The Issue The issue in this case is whether the Respondent, Stephen Phillips Kilmon, committed the violations alleged in an Amended Administrative Complaint issued by the Petitioner Department of Business and Professional Regulation on January 25, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Board of Professional Surveyors and Mappers (hereinafter referred to as the "Department"), is the state agency charged in Chapter 472, Florida Statutes, with the duty, among other things, of regulating the practice of land surveying and mapping. At the times material to this proceeding, Stephen Phillips Kilmon, is and was a licensed Florida Surveyor and Mapper, having been issued license number LS 5439. At the times material to this proceeding, Mr. Kilmon was doing business as ViaLink, Inc., a licensed surveyor business, having been issued license number LB 6648. Mr. Kilmon's address is 2010 Northeast 122 Road, North Miami, Florida 33181. Mr. Kilmon obtained his license in January 1995. Before obtaining his license and beginning in 1980, he obtained experience in surveying, mapping, civil engineering, computer aided design drafting, and information management systems, which ultimately led to his licensure. The Fiddler's Creek Project. 951 Land Holdings, Ltd. (hereinafter referred to as "951"), through Holes Montes & Associates (hereinafter referred to as "Holes Montes"), was engaged in the development of a housing/golf course project in Naples, Florida (hereinafter referred to as the "Fiddler's Creek Project"). A portion of the Fiddler's Creek Project was being constructed by Atlantic Civil, Inc. (hereinafter referred to as "ACI"). Among other things, ACI was engaged in the excavation of several lakes and the creation of an upland golf course in a wetlands' area. ACI was, however, having difficulty completing the excavation of the lakes due to apparent back-fill which was preventing ACI from achieving the contracted depth of -18 feet National Geiodetic Vertical Datum 1929. Mr. Kilmon described the problem as follows: . . . each lake became mysteriously back- filled to a depth of -14 feet, National Geiodetic Vertical Datum 1929 (NGVD29) virtually overnight not allowing ACI to achieve reaching their contract depth of -18 NGVD29 for the bottom of any lake. The analogy is like digging a small hole in the sand a the beach near the water only to watch it fill with more sand and water each time you scoop out the material. The result of ACI's futile efforts to achieve and maintain -18 NGVD29 for any lake caused an over-excavation in cubic yards per lake, long before ACI could finish cutting out the lake pattern or design template. ACI filled its construction site limits to more than 110% of the cubic yards HMA [Holes Montes & Associates] designed for it, yet only completed 75% of the lakes final design template. ACI sought reasonable contract relief from 951 in achieving the unattainable contract required -18 NGVD29 lake bottom depth due to the natural back- fill of liquid sand conditions below the initial 4~6 feet of cap rock, and 951 refused. ACI's position then became that 951 was taking advantage of its contractor to force excessive extraction of "free" fill material for 951 at the unfair expense of ACI. . . . ACI then made the attempt hiring ViaLink to identify the approximate best known volume of excavated "fill" material placed onsite from the lakes, and to be paid according to material type cubic yard unit cost, rather than by the contract method of lake dredge percent complete. Petitioner's Exhibit 6. Involvement of ViaLink, Inc. and Mr. Kilmon in the Fiddler's Creek Project. As a result of the foregoing described problem, ACI hired ViaLink, Inc., and Mr. Kilmon to provide services described by Mr. Kilmon, in pertinent part, as follows: My initial role as Surveyor/Mapper for ACI was to monitor the mysterious back-filing of sandy material during the dredging process after reaching -18 NGVD29. I performed numerous measurements immediately following the backhoe digging, and recorded depths reaching the -18 NGVD29. . . . My second involvement came several months later. At this time I was requested by ACI to perform a survey which captures a topographic surface (less the hydrographic surfaces of the lakes, surveyed by HMA) in the form of a digital terrain model (DTM) of the contracted construction limits out to, and including the bordering lands matching to existing conditions beyond the ACI construction site limit for that moment in time. . . . My third and next involvement on this project site came when ACI informed me that their informal negotiations with 951 felt [sic] through at trying to convey the understanding of the amount of material already placed onsite exceeding the contracted and design intended volume for the ACI construction site limits. I was asked by ACI to contact HMA directly to compare my "ViaLink" DTM topographic surface . . . to the HMA DTM surfaces maintained on their computer systems . . . . From this point on legal counsel for both sides took over the control for resolution between ACI vs. 951, which sent everyone into court. . . . Petitioner's Exhibit 6. Ultimately, the parties turned to the courts to resolve their dispute. During this litigation process, Mr. Kilmon prepared what he titled a "Specific Purpose Survey Surveyor's Report" (hereinafter referred to as the "Surveyor's Report"). Petitioner's Exhibit 4. The Surveyor's Report was prepared in response to a subpoena from counsel for 951 and had to be prepared quickly: MR. KILMON: Because it was an evolutionary process -- ever since we were first hired to go and work on the site, the Judge said, "Wrap it up." That was exactly what he said, "Wrap it up," and he said "Wrap it up" because the other counsel on the other side was seeing that this evolution here of survey work was actually producing something, that I was actually able to recreate this [Digital Terrain Model] that they were hiding. I was actually able to come up with it again and actually produce a number. They cut it, and they go the Judge to say, "Okay, let's produce what he has, let's see what he has" My client said, "Please, you've got to say something. They've drawn a line in the sand and we're not allowed to cross it anymore. We have to come up with something." . . . . MR. KILMON: That was the first piece I gave them because of that subpoena, and that was the May 30 disk. . . . And then I ended up submitting the final version of it that I ran out of time with, and well, here you go, it's the last version. So I complied is all I did. I complied. . . . Transcript, Vol. II, Page 215, Lines 15-25, Page 216, Lines 1-4, and Page 217, Lines 6-12. The Surveyor's Report. The Surveyor's Report, dated July 10, 2002, and addressed to the president and CEO of ACI, states that it involves "Professional Forensic Surveying & Mapping Services; Earthwork Analysis" for the Fiddler's Creek Project. The Surveyor's Report contains the following "Mission Statement": Develop a stratum within a Digital Terrain Model (DTM) having two (2) surfaces for comparison; (a) compile an existing conditions surface (Surface 2[SRF2]) observed and recorded by Hole, Montes & Associates, Inc. (HMA) and their sub- consultants at the time Atlantic Civil, Inc. (ACI) began construction, and (b) compile a final surface (Surface 3 [Srf3]) observed hydrographically by HMA and topographically by ViaLink, Inc (ViaLink) at the time the ACI was terminated, less any areas even partially filled by others, though completed by ACI. Perform a calculation within the DTM which determines the amount of "FILL" material placed on the Fiddler's Creek, Phase 2A, Stage l (the "Site") by Atlantic Civil, Inc. between Srf2 and Srf 3. Methods of volume calculations include "Average End Area" by contract, and "Prismoidal" in support as a backup check calculation in verification. The Surveyor's Report also lists the data relied upon by Mr. Kilmon, many of the rules that govern the practice of surveyors and mappers, and information concerning the calculation of the amount of fill removed by ACI in its efforts to excavate the lakes made by Mr. Kilmon. The Surveyor's Report also included a compact disc (hereinafter referred to as the "CD"), which contained "AutoCAD drawing files depicting a Digital Terrain Model ('DTM')." The Digital Terrain Model (hereinafter referred to as the "DTM"), a digital representation of data, is, according to the Department, a "map." Petitioner's Exhibit 5. The CD contained "AutoCAD drawing files depicting a Digital Terrain Model (DTM)." A printed depiction of the Digital Terrain Model (hereinafter referred to as the "DTM"), contained on the CD was printed and admitted in evidence. It was never Mr. Kilmon's intention to prepare a "quantity survey" as those terms are defined in Florida Administrative Code Rule 61G17-6.002(8)(h), or provide a "map" with his report. As to the type of report he intended to issue, Mr. Kilmon testified, in part, as follows: I was left with a partial, if you will, quantity survey, and it's uncertified data, and I didn't want anyone to take off with an assumption, by just reading the title of my report, that there was some sort of real quantity surveying going on here. That’s why you have a specific purpose survey is when you have things that are really out of whack from what's normal for a survey type, slowing everything down. Making people take a look at the title, specific purpose survey, was my judgment call. I wanted to make everybody, including the public, know that right off the top of the bat, you're not going to see this as a quantity. You're going to have to break it down and understand what the data is that made the number. Transcript, Vol. II, Page 220, Lines 16-25, and Page 221, Lines 1-5. Mr. Kilmon recognized that to issuing a quantity survey or map was not appropriate for two reasons: First, some of the data he had available to him was unverified data from Holes Montes; and Second, he did not have all of the data necessary to complete an accurate quantity survey. As Mr. Kilmon further explained his intention during his testimony at hearing, agreeing "in part" with a question as to whether he had concluded that a quantity survey was not appropriate because of inappropriate data he had: . . . . The other part is that the end- all answer of what would be the quantity on that surface, because we didn't have enough data, not just uncertified, but we didn't have enough data to tell where every bit of fill was on that surface. There is no way to know that the end-all number would be. It's simply, as I put in my certification, the best-known number, and the reason is because we're just trying to determine whether or not it's in the 700, 600, a thousand cubit yard range, or are we talking about the 400,000 cubic yard range that the contractor got paid for. Is it worth another look at reevaluating with better cooperation from the other surveyor to get certified data and maybe look at their actual DTM, you know, to get to the bottom of this? Transcript, Vol. II, Page 218, Lines 22-25 and Page 219, Lines 1-12. In addition to styling his report as a "Specific Purpose Survey Surveyor's Report," rather than a quantity survey, Mr. Kilmon warned the reader of the uncertainty of some of the data he had relied upon. On page 14 of the Surveyor's Report, under the heading "Reviewed Survey Data" he identifies the following "Surveyor's and Mappers providing surveying data for review" (see also, page 1): Hole Montes & Associates, Inc. (HMA), . . .as the surveying and mapping consultant or agent to the Fiddler's Creek Developer (FCD), including aerial photogrammetry sub- consultants employed, though their identities are not disclosed. ViaLink, Inc. (ViaLink) . . . as the surveyor and mapping consultant to ACI. On January 24, 2001 the undersigned Surveyor and Mapper formally made a request of HMA and the FCD through ACI for a copy of specific survey instruments, in digital and hardcopy formats, to expedite the review of the Fiddler's Creek Ste, as identified above. To date no signed and sealed, or certified field notes, survey maps, sketches, or surveyor's reports, of any kind have been provided for evaluation. Further, HMA and the FCD insist all survey related information available from there [sic]file has been proffered for review. While originally requested of HMA and the FCD certain forms of helpful raw and finished survey product(s) developed by HMA (and/or it [sic] sub-consultants) and the FCD have if [sic] fact been withheld from this review. Examples being lawfully prepared certified plats of public record, their respective certified boundary surveys, and control surveys signed and sealed. Other examples of withheld survey information include all controlled aerial photogrammetry products observed at the time ACI was terminated. Certified survey data contained in the attached DTM to date is limited to that portion of information provided by this firm, ViaLink, Inc. All other survey data provided for this DTM review is NOT certified, and does not meet the Minimum Technical Standards (MTS) of Chapter 61G17-6 of the Florida Administrative Code as required by Florida Law. The lack of certification does not invalidate the accuracy of the survey data, just its backing. (Emphasis added). The Surveyor's Report, page 14, goes on to advise that there are "three(3) surfaces" contained within the CD's DTM and warns the following with regard to "Surface No. 1": "Surface No. 1 (Srf1) being simply the "Contract Surface" reportedly created by a mystery aerial photogrammetrist developing planimetrics and derived three-dimensional spot elevations as a sub-consultant to HMA in and about a Fiddler's Creek pre- construction Site. " Beginning at the bottom of page 14 and continuing on to page 15, the Surveyor's Report describes where more specific data concerning all three surfaces was obtained, the accuracy or lack thereof of the data, and whether the data is certified. Much of the data listed is acknowledged to be of "unknown" accuracy and to lack certification. Finally, on pages 25 and 26, under the heading "Surveyor's & Mapper Notes," Mr. Kilmon noted the following concerning the inadequacy of data used in the report: 4.) This SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT is the direct result of geometric calculation, in large part due to the availability of qualified data provided by others, but without any certification of the responsible surveyor and mapper. . . . . 8.) Under Florida Law, this firm, ViaLink, Inc., and the undersigned Surveyor & Mapper can not certify survey information provided by others when the survey is not conducted under the direct supervision of the undersigned Surveyor & Mapper. Therefore this firm, ViaLink, Inc., and the undersigned Surveyor & Mapper will not assuming [sic] any liability; for information provided by others used in this SPECIFIC PURPOSE SURVEY for Earthwork Analysis. Mr. Kilmon goes on to make the following ultimate findings in the Surveyor's Report: 10.) It is this undersigned Surveyor & Mapper's certain opinion that the earthwork calculation which determined a FILL quantity of 688,080 cubic yards of material reflects an extremely conservative volume of material placed onsite by ACI for the area known as Phase 2A, Stage 1. Additionally, extreme measures have been taken to exclude any and all areas of Srf3 were even in part FILL was placed by others. These pocketed areas of partial FILL formerly reflected within SRF3 have been extensively sought out and totally removed by ACI personnel having direct personal knowledge of the site prior to any construction by ACI. Aerial photography taken by Aerophoto, Inc., on 07/15/1999 independently supports these efforts depicting the same identified regions of partial FILL. The result of this additional effort to meet and/or exceed the Mission Statement of this Surveyor's Report now actually benefits the FCD. Omitted partially filled regions by ACI and others are now not claimed by ACI in any way, but are instead 100% credited to the FCD. 11.) It is the undersigned Surveyor & Mapper's certain opinion that HMA conducted its surveying practices with the positive intension to reflect the actual conditions of Fiddler's Creek, Phase 2A, State 1 topographic and hydrographic surfaces, as no evidence was found to the contrary. 12.) The Average End Area computed total FILL quantity of 688,080 represents FILL to form higher uplands regions and placed in lakes, and may contain a variety of earth materials from rock to sand. On the last page of the Surveyor's Report is the following note: Not Valid without the signature and the original raised seal of a Florida licensed surveyor and mapper. Further this Surveyor's Report is not valid without the original CD-ROM displaying the original signature of this same undersigned Surveyor & Mapper. As noted, supra, a CD was provided by Mr. Kilmon with the Surveyor's Report. The DTM contains a large "N" with an arrow at the bottom. Under this symbol is the following identifying information: Specific Purpose Survey Fiddler's Creek, Phase 2A, Stage 1 (NAD 83/99 FL E. 901 & NGVD 29) Mr. Kilmon did not intend for the DTM to be a "map." Toward this end, he notes the following in the Surveyor's Report on page 26 under the heading "Surveyor's & Mapper Notes": "This is NOT a BOUNDARY SURVEY." Consistent with his intent to only prepare a "report" and not a "report and map", Mr. Kilmon consistently refers to the Surveyor's Report throughout the report (except for what appears to be typographical error), as a "Specific Purpose Survey & Map Surveyor's Report." He does not refer to the report as a "Specific Purpose Survey and Map." To the extent that it is considered a "map," the DTM does not contain the information required by Florida Administrative Code Rule 61G17-6.003 alleged to be missing in the Amended Administrative Complaint. Mr. Kilmon signed and sealed the Surveyor's Report under the following "Surveyor's Certification:" THIS IS TO CERTIFY that this SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT is the result of compiled topographic and hydrographic data in part provided by others for the limited purpose of calculating best known "FILL" quantities as mentioned in the Mission Statement herein. I FURTHER CERTIFY that this SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT meets or exceeds the evaluation, analysis, and result finding accuracies established by the Minimum Technical Standards as set forth by the Florida Board of Surveyors and Mappers in Chapter 61G17-6.0052, Florida Administrative Code, pursuant to Chapter 472.027 of the Florida Statutes. Summary Findings. The ultimate issues of fact in this case are whether the Surveyor's Report constitutes a "quantity survey" and whether the DTM is a "Map." Credible expert witnesses for the Department and Mr. Kilmon gave inconsistent testimony on these issues. Ultimately, as to the first question, whether the Surveyor's Report constitutes a "quantity survey," the testimony of the Department's expert witnesses was more convincing. It is concluded that the Surveyor's Report, regardless of what Mr. Kilmon named it, is a quantity survey, which is defined in Florida Administrative Code Rule 61G17-6.002(8)(h) and (j), as "a survey to obtain measurements of quantity." The Surveyor's Report comes within this definition: First, the Surveyor's Report is a "survey", which is defined in Florida Administrative Code Rule 61G17-6.003(8) as "the orderly process of determining facts of size, shape, identity, geodetic location, or legal location by viewing and applying direct measurement of features on or near the earth's surface using field or image methods. . . ."; and Second, the survey, by admission of Mr. Kilmon at hearing and on the face of the Surveyor's Report, was intended to obtain and report a measurement of quantity even if only a rough estimate thereof. While Mr. Kilmon did qualify his calculations and openly disclosed the shortcomings of the data relied upon, the bottom line is Mr. Kilmon concluded that "[i]t is this undersigned Surveyor & Mapper's certain opinion that the earthwork calculation which determined a FILL quantity of 688,080 cubic yards of material reflects an extremely conservative volume of material placed onsite by ACI for the area known as Phase 2A, Stage 1." The second issue, as to the proper characterization of the DTM, is more difficult to resolve. The Department's experts unequivocally characterized the DTM as a map. Mr. Kilmon's expert testimony emphasized the issue of whether a map was required rather than whether the DTM was a map. While it seems that the DTM is nothing more than a depiction of data during an intermediate step in the process of manipulating that data, it would not be reasonable to reject the testimony of the Department's experts. It is, therefore, found that the DTM is a map. The Department's witnesses did not, however, prove clearly and convincingly that the DTM is the type of map for which the information specified in Florida Administrative Code Rule 61G17-6.003 is required. Mr. Kilmon's expert, on the other hand, testified convincingly that the DTM is not a map to which the standards and requirements of Florida Administrative Code Rule 61G17-6.003(3) apply.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Board enter a final order finding that Stephen Phillips Kilmon committed the violation described in this Recommended Order, issuing a written reprimand, and requiring that he pay a fine of $500.00 within 30 days of the entry of the final order. DONE AND ENTERED this 19th day of July, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 19th day of July, 2006. COPIES FURNISHED: Eric R. Hurst Charles F. Tunnicliff Assistants General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Phillips Kilmon 2010 Northeast 122 Road North Miami, Florida 33181 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Morrison, Executive Director Board of Professional Land Surveyors And Mappers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Background The Parties Respondent, City of Hialeah (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive plans and amendments thereto. Petitioners, Edmond J. Gong and Dana L. Clay (petitioners), reside in Coconut Grove, Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here. The Nature of the Dispute In 1991 and 1992, the City adopted three sets of land use amendments to its comprehensive plan known as amendments 91-1, 91-2 and 92-1. Each set of amendments generated objections by the DCA, and the matters were later sent to the Division of Administrative Hearings and were assigned Case Nos. 91-6340GM, 92-3113GM and 92-7517GM, respectively. Petitioners did not participate in any of these proceedings. To resolve the objections raised by the DCA, the City and DCA negotiated a stipulated settlement agreement in December 1993, which was executed by the City on January 28, 1994. Pursuant to that agreement, on April 21, 1994, the City adopted a remedial amendment (Ordinance 94-27) known as amendment 94R-1. After reviewing the amendment, on June 2, 1994, the DCA issued a cumulative notice of intent to find such amendment in compliance. On June 7, 1994, the South Florida Regional Planning Council also found the amendment to be in compliance. Finally, on July 11, 1994, the DCA's motion to dismiss Case Nos. 91-6340GM, 92-3113GM and 92-7517GM was granted. Petitioners, who participated in the local hearings concerning the adoption of amendment 94R-1, timely filed their petition for administrative hearing on June 23, 1994, challenging the propriety of that amendment for various reasons. The petition was assigned Case No. 94-3506GM. Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment. Procedurally, petitioners argue that the local government did not comply with all statutory requirements in noticing its proposed approval of the settlement stipulation and its later intent to adopt an ordinance. As to the DCA, petitioners argue that the state agency did not comply with the law in publishing its cumulative notice of intent on June 2, 1994, and that the notice contained erroneous rule citations and lacked a geographical map. Substantively, petitioners complain that before final approval of amendment 94R- 1 was given, the local government and DCA did not consider the enactment of Chapter 94-338, Laws of Florida, which created a multijurisdictional tourism, sports and entertainment special district known as the Blockbuster Park Special District, and they did not consider the traffic impacts of a recently opened connector to Interstate 75 and an interchange within the City that connects traffic from the connector to the Florida Turnpike. Finally, they contend that the amendment improperly redesignated more than ten acres of land from residential to commercial land use. Amendments 91-1, 91-2 and 92-1 involve ten amendments to the plan, all originally found not to be in compliance by the DCA. To cure three of those deficiencies, the City rescinded three ordinances leaving seven plan amendments to be remediated. Petitioners challenge the validity of these seven amendments but none change the use on their property. In reality, though, petitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance. Were the Notice Requirements Met? After the DCA and City reached an agreement in principle to resolve the DCA's objections to the plan amendments, a settlement agreement was prepared for execution by the City's mayor and DCA Secretary. Before the mayor could sign the agreement, however, the City Council's approval and authorization were required. Such approval and authorization to sign the agreement came in the form of a resolution adopted at a public hearing held on January 25, 1994. The agreement was later signed by the mayor and DCA Secretary on January 28 and March 3, 1994, respectively. The City had originally intended to consider the item at its January 11, 1994 meeting. Timely publication of notice was given for that meeting on December 27, 1993, in the regular edition of The Miami Herald, a newspaper of general paid circulation published daily in Dade County. At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994. Accordingly, it republished a notice of its January 25 meeting in the Zone 4 Northwest Neighbors section of the Herald. The Zone 4 Northwest Neighbors section is an insert in the Herald each Thursday and Sunday and contains news pertaining to the northwest portion of Dade County, including the City. Because all copies of the Herald delivered and sold in northwest Dade County contain this particular Neighbors insert, the City complied with the requirement that the advertisement be published in a newspaper of general paid circulation within the jurisdiction of the City. Since petitioners reside and work outside of northwest Dade County, they say they did not receive the Neighbors insert in their paper and thus they were not aware of the January 25 hearing. There is no requirement, however, that the advertisement be published in other parts of Dade County. It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing. The four-inch notice published on page 15 of the January 16, 1994 edition of the Neighbors section reads as follows: At its regular meeting of January 25, 1994, the Hialeah City Council will consider the following Resolution in addition to other business. Members of the public are invited to attend; the meeting begins at 7:00 p.m. at Hialeah City Hall, 501 Palm Avenue, Hialeah, Florida. RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, AUTHORIZING THE MAYOR TO ENTER A STIPULATED SETTLEMENT AGREEMENT IN CASE NOS. 91-6340GM, 92-3113GM AND 92-7517GM, ENTITLED "DEPARTMENT OF COMMUNITY AFFAIRS VS. CITY OF HIALEAH" NOW CONSOLIDATED BEFORE THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FOR TRANSMITTAL TO THE FLORIDA DEPART- MENT OF COMMUNITY AFFAIRS. Applicable state law (s. 163.3184(16), F.S.) called for the notice to be published at least ten days prior to the hearing. In addition, general provision 3 of the settlement agreement provided in part as follows: This agreement has been approved by the governing body at a public hearing advertised in an adver- tisement published at least 10 but not more than 15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187. Assuming the day of the hearing is not counted in computing the ten days, the City would have had to publish the notice by Saturday, January 15, 1994, in order to meet the ten-day requirement. Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement. The settlement agreement called for the City to adopt certain remedial amendments by ordinance. These amendments are contained in Ordinance No. 94-27. Although state law (s. 163.3184(16)(d), F. S.) requires that the City hold only one advertised public hearing on a compliance amendment at the adoption stage, in accordance with the City Charter, two hearings were scheduled for that purpose on March 22 and April 12, 1994. A single one-quarter page advertisement in the regular edition of the Herald was published on March 17, 1994, or five days before the first hearing. The law (s. 163.3184(15)(b)2., F. S.) also requires that the hearing be "approximately 5 days after the day that the second (i. e., adoption stage) advertisement is published." The advertisement referred to both hearing dates and noted that their purpose was "to receive comments from interested parties on the Stipulated Settlement Agreement between the City of Hialeah and the Florida Department of Community Affairs related to the 1990 and 1991 Cycles I and II plan amendments to Hialeah's Comprehensive Plan." The advertisement also contained a list of the ten plan amendments and a map showing the portion of the City affected by each of those amendments. Although petitioners contended that the map was illegible in some respects, they nonetheless read the notice in the newspaper and attended both hearings to voice their objections to the ordinance. Notwithstanding petitioners' objections, on April 12, 1994, the City adopted the ordinance. Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error. After reviewing the ordinance, on June 2, 1994, the DCA published in the Neighbors section of the Herald a cumulative notice of intent to find the plan amendments and remedial plan amendment in compliance. The advertisement was one-quarter page in size, identified the plan amendments in issue, advised readers that the amendments were in compliance, gave a location where such amendments and comments could be reviewed, and offered a point of entry to affected persons. Therefore, its content was sufficient to inform the public of the action being taken. The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 22I-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010. Even so, petitioners were unable to show how they were prejudiced by these minor errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment. The DCA policy is to publish its notice of intent to find an amendment in compliance in the same local newspaper as the local government uses for its publication. The DCA also pointed out that by advertising in the Neighbors section as opposed to the regular edition of the Herald, it saved several thousand dollars. Therefore, the DCA used the Neighbors section of the Herald. At the same time, the DCA has never included in its advertisement a map showing the location of the land use changes being proposed. This is because the local government advertisements have already included a map, and the DCA notice is simply for the purpose of advising the public which ordinances are in or out of compliance. In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance. The plan amendment Since 1986, petitioners have owned two parcels of undeveloped property in the southern one-half and northwestern one-quarter of Tract 24 of Section 28, which is located in the western part of the City. The property consists of approximately six acres located at the northeastern intersection of West 76th Street and the Hialeah-Hialeah Gardens Boulevard. The property has been designated on the future land use map as low density (single-family) residential, which allows up to twelve units per acre. Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property. Instead, they simply argue that the plan amendment is not in compliance because the City did not consider the impacts of "drastically changed circumstances" before adopting the remedial ordinance, and the City improperly reclassified a small tract of land. These claims will be considered below. Effective June 3, 1994, Chapter 94-338, Laws of Florida, became law. That law created a multijurisdictional tourism, sports and entertainment special district more commonly known as Blockbuster Park. That legislation, however, is not relevant to this proceeding for several reasons. First, there is no mechanism to consider multijurisdictional impacts in the local planning process. Second, the special act did not become law until after the amendment process here had been completed. Since the City was only required to consider the best available data present at the time the amendment was being reviewed and adopted, consideration of the special law was neither necessary or appropriate. Third, the act itself does not authorize a development. If and when a development order is approved, the City can update its plan to take into account any impacts from the project. As to the contention that the City and DCA failed to take into account the six-lane connector road completed on December 31, 1993, or two years after the plan amendments were adopted, the impact of the connector road is identified and discussed on pages 21 and 23C of the future land use element contained in the remedial amendments. At hearing, it was further explained that the connector road is a limited access regional road under the control of Dade County, and not the City. This means that there is no access to the connector from properties which front on the road, and local access will be limited to three major road intersections. No land use changes along the road have been proposed, and the City has adequately addressed the circulation map requirements in the plan and how the internal circulation routes would be compatible with the major connectors. This being so, it is found that the City and DCA gave adequate planning consideration to the connector. Finally, petitioners contended that certain land was improperly redesignated from single-family residential to multi-family and commercial use. They complain that this is inappropriate since the land is close to a school and does not lie near a major intersection. The evidence shows, however, that such redesignation was appropriate since the land is located at an intersection and lies just across the street from an existing five-acre commercial tract. Moreover, the multi-family part of the tract will serve as a buffer between the commercial use at the intersection and the existing single-family use to the south. Then, too, the proximity of a nearby school to the west will serve to reduce trip time for persons shopping in the area while dropping off or picking up children from the school. Finally, some types of commercial use in residential neighborhoods can serve valid planning purposes, and the City has already established a pattern of having some schools located near commercially designated property. The redesignation is found to be reasonable and based on appropriate planning considerations. Although no proof was submitted by petitioners regarding any other parts of the plan amendment, respondents demonstrated that all remaining parts are supported by adequate data and analysis and are in compliance. Accordingly, petitioners have failed to prove to the exclusion of fair debate that remedial amendment 94R-1 is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of Hialeah comprehensive plan amendment to be in compliance. DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3506GM Petitioners: 1-2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-20. Partially accepted in findings of fact 5-8. 21-24. Partially accepted in findings of fact 9. Partially accepted in findings of fact 10 and 11. Partially accepted in finding of fact 4. 27-29. Covered in preliminary statement. Rejected as irrelevant. Rejected as unnecessary. 32-35. Rejected as irrelevant. 36-38. Partially accepted in finding of fact 6. 39-41. Partially accepted in finding of fact 11. 42. Rejected as unnecessary. Respondent DCA: 1-12. Covered in preliminary statement. 13. Partially accepted in finding of fact 1. 14. Partially accepted in findings of fact 2 and 13. 15. Partially accepted in finding of fact 1. 16-19. Partially accepted in findings of fact 6-8. 20-22. Partially accepted in finding of 9. 23-25. Partially accepted in findings of fact 10 and 11. 26. Partially accepted in finding of fact 6. 27. Partially accepted in finding of fact 11. 28. Partially accepted in finding of fact 6. 29-30. Partially accepted in finding of fact 10. 31-55. Partially accepted in findings of fact 13-17. Respondent City: Because the City's proposed recommended order was not timely filed, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding of fact. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. COPIES FURNISHED: Mr. Edmond J. Gong Ms. Dana L. Clay 6161 Blue Lagoon Drive, Suite 370 Miami, FL 33126 Terrell K. Arline, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 William M. Grodnick, Esquire 501 Palm Avenue, 4th Floor Hialeah, FL 33010 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
Findings Of Fact At times relevant Respondent has held license number LS0001999 issued by the Florida Board of Land Surveyors and Mappers. His license is as a land surveyor and mapper. Respondent held an active license from December 31, 1973 through March 9, 1995. On the latter date Respondent's license became delinquent "Due to Non- Renewal." The license remained in a delinquent status at the time of hearing. In this case the Florida Board of Professional Surveyors and Mappers under authority set forth in Chapter 472, Florida Statutes, seeks to impose administrative discipline against Respondent. On April 24, 1991 Respondent provided John W. Smith a signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. In November 19, 1991 Respondent provided John W. Smith with a revised signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. Robert Waers is licensed as a land surveyor in Florida. As such he is an expert in land surveying. He reviewed the subject boundary survey drawings prepared by Respondent. The purpose for that review was to identify whether Respondent had complied with minimum technical standards for land surveying when preparing the survey drawings. As Mr. Waers established, a boundary survey is a procedure by which the surveyor identifies the property lines of a parcel of property as described by a legal description. The process also involves the identification of rights associated with that parcel as it exists on the ground with relation to the legal description. In Mr. Wares' expert opinion as a land surveyor Respondent failed to meet minimal standards or the standard of care within the surveying community when preparing the survey drawings at issue. Basically Mr. Wares established that the survey drawings were not complete, defensible, adequate and accurate. As Mr. Wares established, the survey drawings in depicting the outer boundaries on the parcel would lead one to believe that they coincide with the legal description for the parcel. This circumstance would purport to establish that the dimensions on the ground are precisely the same as those described in the legal description. However, the legal description does not form a closed geometric figure. When the geometry of the legal description is computed it does not return to the point of beginning. It misses that point by nine tenths of a foot. Consequently, it would be impossible to show the same measurements on the ground on the survey drawing as would be found in the legal description and accurately portray the situation on the ground. There would be differences between the survey drawing on the ground as physically measured and what is written in the legal description. Respondent has failed to note those differences through a comparison between measurements on the ground and those measurements in the legal description and the recordation of the difference. To properly perform the comparison Respondent would need to reflect the distances measured on the ground and the record distance found with both sets of measurements noted on the survey drawings, which he did not do. In both surveys in question the field data does not support the survey drawings. They are incomplete. They are so disorganized as to make many of the matters contained in the field notes indiscernible. For that reason Mr. Waers, as an expert, was unable to recreate the information in the field data as a means to determine the correct position of the boundaries in the survey drawing. Nor can the field data be relied upon as a means to compute a closed traverse of the parcel, referring to geometry relative to a closed traverse by use of the field notes. In the April, 1991 survey Respondent incorrectly located a residence. The survey drawings did not adequately nor accurately depict the nature or geometry of the fixed improvement. While the dimensions of the fixed improvement are sufficiently detailed, the position of the improvement related to the boundary line for the property is not acceptable in the April, 1991 survey. The April, 1991 survey drawings indicate dimensions of 13.8 feet and 15.7 feet at the northerly and southerly ends of the residence, whereas the November, 1991 survey drawings describes those dimensions as 10.65 and 9.8 feet respectively. As Mr. Waers described a monument is a marker on the ground at boundary corners for the property or along boundary lines. Its purpose is to assist in better establishing the location of a boundary line. The monuments are physical objects. In the event that the monument location and the boundary lines do not coincide, the expectation is that the surveyor will describe that conflict in the survey drawings by comparison. In this case, conflicts existed between boundary lines and monuments and they were not shown on the April and November, 1991 survey drawings. In both the April, 1991 and November, 1991 survey drawings Respondent included legends or notes describing abbreviations and their complete meaning such as R/W for right of way and CH for cord. However, in those drawings, Respondent used the initials RLS, CONC and FR, terms not commonly known by the public, without describing the full meaning of those initials in a legend or note. All matters which have been discussed were observed by Mr. Waers and in his opinion, which is accepted, constitute the failure to comply with minimal technical standards for surveying when examining the survey drawings from April, 1991 and November, 1991 prepared by Respondent. Furthermore, Mr. Wares's opinion that Respondent failed to use due care in performing the surveys is accepted. As established by Mr. Waers, Respondent should have gone to the field and collected sufficient data, made sufficient measurements as to accurately position the residence on the property and to show property lines in all instances that might affect property rights as a means to allow the land owner to make additions to the house without encroaching upon his neighbors property. To perform the survey properly Respondent should have made notes and comparisons between the legal description in the record and the physical boundaries found on the parcel.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered finding the Respondent in violation of Counts I and V with the exception of part (e) to those counts and part (f) to Count V; in violation of Count II but not Count VI; in violation of Counts III and VII; in violation of Counts IV and VIII; and, absolving him of any violation alleged in Count IX. As a penalty, a $1,000 fine should be imposed, with a ninety day suspension should Respondent attempt to reactivate his license. DONE and ENTERED this 15th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1996. APPENDIX CASE NO. 95-5375 The following discussion is given concerning Petitioner's proposed findings of fact: Paragraphs 1 and 2 are subordinate to facts found. Paragraphs 3 and 4 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 5 is subordinate to facts found. Paragraph 6 is not sufficient in itself to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 7 is rejected in its suggestion that proof was sufficient to demonstrate that the civil action pertained to the survey performed by Respondent for Mr. Smith. Paragraphs 8 through 18 are subordinate to facts found as is the first phrase in Paragraph 19. The remaining phrases in Paragraph 19 and Paragraph 20 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 21 is subordinate to facts found. Paragraphs 22 through 27 are not sufficient in themselves to support findings of fact. See Section 120.58 Florida Statutes. Paragraphs 28 through 44 are subordinate to facts found. Paragraphs 45 through 47 are not sufficient in themselves to support a finding of fact concerning reporting fixed interior improvements. See Section 120.58 Florida Statutes. Paragraphs 48 through 50 are subordinate to facts found. Paragraphs 51 and 52 are rejected in the suggestion that proof was made sufficient to demonstrate that the court case which judgement was obtained was proven to be a case related to the survey performed by Respondent for Mr. Smith. Paragraph 53 is subordinate to facts found. COPIES FURNISHED: Miriam Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald F. Mowrey, Jr. 312 Iola Street Port St. Joe, Florida 32456 Donald F. Mowrey, Jr. Post Office Box 838 Port St. Joe, Florida 32456-0838 Angel Gonzalez, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue May this appeal be dismissed as moot due to the impossibility of the development order being granted?
Findings Of Fact This case involves Florida Rock's May 20, 1992, application for a development order to the Citrus County Department of Development Services (LDDS or Department) for a mining operation. Sometime after 1980, the real property at issue had been designated "extractive" on the Future Land Use Map (FLUM). Citrus County's 1986 Comprehensive Plan designated Florida Rock's real property as "extractive." In 1990, after the State of Florida, Department of Community Affairs challenged the "extractive" designation in the County's 1989 plan amendments, the site continued to be designated "extractive." Citrus County simultaneously enacted its Citrus County Land Development Code (LDC or Code). At all such times, zoning and all maps also embraced the same "extractive" designation. Citrus County maintains two sets of land use maps. The Comprehensive Land Use Plan (CLUP or Comprehensive Plan) has a FLUM (a generalized land use map) and the LDC has attached to it atlas maps on a smaller scale. The LDC maps are identical to the county tax assessor tax maps and show individual parcels/lots of record. Such parcels defined by the Comprehensive Plan and LDC text have a land use designation as associated with each. Mining operations are permitted on real property designated "extractive." Under the LDC, when an application is submitted, it must be reviewed for completeness and the applicant notified within three days of whether the application is deemed complete or incomplete. If the application is deemed incomplete, the applicant must be advised of how the application should be amended or supplemented in order to be deemed complete for technical review. The applicant then may amend or supplement the application. Once a determination of completeness has been made, a technical review must be completed by each member of the technical review team within ten days, and thereafter, a series of committee meetings and public hearings may follow. During this portion of the procedure, amendments to the application may be required before the development order is ultimately granted or denied. Citrus County's land use amendment process began on April 10, 1992, before Florida Rock's application was submitted to the LDDS. Florida Rock had actual notice on April 10, 1992, that a change in its property designation from "extractive" to "rural residential" was pending, but no moratorium on development orders was imposed. Thus, the "rush to the Commission" began.1 On May 20, 1992, Florida Rock's application for a development order to permit mining on its real property was submitted to the Citrus County LDDS. The Department made four sequential determinations of incompleteness. At no time did Florida Rock ever amend its application or submit any supplemental material. On December 22, 1992, Citrus County's Board of County Commissioners adopted Ordinance 92-A73, to change the designation of the subject real property on the Comprehensive Plan from "extractive" to "rural residential." The ordinance does not recite any retroactive effect. No moratorium on development orders was imposed. Mining operations are prohibited on real property designated as "rural residential." On December 28, 1992, the Department made the determination of incompleteness which gave rise to this instant proceeding. Florida Rock has not affirmatively plead and has not proven that the Department made any of its incompleteness determinations arbitrarily, capriciously, discriminatorily, in bad faith or solely for purposes of delaying the process of a technical review on the merits of the project. In the absence of any formal allegation and affirmative proof, no improper motive or improper purpose by the Department can be found.2 The December 28, 1992, determination of incompleteness noted, in the following terms, the refusal of the applicant to supply certain assurances: The applicant is exempt from Section 4344 of the LDC only in regards to the bonafide [sic] agricultural or forestry purposes. Commercial forestry involves the harvesting or marketable timber not the wholesale clearing of all vegetation. Therefore, the impact on protected trees as defined by Section 4342.A and 4344.B needs to be addressed as it regards compliance with Section 4344 of the LDC. The application needs to reflect how this will be accomplished. Contrary to your statement, this item was previously referenced as Item 11 in my letter of May 29, 1992. While vegetative removal of unprotected trees as defined in Section 4343.A.6. of the LDC is acceptable, the issue of protected trees as defined in Section 4344.B of the LDC is still unaddressed in your application submittal. The submitted site plan indicates a setback of less than the 3000 feet from residentially committed areas as required by Section 4525.A.8.1 and 4531.E.1. of the LDC regarding expansion of existing mines. Interpretation of the LDC is addressed in Section 1410 of the LDC and so the attached interpretation is not applicable. Please revise your site plan to reflect this set back or resubmit your application after vesting pursuant to Section 3160 through 3163 of the LDC has been determined. Pursuant to Section 380.06(4)(b)F.S., Citrus County believes that Florida Rock Industries operations within Hernando/Citrus Counties may exceed DRI threshold. Therefore, please provide a letter from DCA resolving this matter. In regard to your position that DCA has not formally requested a binding letter, please note that the above referenced citation specifies the state land planning agency or local government with jurisdiction over the land on which a development is proposed may require a developer to obtain a binding letter. Based on information made available to this Department, we believe a determination is called for. In regards to the requested items 23 through 34 of my letter of May 29, 1992, please be advised that Section 4659.F. of the LDC requires proof of compliance with all applicable Citrus County regulations and policies. This includes the Comprehensive Plan (C.O. 89-04) and its amendments. The information requested is to assure that the proposed development will be in compliance with the Comprehensive Plan. None of the reasons listed in the December 28, 1992, determination of incompleteness specifically stated that Florida Rock could not qualify for a development order for mining because its real property had just become designated by the December 22, 1992, ordinance as "rural residential," instead of "extractive." Indeed, the December 28, 1992, determination of incompleteness did not mention the ordinance change at all. However, its fourth paragraph concerns the requirement that an applicant establish its real property's consistency with the Comprehensive Plan. The County has taken the position that, without using the terms "extractive use" or "rural residential," paragraph four encompasses the change of ordinance as well as all matters pertaining to the Comprehensive Plan. Under the statutes in effect on December 22, 1992, Ordinance 92-A73 was not effective until filed with the Secretary of State. (See the face of the ordinance). The exact date of its filing was not stipulated, but it was agreed that filing occurred sometime in December 1992. Under Florida's growth management process, the newly adopted ordinance also was transmitted to the State of Florida, Department of Community Affairs, which would then issue a report before the new ordinance became part of the Citrus County Comprehensive Plan.3 On January 3, 1993, Florida Rock challenged, pursuant to Section 163.3184(9), Florida Statutes, the new ordinance as it progressed through the Florida Department of Community Affairs' review process. On January 19, 1993, Citrus County's LDDS sent a letter to Florida Rock, further interpreting its December 28, 1992, determination of incompleteness. That letter also made no specific mention of the ordinance amendment and did not amend the fourth paragraph of the incompleteness determination. It provided, in pertinent part: For the record, my letter of December 28, 1992, was not a "Denial" but rather a determination of incompleteness pursuant to Section 2222.B.1 of the Land Development Code. In response to your question of January 12, 1993, I was not persuaded by your argument in regards to access by way of Parcel 22100 lying in Section 36, Township 20 South, Range 19 East, but did recognize the driveway onto County Road 581. Florida Rock declined to amend its application or supply the information requested. On January 26, 1993, Florida Rock initiated the instant administrative appeal of the December 28, 1992, determination of incompleteness. However, by agreement of Florida Rock and Citrus County, the appeal was abated until January 13, 1999 (see the Preliminary Statement), when it was transferred from a local hearing officer to the Division of Administrative Hearings. Florida Rock's challenge of the ordinance before the Florida Department of Community Affairs also did not progress in a timely manner. On February 6, 1998, Florida Rock's challenge to the new ordinance was dismissed. The effect thereof is that the Florida Department of Community Affairs has found, and entered a Final Order pronouncing, Citrus County Ordinance 92-A73 to be in compliance with Chapter 163, Florida Statutes, pertaining to Florida's Local Government Comprehensive Planning and Land Development Act. That Final Order, as final agency action, was not appealed. By any interpretation, Citrus County's Comprehensive Plan, embracing the new ordinance's land use designation of Florida Rock's property as "rural residential" has been in effect since February 1998, as have been coordinated zoning, FLUM, and LDC atlas maps. Since December 22, 1992, the ordinance has designated Florida Rock's proposed site as "rural residential," which precludes the proposed mining operation. Since February 1998, the Comprehensive Plan, FLUM, and LDC atlas maps have all embraced, and currently all of them now embrace, the ordinance, and all of them prohibit mining or "extractive use" of the real property in issue.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Citrus County Department of Land Development Services enter a final order dismissing the appeal for mootness. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 4th day of June, 1999.
The Issue The issues for determination are whether, as alleged in the Amended Administrative Complaint, Walter L. Moyer, violated Section 472.033(1)(g) and (h) F.S. and Rule 21 HH-2.01(3) by performing a land survey in a negligent or incompetent manner, without due care and without due regard for acceptable professional standards, and violated Section 472.033(1)(e), (g) and (h) F.S., and Rule 21HH- 2.01(3) and (5) FAC, by providing a false or deliberately inaccurate survey sketch to a client on two separate occasions.
Findings Of Fact Walter L. Moyer has been licensed by the State of Florida as a registered surveyor from approximately August 1977 until present, and holds license number LS 0002828. His address for license purposes is Palm Bay, Florida, in Brevard County. His practice as a surveyor has been primarily in construction-related surveys and lot surveys, with very few parcel surveys. THE CHILCOTT SURVEY (COUNT I) In June 1984, Charles and Robin Chilcott purchased property on Grant Road, in Brevard County, consisting of approximately 1.44 acres of undeveloped land. The Chilcotts acquired the parcel with the intent to construct a home and keep their horses. Shortly after purchase, the Chilcotts retained Moyer to prepare a boundary survey of the parcel. The cost of the survey was $315.00 including $7.50 extra cost for two concrete monuments, rather than iron rods, at the front corners, as requested by the Chilcotts. The survey was performed on July 27, 1984, and Moyer was paid. He furnished the Chilcotts several sketches of survey which he had signed and sealed. In 1985, the Chilcotts hired a contractor, Casey Jones, and commenced building their house. At the request of Casey Jones, Moyer prepared both the foundation and final surveys. These two surveys were added to the boundary survey on September 26, 1985, and November 23, 1985, respectively. At the time that the field work on the foundation and final survey was done, Moyer detected no problems with the monumentation he had initially set in the boundary survey. He did not see any evidence that the monuments had been disturbed. The final survey shows the house to be 17.35 feet inside the east lot line. The Chilcotts wanted at least that distance because the area is zoned agricultural and they did not want the neighbor's livestock close to the house. They also understood that the county required a minimum 10-foot set-back. In connection with the construction of their home, and in reliance upon Moyer's survey identifying their property's boundary, the Chilcotts installed a well and a fence and had approximately 800 feet of sod planted along the east boundary. The Chilcotts have since learned that those improvements are not on their property and that their house is, in fact, only 7.25 feet from the lot line. In May, 1986, David Rothery, a Florida licensed land surveyor, performed a boundary survey of the Donald Waterbury parcel adjacent to and just east of Chilcott's land on Grant Road. Rothery checked and double-checked his field measurements and still found a ten foot discrepancy in the placement of the monuments on the eastern corners of the Chilcott parcel. Those monuments were ten feet too far to the east and were, therefore, placed ten feet within the Waterbury boundaries. He did not observe any indication that the monuments had been moved, and when he placed his corners for the proper boundaries, he found no evidence that monuments had ever been there before. As required, the monuments placed by Moyer had his identification on them. Rothery put a dotted line on his survey with the notation, "Apparent survey error on adjoining property by Walter Moyer Land Surveying". Rothery also called Moyer and told him about the discrepancy. On the morning of May 10, 1986, Moyer went back out to the Chilcott property and discovered that his monuments were ten feet too far to the east. He was in the process of moving them when he was confronted by Charles Chilcott. He told Chilcott that an error was made, that he "dropped ten feet". There was some discussion about possible remedies such as paying for the well and fence to be moved or buying the ten feet from Waterbury. Chilcott did not let Moyer finish moving the monuments. That night, Chilcott, who had never met Moyer before, but had only communicated by phone or in writing, called Moyer's house and confirmed that it was the same person he had seen moving the monuments. That was the last time Chilcott spoke with Moyer. Chilcott called Moyer's house several times over the following months, but always reached Mrs. Moyer and his phone calls were not returned. Moyer did contact Waterbury about purchasing the ten foot strip. Waterbury was concerned about how this would affect his eventual ability to build on his lot and refused to sell. Waterbury is not pressing the Chilcotts about their encroachments; he simply expects to have the matter resolved sometime in the future. By a letter dated 8/18/86, the Chilcotts requested damages of $2,500.00 from Moyer, including an estimate of costs to move the well, fence and a power pole and to replace sod. On September 13, 1986, another letter from Chilcott to Moyer listed the same plus additional damages, for a total demand of $4,025.00. In a letter to Chilcott dated August 27, 1987, Moyer offered to pay the application fee to seek a variance from the setback requirement and offered to provide a final survey and half the cost of moving the well. The letter denied that the problem was Moyer's fault and said that Moyer believes that the markers were moved between the date the survey was completed and the date of the foundation. The Chilcotts rejected that offer. No evidence in this proceeding supports Moyer's contention that the Chilcotts or someone else moved the monuments he originally set in 1984. The evidence does establish a strong circumstantial basis for finding that the monuments were not moved, but were incorrectly placed by Moyer at the time that the boundary survey was completed. Setting the monuments properly is an essential component of conducting a boundary survey. Moreover, when a subsequent final survey is done, it is the duty of the surveyor to assure that the original monuments have not been disturbed during construction and site work by a contractor. Assuming that Moyer is correct in his contention that the monuments were moved after they were set by him, but before the foundation was placed, it was his duty to discover that fact. He did not, since his final survey shows that the house is 17.35 feet from the boundary, whereas the house is, in fact, approximately seven feet from the adjoining property. Except when witness monuments are used, as when a tree or other obstruction sits on a boundary corner, it is a violation of standard surveying practice to place a monument other than where it is shown on the survey drawing. In this instance, the drawing is accurate; as described in the Chilcott deed, the northeast corner of their property is 600 feet from the section corner. There was no need for witness monuments here; yet the east boundary monuments are ten feet off and are 590 feet from the section corner. There is no overlap in the legal descriptions of the Waterbury and Chilcott properties to account for the overlap in monuments discovered by David Rothery, the Waterbury surveyor. Surveying is a system of checking measurements. Both human and equipment errors in the profession are neither rare nor entirely common. Even the most up-to-date electronic equipment is subject to discrepancies. Checking and rechecking field measurements helps alleviate errors. The minimum technical standards developed by and for the profession are intended to reduce errors, although it is not clear that slavish adherence to those principles will absolutely prevent any possibility of error. When errors do occur, the standard of the profession is to work with the client to resolve the problem. In some cases, this may mean the purchase of the client's property or adjoining property if the party is willing to sell. Moyer's limited offers do not meet the established standards of the profession. THE BURGOON-BERGER SURVEYS COUNTS II AND III On August 21, 1986, Moyer signed and sealed a survey sketch of Lot 22, Block 2245, Port Malabar, Unit 44, in Brevard County Florida for Burgoon-Berger Construction Co. The survey of Lot 22 showed the drawing of an improvement within the boundaries of the lot with a notation, "FOUNDATION FF ELEV 25.86." Next to the date on the survey is the abbreviation, "FND". The survey was submitted to the Palm Bay Building Department on August 26, 1986, the day before the pre-slab inspection. A pre-slab inspection is done before the slab is poured; therefore, at the time the survey was signed and sealed, the concrete slab had not yet been poured. On October 20, 1986, Moyer prepared a sketch of survey of Lot 7, Block 1054, Port Malabar Unit 20, in Brevard County, Florida for Burgoon-Berger Construction Co. The survey sketch indicated an improvement within the boundaries of the lot, with the notation, "FOUNDATION FF ELEV 26.87". Next to the date on the survey is the notation "FND". The survey was submitted to the City of Palm Bay on October 28, 1986. The pre-slab inspection was done by the City on October 22, 1986. Again, the survey was signed and sealed before the slab was actually poured. The notation, "FOUNDATION FF ELEV", is commonly understood to mean "foundation, finished floor elevation". "FND" is commonly understood to mean "foundation". Moyer, himself, has used both notations to signify those common usages. Foundation is generally accepted in the land surveying profession to mean something permanent and constructed, like a concrete slab, not bust the ground or wooden form boards used to guide the pouring of the slab. A survey which depicts an improvement with the note, "FOUNDATION FF ELEV", when the floor has not been finished misrepresents the status of the construction of that project. Reviewing personnel at the Palm Bay Building Department rejected the surveys and alerted the City's Flood Plain Administrator. That individual, Maria Parkhurst, reported the incidents to the Department of Professional Regulation. Lots 22 and 7 are both in the flood plain and slab elevation is significant, as the City must assure that federal maximum elevation requirements are met. The City requires the submission of surveys containing slab elevation data. Banks also rely on foundation surveys submitted by contractors in order to determine the state of construction before the release of a foundation draw. That is, before the contractor is entitled to partial payment for his work, the bank needs to know if the work has been done. Both Moyer and his client, Bergoon-Berger, intended the notation in these cases to mean "finished form", not "finished floor". Burgoon-Berger had Moyer perform a survey after the wooden form boards were constructed, but before the concrete slab was poured, in order to assure that the house was placed properly on the lot. The survey was somehow submitted prematurely to the city, whereas because Moyer and his client intended that the poured slab be re-surveyed before the sketch was submitted. When the survey for Lot 7 was resubmitted to the City on October 31, 1986, the slab had been poured and, while the elevation remained the same, the size of the fireplace foundation was slightly smaller. The notation, "FOUNDATION FF ELEV" remained the same, with nothing on the face of the survey sketch to indicate that this later version was the finished floor, rather than the finished form. Moyer no longer uses these abbreviations. A survey is not valid until it is signed and sealed, but once it is signed and sealed, it signifies to the client and to the public at large that the information provided therein is true and accurate. The standard of professional land survey practice dictates that abbreviations which are not commonly accepted should be explained on the face of the drawing. The professional standards also dictate that even if a client asks for certain information on a survey, in anticipation that other third parties might rely on the survey the professional should either refuse to indicate improvements that do not exist yet or indicate unambiguously that the improvements are intended, but still under construction. Notwithstanding Bergoon-Berger's and Moyer's intentions with regard to the two surveys at issue, Moyer failed to meet professional standards when he signed and sealed those surveys and released them to his client.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final Order be issued finding Respondent guilty of Counts I, II and III of the Amended Administrative Complaint and placing him on probation for a period of two years, under such conditions as the Board may deem appropriate, including, but not limited to the participation in continuing professional education courses and the pursuit of a reasonable resolution to the Chilcott's boundary problems arising from the Respondent's negligence in performing their survey. DONE and RECOMMENDED this 3rd day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1987. APPENDIX The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner (Count I) Adopted in Paragraph 1. Adopted in Paragraph 2. 3-4. Adopted in Paragraph 3. Incorporated in Part in Paragraph 1., as to the limitation of experience, otherwise rejected as immaterial. Rejected as immaterial. Adopted in Paragraph 3. Adopted in part in Paragraph 3, otherwise rejected as unnecessary. 9-10. Rejected as unnecessary. Adopted in Paragraph 12. Rejected as unnecessary. Adopted in Paragraph 4. 14-18. Adopted in Paragraph 3 and 4. Adopted in Paragraph 11. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 11. 23-28. Adopted in Paragraph 7. Rejected as unnecessary. Adopted in Paragraph 7. Adopted in part in Paragraph 8, however the accurate date is May 10, 1986, and the evidence is inconclusive as to whether Moyer spoke to either of the Chilcotts before coming back. This fact is not material. 32-33. Adopted in Paragraph 8. 34. Rejected as cumulative and unnecessary. 35-37. Adopted in substance in Paragraph 8. Rejected as cumulative and unnecessary. Adopted in Paragraph 9. Adopted in part in Paragraph 9, otherwise rejected as unsubstantiated by competent evidence and immaterial. Adopted in Paragraph 6. 42-43. Rejected as cumulative. 44. Adopted in substance in Paragraph 10. 45-47. Rejected as cumulative. 48-49. Adopted in Paragraph 12. 50-51. Rejected as cumulative and unnecessary. Adopted in Paragraph 13. Rejected as cumulative. 54-55. Adopted in Paragraph 14. (Counts II and III) Adopted in Paragraph 1. Adopted in Paragraph 15. Adopted in Paragraph 16. 4-6. Adopted in Paragraph 17. Adopted in Paragraph 20. Adopted in Paragraph 21. Rejected as unnecessary. Adopted in Paragraph 18. Adopted in Paragraph 25. Adopted in Paragraph 18. Rejected as cumulative. Adopted in substance in Paragraph 25. Rejected as unnecessary. Adopted in Paragraph 23. Rejected as unnecessary. Adopted in Paragraph 25. Respondent Adopted in Paragraph 1. 2-5. Addressed in Background. Adopted in Paragraph 2. Adopted in Paragraph 3. 8-11. Rejected as immaterial. 12-13. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 7. Adopted in part in Paragraph 7. Adopted in Paragraph 7. Rejected as contrary to the weight of evidence, except for the fact that the Chilcott house is 7 feet from the boundary. That fact is adopted in Paragraph 6. 19-20. Adopted in substance in Paragraph 8. Adopted in Paragraphs 9, 10, and 14. Adopted in Paragraph 10. Rejected, except as adopted in Paragraph 10. 24-25. Rejected as unnecessary. Adopted in Paragraph 11. Adopted in part in Paragraph 14, otherwise rejected as unsupported by the weight of evidence. Adopted in substance in Paragraph 13. Rejected as immaterial. While the boundary depiction is accurate, the placement of the house is in error on the final and foundation surveys and, of course, the markers are erroneously set. 30-33. Addressed in Background. 34. Adopted in Paragraphs 15 and 17. 35-36. Adopted in part in Paragraph 22, otherwise rejected as contrary to the weight of evidence. 37-38. Rejected as immaterial. 39. Adopted in Paragraphs 19 and 22. 40-44. Rejected as immaterial. COPIES FURNISHED: DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JAMES P. BEADLE, ESQUIRE 5205 BABCOCK STREET N. E. PALM BAY, FLORIDA 32905 ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
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
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue At issue in this proceeding is whether petitioner's application for licensure by examination as a professional land surveyor should be approved.
Findings Of Fact On November 18, 1988, petitioner, William Byron Groover (Groover), filed an application with respondent, Board of Professional Land Surveyors (Board), for licensure by examination as a professional land surveyor. By letter of March 28, 1989, the Board denied Groover's application predicated on his disclosure in his application of a conviction for possession of marijuana in 1981, and its conclusion that such conviction demonstrated a lack of good moral character and an adjudication of guilt of a crime directly related to the practice or ability to practice land surveying. Groover filed a timely request for formal hearing to contest the Board's decision. At hearing, the proof demonstrated that on September 16, 1981, Groover was convicted of possession of more than 20 grams of cannabis (marijuana), a third degree felony proscribed by Section 893.13, Florida Statutes, and on October 16, 1981, he was sentenced to a term of two years confinement and fined $2,000.00 for his offense. Regarding the circumstances surrounding his conviction for possession of marijuana, the proof demonstrates that in May 1981, Groover was assisting an acquaintance, James Billeter, move furniture from Florida to Arizona when Billeter's van was stopped by a Florida Department of Agriculture inspector after he failed to stop at an inspection station on I-10 in Suwannee County. Upon inspection of the van, boxes containing approximately 210 pounds of marijuana were discovered among the furniture in the van, as well as a "baggie" marijuana in the cab. Groover, whose testimony is credited, denied any knowledge that the van contained any controlled substances, other than the baggie of marijuana in the cab. As to the baggie, which contained about 21 grams of marijuana, Groover acknowledged its presence, and conceded that he and Billeter had smoked some of that marijuana on their trip. On July 5, 1982, Groover was admitted to Lawtey Correctional Institute to serve his sentence, and on July 5, 1983, he was released for having completed his sentence. During the course of his incarceration, Groover conducted himself in a responsible manner. Following his release from prison in 1983, Groover was employed by Berry and Calvin Land Surveying and Engineering, and remained so employed until May 1988 when he began his current employment with Stephen H. Gibbs Land Surveyor. By those who know of his work, Groover is considered learned in land surveying, dependable, and trustworthy. While Groover was convicted of possession of marijuana in 1981, he has since avoided any controlled substance, and has demonstrated his rehabilitation through dependable and laudable labor in the field of land surveying. Under the circumstances, his conviction in 1981 does not detract from the finding that he currently possesses the requisite good moral character to practice land surveying in the state of Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the application of William Bryon Groover for licensure by examination as a professional land surveyor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2695 The Board's proposed findings of fact are addressed as follows: Addressed in paragraph 3. Subordinate. To the extent relevant, addressed in paragraphs 2 and 3. Addressed in paragraph 3. Not relevant since there was no showing Groover suffered any substance abuse or alcoholic problem necessitating treatment. Not relevant since not a basis for the denial of his application, and not an issue thereafter timely raised by the Board prior to hearing. Even if properly raised, such facts do not detract from the finding that Groover currently possesses the requisite good moral character to practice land surveying. Addressed in paragraph 5. Addressed in paragraph 3, otherwise rejected as subordinate or as comment on the evidence. COPIES FURNISHED: Mr. William Bryon Groover 892 Southwest 14th Court Fort Lauderdale, Florida 33315 Ann Cocheu Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Rex Smith, Executive Director Board of Professional Land Surveyors Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
