rule serves the legitimate purpose of saving the user from time consuming research. The survey should stand alone as a complete document. In summary, the rules at issue are valid and reasonably clear and consistent with establishing principles guiding the practice of professional land surveying. According to Brown, Robillard, and Wilson, Evidence and Procedures for Boundary Location, 2nd Ed (Respondent's Ex. 2): A plat should tell a complete story; it should show sufficient information to allow any other surveyor to understand how the survey was made and why the survey was correct. It also should show complete information on encroachments to enable any attorney or others to evaluate properly the effect of continued possession. (p.350) . . . A plat should be complete in itself and should present sufficient evidence of monuments (record and locative) and measurements so that any other surveyor can clearly, without ambiguity, find the locative points and follow the reasonings of the surveyor. A plat does not show the client's land alone; it shows all ties necessary to prove the correctness of location. If it is necessary to measure from a mile away to correctly locate a property, that tie, as measured, is shown. (p. 360) There is no evidence in this proceeding that either party or attorney filed pleadings or papers for any improper purpose, such as delay harassment, increase in cost or otherwise. The petitions are numerous, but they relate to rules or alleged policies at issue in a separate disciplinary action, and, on their face, they raise legitimate issues. Respondent's defense was necessary and appropriate.
