The Issue Whether or not the Respondent, Kenneth Kasha, is now and was at all times alleged, a registered real estate broker, and from January 31, 1974, to January 7, 1975, an active firm member of International Land Services Chartered, Inc., a registered corporate broker, and was acting in that capacity. Whether or not from January 31, 1974, to January 7, 1975, the Respondent, in the capacity of active firm member of International Land Services Chartered, Inc., solicited by telephone and mail, property owners nationwide, on the subject of their real property interest in the State of Florida, to obtain a fee in return for a listing to sell property; by representing and holding out to the property owners that a bona fide effort would be made to sell the property so listed with International Land Services Chartered, Inc. Whether or not the representation holding out that a bona fide effort would be made to sell the property listed with international Land Services Chartered, Inc., was false and was known to be false when made. Whether or not property owners acted in reliance of the comments by Respondent, Kenneth Kasha, and listed their property for sale with International Land Services Chartered, Inc. and paid a listing fee. Whether or not the solicitation of property owners nationwide was wholly a scheme to fraudulently secure money from the public, i.e., the advance listing fees, for reason that no bona fide effort was made to sell the properties so listed with International Land Services Chartered, Inc. Whether or not by reason of the foregoing, the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or devise, or breach of trust in a business transaction in this state; and has violated the duty imposed upon him by law or the terms of a listing contract in a real estate transaction; and has formed an intent, design, or scheme to engage in said misconduct and has committed an overt act in furtherance of such intent, design, or scheme in violation of 5475.25(1)(a), F.S. Whether or not for the reason of the foregoing factual allegations set forth above, the Respondent is guilty of a conduct of practices which show that he is so dishonest and untruthful that the money, property, transactions and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, all in violation of 5475.25(3), F.S.
Findings Of Fact From January 31, 1974, to January 7, 1975, the Respondent, Kenneth Kasha, was an active firm member of International Land Services Chartered, Inc. and was acting in the capacity of registered corporate broker. He was a holder of certificate number 0133731 during that time sequence. That license was held with the Florida Real Estate Commission, the Petitioner. Beginning with January 31, 1974, and continuing to the present, Kenneth Kasha was also the holder of what is now certificate number 0046189, held with the Florida Real Estate Commission by Kenneth Kasha as real estate broker to trade as Florida Landowners Service Bureau. During the tenure of his affiliation with International Land Services Chartered, Inc., from January 31, 1974, to January 7, 1975, Kenneth Kasha was the Secretary of that corporation. (The facts of his Iicensure by the Petitioner and his affiliation with the International Land Services Chartered, Inc., are more completely described in the Petitioner's Exhibits 4 and 10, admitted into evidence.) In the pendancy of his service for the above-mentioned corporation, Kenneth Kasha was involved in the advertising of properties which had been solicited from out-of-state owners who owned land in the State of Florida. His involvement in this advertising is established by the Respondent's Exhibit No. 10 admitted into evidence. Through this exhibit it is demonstrated that the International Land Services Chartered, Inc., was advertising with the National Multiple Listing, Inc. More specifically, the invoices in the exhibit have assigned reference numbers which correspond to the advertising sheet which was placed with the National Multiple Listing, Inc. These sheets would show a number of listings of property which had been solicited from out-of-state owners who had paid a fee for the right to have their properties listed through International Land Services Chartered, Inc., who in turn advertised in National Multiple Listing, Inc. The circulation of those listings may he traced by taking the reference number in the left margin on the individual listing sheet of National Multiple Listing, Inc., found in the Respondent's Exhibit No. 10, and comparing this with the certificates of circulation which are Respondent's Composite Exhibit No. 12, and which have a comparable reference number affixed. By doing this, it can be seen that the circulation of the individual listing sheets by National Multiple Listing, Inc., numbered as many as 2,500 contacts. An examination of the advertising done through National Multiple Listing, Inc., demonstrates that a potential purchaser could not determine the exact location of the land. At best that purchaser could locate the subdivision and development, municipality and/or county and state and the general size of the tracts of land. Some of the property does not have a purchase price. Therefore, the quality of the advertising that was done is somewhat suspect. At the time the International Land Services Chartered, Inc., was billed, it was in the name of Kenneth Kasha, who tendered payment in behalf of International Land Services Chartered, Inc. Moreover, when the International Land Services Chartered, Inc., had signed an agreement with National Multiple Listing, Inc., to have the latter corporation do the advertising for International, it had signed in the person of Kenneth Kasha and took effect on March 1, 1974. The period of the contract was for one year and this is shown by Respondent's Exhibit No. 8 admitted into evidence. A further understanding of Kenneth Kasha's involvement with the listings of out-of-state owners of Florida property through International Land Services Chartered, Inc., may be found in the testimony of Marvin Rothstein. Roths to in worked for the corporation approximately 3 or 4 weeks full time and then part time and in total obtained 10 or 15 listings for the benefit of the corporation. Mr. Rothstein described the technique for listing the out-of-state owners of Florida property with International Land Services Chartered, Inc. (These listings have been referred to as "advance fee" listings, and will be so referenced in the balance of this Recommended Order.) Mr. Rothstein had seen an advertisement in the paper placed by International Land Services Chartered, Inc., advertising for the employment of real estate salesmen. He answered that advertisement and was interviewed by Kenneth Kasha for a job with the subject corporation. Kasha explained to Rothstein that his duties would be to contact people by phone and find out if they would like to have their property listed. There were 4 or 5 other salesmen involved in International Land Services Chartered, Inc's, employ whose function it was to make the contacts and solicit listings. The salesmen worked in the evening hours 3 or 4 hours a night and would call the out-of-state owners and ask if they wanted to list their property with the corporation, International Land Services Chartered, Inc. The corporation had given the salesmen so-called lead cards to contact the people. (The office in which the salesmen were ,working was a very small office with 5 or 6 phones.) Mr. Rothstein described the contact with the out-of-state owners to be one to obtain a listing, in opposition to an effort to try and sell the property of the out-of-state owner. Mr. Kasha was the supervisor of the activities of the salesmen who were working at night. Through the Rothstein testimony, it is established that there was a script which the salesmen were called upon to follow. The salesmen would introduce themselves to the prospective landowner/client and ask if the landowner would be willing to list their property for resale. If the owner was interested, certain materials were mailed to the owner for their perusal, prior to any agreement for resale. The mailouts were made after positive responses that Mr. Rothstein would be given when he made his inquiry about listing the property. Mr. Rothstein is unfamiliar with the materials that were mailed out. He was never responsible for making a second contact with the parties initially solicited. He does know that a fee was charged for listing the property with International Land Services Chartered, Inc., and the purpose of the fee was explained to the parties to be for expenses for listing the property and for whatever other expenses that might be incurred by the corporation. Rothstein is unfamiliar with what the exact expenses would have been for the corporation to fulfill the functions of taking care of listings. To Rothstein's recollection, the amount of fee for listing was $25 or $50, that is the amount he would receive for obtaining a listing agreement with the out-of-state owner. He is not certain what the International Land Services Chartered, Inc., received as their portion of the listing fee. There was no agreement that Rothstein himself would be compensated by commission should the property be sold. Rothstein was also unfamiliar with the method which the corporation used to arrive at an asking price for the listed property. Rothstein was unaware of any appraisals that may have been done by the corporation during the tenure of his employment with the corporation. His knowledge of the advertising method was that there were multiple listings. These multiple listings would equate to the form of listings placed with the National Multiple Listing, Inc. One other matter that was discussed in the initial solicitation, was the fact that the possible purchasers of the land were constituted of foreign as well as domestic buyers. This comment was in connection with the overall statement that the owners were being solicited for a listing to bring about the resale of the property. Rothstein said that he did not know of any sales of the property during the time he worked for International Land Services Chartered, Inc. An examination of the Petitioner's Exhibit No. 6, which is a profit and loss statement for the period in question, indicates that income derived from the International Land Services Chartered, Inc.'s business activities far exceeded advertising and other expenses labeled as selling expenses. That document, Petitioner's Exhibit No. 6, does not indicate whether there was income derived from sources other than the "advance fee" listings. Moreover, there was no testimony given in the course of the hearing which would clearly identify the amount of money that was received from owners who desired the services of the "advance fee" listing. Finally, the Petitioner has failed to demonstrate through competent evidence the true nature of the specific details of the follow-up written information which was submitted to the potential client once that client had been solicited in the initial contact phase. On balance there is insufficient testimony to prove that the solicitation of the property owners was a scheme to fraudulently secure money from the public through "advance fee" listings, or that no bona fide effort was made to sell the properties that were listed with International Land Services Chartered, Inc. Consequently, the Petitioner has failed to show that the Respondent, Kenneth Kasha, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device or breach of trust in a business transaction in this state; or that Kenneth Kasha has violated the duty imposed on him by law or the terms of listing contract in a real estate transaction, or that he has formed an intent, design or scheme to engage in said misconduct or has committed an overt act in furtherance of such intent, design, or scheme in violation of 475.25(I)(a), P.S. Furthermore, the Petitioner has failed to establish that Kenneth Kasha is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions, and rights of investors and those with whom he may sustain a confidential relation may not safely be entrusted to him, in violation of 475.25(3), P.S.
Recommendation It is Recommended that the Administrative Complaint brought against the Respondent, Kenneth Kasha, who is now licensed by the Petitioner, Florida Real Estate Commission, under certificate number 0046189, as a real estate broker, he dismissed and set aside. DONE and ORDERED this 17th day of February, 1973, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Louis Guttmann, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 Mr. Kenneth Kasha Post Office Box 611238 North Miami, Florida 33161
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 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.
The Issue The issue is whether the Respondents are subject to discipline for offering and selling lots in a subdivision. The Department contends that the Respondents were required to obtain an order of registration before selling land, and to comply with other requirements with respect to their sales practices. The Respondents contend they are exempt from the registration and other regulatory requirements.
Findings Of Fact The Division is the state agency responsible for the enforcement of the Florida Uniform Land Sales Practices Act, Chapter 498, Florida Statutes. Orlando East Corporation is a Florida corporation formed in 1980 by Robert J. Loughlin which engages in the business of selling unimproved real estate in the State of Florida. It is not a government agency. Robert J. Loughlin is the President and sole shareholder of Orlando East Corporation. Between 1980 and 1986 the corporation acquired title to approximately 97 lots in the Partin Park Subdivision, a plated subdivision which contains 768 lots located in Orange County, Florida. The plat is recorded in Plat Book N at page 67 in Public Records of Orange County. The subdivision was originally approved by the Board of County Commissioners of Orange County, on February 9, 1926. On April 15, 1980, Orlando East purchased lots 1-24 and 25A in block 5 of the subdivision and lots 24-48 in block 14; on December 5, 1985, the corporation purchased lots 1-24 in block 8 of the subdivision; on June 27, 1986, the corporation purchased lots 25-48 of block 8 of the subdivision. Obviously, Orlando East Corporation is not the original subdivider of Partin Park. The Respondents have offered for sale, and sold 60 of the lots they had purchased in Partin Park by conveying 3-lot parcels in 20 sales transactions. Some of the parcels were sold by agreements for deed (nine sales), or by warranty deed or exchange agreements (11 sales). The relevant documents were executed by Mr. Loughlin on behalf of the corporation. All sales took place before February 16, 1987. One of the purchasers under an agreement for deed was Shirley Katonka. Mr. Loughlin solicited purchasers for the parcels owned by Orlando East through long distance telephone calls to out-of-state purchasers. The Respondents have not obtained an Order Of Registration to sell the lots under Sections 498.005(12), and 498.029, Florida Statutes. Neither do the Respondents have a current Public Offering Statement approved by the Division for the lots offered for sale or sold in the Part in Park subdivision. None of the land conveyed by Orlando East Corporation in the subdivision was sold as part of a reservation program approved by the Division under Section 498.024, Florida Statutes. None of the lots were re-platted after Respondents purchased them. The lots were not offered for sale as cemetery lots. The offer to sell parcels in Partin Park subdivision was not registered with the Florida Department of Banking and Finance, Division of Securities, nor with the United States Securities and Exchange Commission. The sales of each 3 lot parcel in the subdivision were for $5,000 or less. The parcels were sold without any residential or commercial buildings located on them and without the obligation of Orlando East Corporation or Mr. Loughlin to construct residential or commercial buildings on them for the purchasers. The Division had not granted an order exempting Part in Park subdivision from the registration requirements of Chapter 498 Florida Statutes, before any of the 20 sales were made by the Respondents. None of the 20 purchasers the Respondents solicited for sales received a synopsis, which had been approved by the Division, of the sales script used in conjunction with the long distance telephone solicitations. The original plan Orlando East Corporation and Mr. Loughlin had for the distribution of the lots was to sell all lots to fewer than 45 persons. This was accomplished by grouping the lots into parcels of 3-lot units. There were no covenants, declarations, or legal restrictions on the property which prohibited Orlando East Corporation from disposing of the property as individual lots. One of the reasons lots were sold in 3-lot units was to provide a purchaser a large enough piece of property so that the owner might be able to build a house on it, after obtaining a variance from the local government. The property was not sold as a home-site subdivision, however. The individual lots as plated measured 25' x 140', but the 3-lot units meet the county requirements that building lots have 75 feet of frontage and a minimum of 10,000 square feet. Of the eleven agreements for deed, eight of the original purchasers are making payments on their lots. Ms. Shirley Katonka cancelled her purchase several years ago. The Respondents are receiving a gross income of $750 per month for the eight active agreements for deed. The monthly expenses of operation for the Respondents' business is between $300 and $350 per month, leaving the Respondents a net profit of between $400 and $450 per month for the eight active contracts, assuming the purchasers continue to pay under their agreements for deed. Orlando East Corporation currently has $450 in the bank. Respondents are not offering or selling lots now, but are awaiting the outcome of this proceeding. There is no evidence that the Respondents have been selling lots in Partin Park under a common promotional plan with any other person or entity, and the Division does not contend that they are involved in a common promotional plan with any other person or entity. The Respondents argue that their subjective plan of disposition for their 97 lots is determinative of whether they are entitled to an exemption from the registration requirements of Section 498.025(1)(d), Florida Statutes. They contend that their plan of distribution would have provided for no more than 32 sales.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents to be subject to Chapter 498, to have violated Section 498.051(1)(a) and (d), fining them $1,000 each, and requiring them to give purchasers the opportunity to rescind their purchases under Sections 498.023(2)(c) and 498.051(3)(a), Florida Statutes. DONE and ENTERED this 24th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 90-1904 and 90-2515 Rulings on findings proposed by the Department: Adopted in Finding 2. Adopted in Finding 2. Implicit in Finding 3. 4 - 7. Adopted in Finding 3. To the extent necessary, adopted in Finding 2. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 2. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9, but amended to reflect the figure of $5,000. 18 and 19. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Adopted in Finding 16. Rejected as argument. Rulings on findings proposed by the Respondent: Adopted in Finding 1. Adopted in Finding 2. Adopted in Findings 2 and 3. Rejected as unnecessary. Rejected as unnecessary. Rejected as a conclusion of law. Adopted in Finding 4. Adopted in Findings 4 and 5. Rejected as unnecessary, but implicit in Finding 4. Rejected as unnecessary. Only the conduct of the Respondent is at issue here. Implicit in Finding 12. Implicit in Finding 12, although there is no legal impediment to selling individual lots. Adopted in Finding 12, except for the final sentence which is rejected as unnecessary. Adopted in Finding 12. Implicit in Finding 12. Sentence one adopted in Finding 4, the remainder rejected as a conclusion of law. Adopted in Finding 7. Adopted in Finding 13. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 15. Rejected as irrelevant. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 16. 28 - 30. Rejected as unnecessary, because the Division's policy is derived from the language of the act and is consistent with the decision in Associated Mortgage Investors v. Department of Business Regulation, 503 So.2d 379 (Fla. 1st DCA 1987). COPIES FURNISHED: Calvin L. Johnson, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Matthew Carter, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact At all pertinent times respondent Amons D. Courtney, Jr., has been registered as a professional land surveyor holding license No. LS 002819 issued by petitioner. By order entered October 3, 1985, in case No. 0052302, the Board of Professional Land Surveyors placed respondent on probation for the second time. As a condition of probation, he was required to submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the Board for its review. . . . Five surveys shall be submitted within three months from the filing of the final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Petitioner's Exhibit No. 11. As far as the evidence disclosed, Mr. Amons submitted the requisite number of surveys for review, within the times specified by the Board's order, but pertinent record plats did not always accompany these submissions. Among the surveys submitted to the Board in accordance with the probation condition was a survey done for James Harvey by Mr. Courtney, doing business as "Courtney-Tisdale Ent., Inc." Petitioner's Exhibit No. 1. "Courtney & Tisdale Ent., Inc." has never been licensed in Florida, nor did petitioner ever issue a certificate of authorization to any such entity. Petitioner's Exhibit No. 8. Among the surveys Mr. Courtney furnished to the Board in accordance with his probation condition, was one he did for Cynthia Cotton. On this survey, respondent failed to report or resolve a discrepancy between a distance he had measured, as reported in field notes, and the calculated distance he set out without qualification, on the survey. He also reported the length of one side of the lot as precisely 125 feet, despite the absence of any field notes to support this conclusion. Petitioner's Exhibit No. 3. Mr. Courtney performed a survey of a rectangular lot for Kim Shepherd, and subsequently furnished a copy of it to the Board. The accuracy of this survey is open to serious question. Petitioner's survey reported lengths for the lot's sides that correspond precisely to what appears on the record plat. This is also the case with the angles the sides form when they meet, even though "it's almost impossible to repeat [such measurements] to the nearest second of ar[c]." T.123. The field notes reflect no measurements that would support these findings. Mr. Amons reset a back monument nevertheless. Petitioner's Exhibit No. 4. On the Larry Holly survey, also chosen by respondent for Board review, Mr. Courtney failed to disclose a discrepancy between the measured distance, as reported in field notes, and a distance set out on a record plat. Petitioner's Exhibit No. 5. On the Robert and Connie Baxley survey, Mr. Courtney indicated a discrepancy between the south boundary line and a fence along the line but did not show whether the fence encroached on the Baxley property or on the neighbor's. Petitioner's Exhibit No. 6. The field notes reflect "a startling lack of precise measurements." On the Randy Enslow survey, too, the field "notes are insufficient to support the precision of the measurements that are shown . . ." T.13l. The survey is not tied to the closest street corner or to any other outside reference point for control. In short, even though the Board's final order in case No. 0052302 left it to respondent to select "representative" surveys for review, the surveys he submitted, twenty in all, were riddled with errors, including errors and omissions that constituted negligence in the practice of surveying. The uncontroverted evidence established that "Mr. Courtney is either unable or unwilling to comply with the Minimum Standards based on the surveys that were submitted by him under probation." T.134. As to penalty only, petitioner proved that respondent was a subject of disciplinary action in case No. 33882, before either the present proceedings or the proceedings that eventuated in the probation order were instituted.
Recommendation Under Rule 22 HH-9.002, Florida Administrative Code, permissible penalties for these offenses range from reprimand to revocation "depending upon severity of offense and injury to the client or public". No injury was proven here, but expert testimony established the seriousness of the negligence. Also pertinent under Rule 22 HH-9.003, Florida Administrative Code, are previous offenses, respondent's disciplinary history, and "status of the . . . licensee at the time the offense was committed", Rule 22 HH-9.003(1)(f), Florida Administrative Code, all of which weigh against respondent, and financial hardship for the licensee, as to which there is no evidence. It is, accordingly, RECOMMENDED: That petitioner revoke respondent's license to practice land surveying. DONE and ENTERED this 20th day of November, 1989, at Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-2743, 89-3399 Petitioner's proposed findings of fact Nos. 1 through 6 and 18 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 7 through 13 are properly proposed conclusions of law. Petitioner's proposed findings of fact Nos. 14 through 17 relate to subordinate matters. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 R. Glenn Arnold Warfield, Santurri & Arnold 25 West Cedar Street Post Office Box 13410 Pensacola, Florida 32591 Amons D. Courtney, Jr. Route 4, Box 892 Milton, Florida 32570
Findings Of Fact The signs in question are located on Interstate 10, an interstate highway. One sign is located one-half mile west of the intersection of Interstate 10 and State Road 79, and the other sign is located one mile east of said intersection. The first sign is located 120 feet and the second sign located 130 feet from the nearest edge of pavement of Interstate 10. Neither sign is located within an incorporated city or town, and neither has been issued a permit as required by Section 479.07, Florida Statutes. The owner of the signs holds leases from the owners of the land upon which the signs are located. The signs were constructed in the first week of December, 1978, after Interstate 10 was opened to public use and accepted as part of the interstate system. On July 2, 1979, Holmes County duly adopted a comprehensive land use plan, which provides in pertinent part as follows: It is the intent of this plan that a strip of land 50 feet wide, lying on either side of I-10 and extending east and west one mile from S.R. 79 interchange and one mile from S.R. 81 interchange, be considered commercial, for the express purpose of allowing the business of Holmes County to place signs along the side interstate highway, and be in conformance with the provisions of Chapter 479, Florida Statutes. Both signs in question are located in the area described above in the comprehensive land use plan. Having adopted the comprehensive land use plan, Holmes County is now developing its zoning plan in the manner outlined in Chapter 163, Florida Statutes. However, the zoning ordinance has not yet been adopted by Holmes County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, tee Hearing Officer recommends that the Department of Transportation net grant permits to the subject signs and, having been found in violation of Section 479.07, Florida Statutes, said signs be removed. DONE and ORDERED this 13th day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 James E. Moore, Esquire 102 Bayshore Drive Post Office Box 746 Niceville, Florida 32578
Findings Of Fact Based upon my review of the entire record, including the transcript of the proceedings and documentary evidence, I make the relevant findings of fact. At all times material to the Administrative Complaint filed herein, Respondent, John D. Holt, was licensed as a Professional Land Surveyor in the State of Florida and held License No. 0002665. On July 28, 1986, the Board of Professional Land Surveyors entered a Final Order in Case No. 0059729 (DOAH Case No. 86-4449), a prior disciplinary action against Respondent. The Final Order in DPR Case No. 0059729, adopted and incorporated a stipulation executed by the Department of Professional Regulation and John D. Holt on April 18, 1986. A copy of the Final Order was mailed to Respondent. The Final Order in DPR Case No. 0059729 placed Respondent on probation for twenty-seven months. During the course of the twenty-seven month probation, the Final Order required Respondent to pay an administrative fine of $750.00. This fine was to be paid within thirty days from the date the Final Order was filed. Also, the Final Order required Respondent to complete the first available seminar on the Minimum Technical Standards held within his area and to submit twenty-five (25) surveys accompanied by field notes at designated intervals. With regard to the submission of surveys, the relevant part of the stipulation provides that the Respondent shall ...submit to the Board at the end of three (3) months of probation, and again, at the end of nine (9) months, 15, 21, and 27 months of probation, five (5) land survey projects each, accompanied by field notes. As regards these 25 land surveys and field notes, it is Respondent's responsibility to ensure that such reports are submitted to the Executive Director of the Board in compliance with this paragraph in a timely manner. Respondent paid the $750.00 administrative fine as required by the Final Order. However, Respondent failed to complete the first available seminar on Minimum Technical Standards as required by the Final Order. In fact, there was no evidence that Respondent completed any seminar on the Minimum Technical Standards prior to the end of his twenty-seven month probationary period. Respondent failed to submit the requisite number of surveys and field notes for review by the Board within the time specified by the Board's order. The evidence shows that Respondent submitted no surveys or field notes for Board review during the twenty-seven month probationary period. By Final Order entered on February 5, 1990, in DPR's Case Nos. 106764 and 107454, the Board suspended Respondent's license for a period of twenty-four months. Pursuant to the Stipulation, which was incorporated in to the Final Order, the suspension was stayed to allow for a twenty-four month period of probation, during which time the Respondent was to meet certain conditions. The Final Order in DPR Case Nos. 106761 and 107454 imposed three requirements on Respondent. First, Respondent was to pay an administrative fine of $2500.00 no later than thirty (30) days after the Final Order was filed. Second, during the first six months of probation, the Respondent was to provide verification of successful completion of a continuing education course in the Minimum Technical Standards. Third, within the first six months of probation, Respondent was to complete and return to the Board, the Board's study guide. It is undisputed that Respondent, although not present at the informal hearing, received a copy of the Final Order in these cases. The Final Order in DPR Case Nos. 106764 and 107454 provided that within thirty days following the verification of successful completion of the Minimum Technical Standards seminar, the Board's consultant would randomly select six surveys performed by the licensee for submission and review by the Board. If the surveys submitted by the consultant to the Board were found to substantially comply with the Minimum Technical Standards, the Respondent would be released from probation at that time. If the surveys were found by the Board not to comply with the standards, the Board had the option of either lifting the stay and imposing the suspension, or directing the Board consultant to randomly select an additional six (6) surveys performed by the licensee for review by the Board. If the second set of surveys were found not to comply with standards, the stay of suspension would be lifted and the license would be suspended for the remainder of the twenty-four month period. Contrary to the Administrative Complaint and the Disciplinary Worksheet for Case Nos. 106764 and 107454, the Final Order in these cases did not require Respondent to submit six (6) surveys with field notes and record plats to the Board by August 6, 1990. Therefore, Respondent's failure in this regard does not constitute a violation of the Final Order in Case Nos 106764 and 107454. Notwithstanding the error in the Administrative Complaint and Disciplinary Worksheet for Case Nos. 106764 and 107454, it still remains that the actual terms of the Final Order in Case Nos. 106764 and 107454 were completely disregarded by the Respondent. According to the evidence presented, Respondent failed to pay the $2,500 administrative fine which was due on March 8, 1990 as required by the Final Order. Respondent did not attend a Minimum Technical Standards seminar by August 6, 1990. Also, Respondent did not complete and submit to the Board the study guide which was due August 6, 1990. With regard to payment of the administrative fine, Paragraph 11 of the Stipulation states the following: Any fine imposed shall be paid no later than 30 days after the date of the filing of the Board's Final Order arising out of the informal hearing. If the Board shall impose a fine to assure payment of same, the following clause shall be in effect: the Respondent's licensure shall be suspended effective as of the date of the filing of the Board's Final Order imposing the fine, provided however, the effect of the suspension is stayed for 30 days thereafter; if Respondent shall cause payment of said fine to be actually received by the Board within said 30 days, then the suspension imposed shall be automatically lifted upon payment of upon receipt of payment of said fine.... As a result of Respondent's failure to attend a Minimum Technical Standard's seminar, the condition precedent to the consultant randomly selecting six surveys performed by the licensee was not met. Therefore, the Board consultant was unable to request or select surveys performed by the Respondent for submission to the Board for evaluation and review. Violations of the provisions or conditions of probation of the Final Order are expressly addressed in the Stipulation which was incorporated into the Final Order. Paragraph 14 of the Stipulation provides in relevant part the following: Failure of the licensee to comply with any of the terms of probation may result in a lifting of the stay and imposition of the suspension at the Board's discretion. . . On May 14, 1990, Respondent was put on notice by the Department Professional Regulation that he was in violation of the terms of the Final Order in DPR Case Nos. 106764 and 107454 for failure to pay the $2500 administrative fine. By letter dated May 25, 1990, Respondent was notified that his license was suspended as of May 22, 1990, for failure to comply with terms of the Final Order in DPR Case Nos. 10674 and 107454, in that he failed to pay the fine of two thousand five hundred dollars ($2,500.00). The letter, received by Respondent on May 30, 1990, indicated that the Board voted to lift the stay and Respondent's licensed was suspended until further action of the Board. This action by the Board was consistent with the provisions of the Final Order. Although the Final Order in Case Nos. 106764 and 107454 provided that "compliance of the licensee after the suspension might result in another stay and continued probation," Respondent never complied with any of the conditions set forth in the Final Order. Therefore the suspension was never stayed and remained in effect. Respondent notified the Board that he filed for bankruptcy and was told that the administrative fine of $2,500.00 may be dischargeable. However, the evidence indicates that Respondent's bankruptcy petition was not filed until 1991, while the administrative fine was due in March, 1990, the preceding year. Thus, Respondent was not entitled to any relief from this obligation at the time it was initially due. Even if the administrative fine of $2,500.00 was discharged by the May 21, 1991 Order of the Bankruptcy Court, which released Respondent from all dischargeable debts, the other terms of the Final Order in Case Nos. 106764 and 107454, are not affected by the Order of the Bankruptcy Court. In his testimony, Respondent admitted that although the administrative fine might be dischargeable in bankruptcy, the other requirements imposed by the Final Order in DPR Case Nos. 10674 and 107454 were not dischargeable on this basis. Respondent violated the provisions of the Final Order in DPR Case No. 59729 and the Final Order in DPR Case Nos. 106764 and 107454.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner revoke Respondent's license to practice land surveying. RECOMMENDED this 2nd day of October, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-1271 & 95-1272 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the Petitioner's proposed findings of fact: Paragraphs 1-2. Accepted and incorporated. Paragraph 3. Accepted, except evidence does not support subsection (b). Paragraphs 4-19. Accepted and incorporated to the extent not subordinate and unnecessary Paragraph 20. Accepted, except evidence does not support that Discipline Action Worksheet accurately reflects a provision of the Final Order. Paragraphs 21-26. Accepted, and incorporated to the extent not subordinate and unnecessary. Paragraph 27. Accepted, and incorporated, except evidence does not support that Respondent was told that administrative fines were dischargeable. Paragraph 28. Accepted and incorporated. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mr. John D. Holt 925 Azure Avenue West Palm Beach, Florida 33414 Angel Gonzalez Executive Director Board of Professional Land Surveyors 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
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.
