The Issue Whether Petitioner, the Charles J. Harris Trust, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. The Applicant, Charles J. Harris Trust, is the owner of real property located in Clay County, Florida. The Applicant's property (hereinafter referred to as the "Property") is more fully described in Exhibit "A" of the documentation offered in support of the Applicant's application. The Property consists of approximately 29 acres located on Lake Geneva. The Property was purchased by Charles J. Harris and Bonnie Lee Harris, husband and wife, on January 14, 1970. On May 4, 1972, the Property was transferred by the Harris' to the Charles J. Harris Trust. The beneficiaries of the Applicant are the three adult children of the Harris'. One of those children, Becky Harris, is profoundly retarded and requires constant care. While room and board are provided for Becky, the Harris provide funds for other needs. Development of the Property; Government Action Relied Upon. On January 14, 1970, the Harris' entered into an contract to purchase the Property. See Exhibit B of the documentation in support of the Applicant's application for the specific terms of the purchase agreement. Prior to entering into the purchase contract, Winfred Crawford, a registered real estate broker, wrote a letter dated January 12, 1970, on behalf of the Harris' to George A. Gnann of the Zoning Board for Clay County, Florida. Ms. Crawford informed Mr. Gnann of the following: The property is being purchased with the thought of subdividing and the buyer has requested that we obtain for him the Clay County requirements, as to lot sizes, road sizes and etc., also please advise the zoning now on this property and what the requirements would be to change the zoning necessary to meet the County Requirements. All information that would be informative will be appreciated. By letter of January 14, 1970, Ms. Crawford wrote another letter to Mr. Gnann memorializing information provided by Mr. Gnann verbally in response to Ms. Crawford's letter of January 12, 1970. A copy of this letter was provided to the Harris' on January 14, 1970, prior to their purchase of the Property. In part, Ms. Crawford wrote the following: I understood the requirements and procedure as follows: The Clay County required lot size- 15,000 square feet, no lot to be less than 70 feet in width. The set back line from any street would be 25 feet, and set back from side lot lines 10 feet. . . . Proposed Plat would be submitted to you for your approval and signature. (This would be for approval of lot sizes and set back lines). Proposed Plat then would be submitted Louis McKee, Clay County Engineer, Orange Park, Florida, for his approval of width and location of streets. Proposed Plat would require his signature. Proposed Plat then would be submitted to Mr. Harry Riggs, County Health Department, Green Cove Springs, Florida, for his approval for sewerage disposal. Proposed Plat would require his signature. Proposed Plat would then be submitted for the approval and acceptance of the County Commissioners, requiring the Chairmans [sic] signature of acceptance before the Plat could be recorded. Based upon the foregoing, Clay County represented to the Harris' how the Property could be developed according to zoning and Clay County laws governing development of property in existence in 1970. Clay County also informed the Harris' of the steps that they needed to follow in order to plat the Property according to Clay County law in 1970. Detrimental Reliance. In reliance upon Clay County's representations, the Harris' purchased the Property. The Harris' paid $35,000.00 for the Property. The Harris' also paid interest of $29,380.00 to finance the purchase price for the Property. On July 18, 1972, the Clay County Zoning Commission gave notice that it would hold a public hearing on Thursday, August 3, 1972, to consider rezoning certain properties in Clay County. Among other things, the Clay County Zoning Commission gave notice that it planned to consider rezoning the Property from Agricultural, "A", to Single-Family Residential, "RA". The RA zoning category changed the minimum residential lot size allowed for the Property from 15,000 square feet to 20,000 square feet. Prior to the Harris' purchase of the Property, the shoreline of the Property had been modified. A natural cove along the shoreline of the Property was closed in with a spoil dike and island. After purchasing the Property the Harris' began seeking approval from the Florida Department of Environmental Regulation (now the Department of Environmental Protection)(hereinafter referred to as the "Department") of a permit to restore the shoreline to its original condition. In connection with the restoration of the Property's shoreline, costs were incurred by the Applicant for the services of engineers and surveyors. A "Study of Proposed Reconnection of Pond to Lake Geneva" was prepared by Barry A. Benedict, Ph.D., and plans for the restoration of the shoreline were prepared. On March 26, 1982, the Department approved a permit for the restoration of the shoreline. The evidence failed to prove that Clay County made any representations to the Applicant as a result of the process of obtaining the permit. The restoration of the shoreline of the Property was completed by the Applicant in 1982. The costs of the restoration project incurred by the Applicant was approximately $11,940.00. During the early 1980's the Applicant incurred costs of $22,319.00 to clear a dirt road from the western boundary of the Property to most of the lots along the shoreline, including four lots subsequently sold by the Applicant. The four lots sold by the Applicant were sold Between approximately 1983 and 1984. The lots were sold to unrelated third parties. Non-exclusive easements of ingress and egress were also conveyed to the owners of the sold lots. All of the sold lots are located along the shoreline of the Property. One of the sold lots, Lot 1-L (1.163 acres), is located along the northern boundary of the Property and has ingress/egress along the northern boundary of the Property. Another of the sold lots, Lot F (0.823 acres), requires ingress/egress along the cleared road that was cut through unsold lots. The other two sold lots, Lots C (0.681 acres) and D (0.731 acres), are contiguous and require ingress/egress along the cleared road that was cut through unsold lots. Lots C and D are separated by Lot E, a 0.691-acre unsold portion of the Property. In 1985, after selling the four lots, the Applicant had a Boundary Survey of the Property prepared by Joseph G. Knapp, Registered Land Surveyor. The Boundary Survey was completed June 22, 1985. The Boundary Survey identifies how the Applicant intends to subdivide the Property into 34 lots. Three of the lots are just over one acre. The rest of the lots are between 0.6 acres and just under one acre. The Boundary Survey prepared for the Applicant could have served as a recorded plat but was not recorded with Clay County by the Applicant. Steps 3 through 6 outlined in Ms. Crawford's letter of January 14, 1970, setting out the representations from Clay County concerning the laws governing development of the Property in 1970, and in particular, recording a plat of the Property, were not followed by the Applicant. At the time of the formal hearing of this case, approximately 23 acres of the Property remain unsold. Rights that will be Destroyed. Clay County adopted a comprehensive growth management plan in January 1992. Pursuant to the plan, the land use for he Property was designated as "Agriculture." Land designated with a land use of "Agriculture" pursuant to the plan may be developed at a density of one residential unit per 20 acres. The land use designation was modified in 1994 to "RA 2" but not in any material respect. Property designated "Agriculture" or "RA 2" may also be used for agricultural purposes as long as they are "bona fide" agricultural purposes, or "good faith commercial agricultural use of the land." Prior to the adoption of the Clay County comprehensive plan, the Applicants could have sold the remaining 23.7 acres of the Property as the remaining 30 unsold lots designated in the Boundary Survey prepared for the Applicant. As a result of the land use designation for the Property adopted in Clay County's comprehensive plan, the remaining 23.7 acres of the Property with easements for ingress and egress to sold lots may be developed with one residential unit only. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
Findings Of Fact At all pertinent times respondent Amons D. Courtney, Jr., has been registered as a professional land surveyor holding license No. LS 002819 issued by petitioner. By order entered October 3, 1985, in case No. 0052302, the Board of Professional Land Surveyors placed respondent on probation for the second time. As a condition of probation, he was required to submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the Board for its review. . . . Five surveys shall be submitted within three months from the filing of the final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Petitioner's Exhibit No. 11. As far as the evidence disclosed, Mr. Amons submitted the requisite number of surveys for review, within the times specified by the Board's order, but pertinent record plats did not always accompany these submissions. Among the surveys submitted to the Board in accordance with the probation condition was a survey done for James Harvey by Mr. Courtney, doing business as "Courtney-Tisdale Ent., Inc." Petitioner's Exhibit No. 1. "Courtney & Tisdale Ent., Inc." has never been licensed in Florida, nor did petitioner ever issue a certificate of authorization to any such entity. Petitioner's Exhibit No. 8. Among the surveys Mr. Courtney furnished to the Board in accordance with his probation condition, was one he did for Cynthia Cotton. On this survey, respondent failed to report or resolve a discrepancy between a distance he had measured, as reported in field notes, and the calculated distance he set out without qualification, on the survey. He also reported the length of one side of the lot as precisely 125 feet, despite the absence of any field notes to support this conclusion. Petitioner's Exhibit No. 3. Mr. Courtney performed a survey of a rectangular lot for Kim Shepherd, and subsequently furnished a copy of it to the Board. The accuracy of this survey is open to serious question. Petitioner's survey reported lengths for the lot's sides that correspond precisely to what appears on the record plat. This is also the case with the angles the sides form when they meet, even though "it's almost impossible to repeat [such measurements] to the nearest second of ar[c]." T.123. The field notes reflect no measurements that would support these findings. Mr. Amons reset a back monument nevertheless. Petitioner's Exhibit No. 4. On the Larry Holly survey, also chosen by respondent for Board review, Mr. Courtney failed to disclose a discrepancy between the measured distance, as reported in field notes, and a distance set out on a record plat. Petitioner's Exhibit No. 5. On the Robert and Connie Baxley survey, Mr. Courtney indicated a discrepancy between the south boundary line and a fence along the line but did not show whether the fence encroached on the Baxley property or on the neighbor's. Petitioner's Exhibit No. 6. The field notes reflect "a startling lack of precise measurements." On the Randy Enslow survey, too, the field "notes are insufficient to support the precision of the measurements that are shown . . ." T.13l. The survey is not tied to the closest street corner or to any other outside reference point for control. In short, even though the Board's final order in case No. 0052302 left it to respondent to select "representative" surveys for review, the surveys he submitted, twenty in all, were riddled with errors, including errors and omissions that constituted negligence in the practice of surveying. The uncontroverted evidence established that "Mr. Courtney is either unable or unwilling to comply with the Minimum Standards based on the surveys that were submitted by him under probation." T.134. As to penalty only, petitioner proved that respondent was a subject of disciplinary action in case No. 33882, before either the present proceedings or the proceedings that eventuated in the probation order were instituted.
Recommendation Under Rule 22 HH-9.002, Florida Administrative Code, permissible penalties for these offenses range from reprimand to revocation "depending upon severity of offense and injury to the client or public". No injury was proven here, but expert testimony established the seriousness of the negligence. Also pertinent under Rule 22 HH-9.003, Florida Administrative Code, are previous offenses, respondent's disciplinary history, and "status of the . . . licensee at the time the offense was committed", Rule 22 HH-9.003(1)(f), Florida Administrative Code, all of which weigh against respondent, and financial hardship for the licensee, as to which there is no evidence. It is, accordingly, RECOMMENDED: That petitioner revoke respondent's license to practice land surveying. DONE and ENTERED this 20th day of November, 1989, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-2743, 89-3399 Petitioner's proposed findings of fact Nos. 1 through 6 and 18 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 7 through 13 are properly proposed conclusions of law. Petitioner's proposed findings of fact Nos. 14 through 17 relate to subordinate matters. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 R. Glenn Arnold Warfield, Santurri & Arnold 25 West Cedar Street Post Office Box 13410 Pensacola, Florida 32591 Amons D. Courtney, Jr. Route 4, Box 892 Milton, Florida 32570
Findings Of Fact Respondent Charles Edward Parsons (Parsons) is now and was at all times referred to in these Findings Of Fact a licensed real estate salesman having been issued license number 0362183. From approximately February 8, 1982 through May 13, 1983, Parsons was licensed and operating as a real estate salesman in the employ of corporate broker K Realty of Tampa, Inc., with the qualifying broker being Katherine I. Ley. As part of his employment, Parsons obtained a listing agreement from Richard and Julie Randall for the sale of certain real property. The listing was effective from August 24, 1982 to December 24, 1982. On October 22, 1982, Parsons, as purchaser, entered into a Contract for Sale of Real Estate with the Randalls, as sellers, for the purchase of Randalls' property. As part of the contract, Parsons represented that he had made and delivered in trust a $50.00 earnest money deposit to his registered employing broker, K Realty of Tampa, Inc. The Randalls to Parsons sales contract closed on or about November 18, 1982. At the closing, Parsons instructed the closing agent to credit Parsons, as purchaser, with $1,140.00 towards the payment of the purchase price in lieu of payment of K Realty's real estate commission. At no time referred to above in these Findings Of Fact did Parsons advise or inform K Realty of Tampa, Inc. or Katherine I. Ley of the Randalls to Parsons real estate transaction. Nor did either K Realty of Tampa, Inc. or Katherine I. Ley receive or waive payment of a brokerage commission in connection with the Randalls to Parsons transaction. Parsons acted throughout without the prior knowledge or consent of either K Realty of Tampa, Inc. or Katherine I. Ley. Notwithstanding his representations to the contrary, Parsons did not place with K Realty of Tampa, Inc. or Katherine I. Ley $50.00 or any part of the earnest money deposit he was supposed to have made at the time of the Randall to Parsons sales contract.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission suspend the real estate salesman's license of respondent Charles Edward Parsons for 2 years or until he makes full restitution to K Realty of Tampa, Inc., whichever last occurs. RECOMMENDED this 1 day of October, 1984, in Tallahassee, Florida. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Charles Edward Parsons 409 Ash Avenue Bessemer, Alabama 35021 Harold Huff, Executive Director Real Estate Legal Services Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact At all times pertinent to the matters contained herein, Respondent was licensed as a professional land surveyor in Florida and held license No. LS 0002934. On October 9, 1984, the Petitioner, Board of Professional Land Surveyors, after an informal hearing at which Respondent was present, entered a Final Order finding that he had, in several instances in the practice of professional land surveying, failed to perform in accordance with the minimum technical standards for land surveying and ordered his license to be suspended for 6 months; that he pay a $500.00 fine within 30 days of the Order; and that he submit a series of surveys and field notes for the review of the Board over a period of time subsequent to the reinstatement of his license. Respondent contends he agreed to an informal hearing because of recommendations from a representative of the Department of Professional Regulation's, (DPR), local investigative office. However, he was present at the hearing, was afforded an opportunity to present matters in his behalf, and through counsel, filed an appeal to the 4th District Court of Appeals of the Final Order in question which appeal, he subsequently dismissed. Respondent failed to pay the $500.00 fine on time as required. He contends this was because he had appealed the Final Order and was only one month late. Respondent also failed to file the required sets of surveys after the reinstatement of his license. The first was 6 months late and he cannot give a reason for that other than he was in mild shock as he felt he was a victim of "judicial error." His attorney was appealing the Final Order and he didn't pay attention to the dates. The 4th set of surveys was due in February, 1987 and has not been submitted as of this date. He contends it was not his intention to drag his feet in these submissions. After receiving the reviewer's criticisms of his earlier submissions, he felt they were not in keeping with the minimum standards and he requested clarification. He claims this is the reason for the delay but this excuse is not persuasive. His comment that he failed to pay attention to the dates for compliance with the requirements of the Final Order seems to be somewhat indicative of his attitude toward the practice of land surveying as will be seen from the evidence as discussed below. Consistent with the Board's Order, however, Respondent submitted several surveys which were considered to be of poor quality. The first set was returned with numerous negative comments and the third set was returned for further preparation and correction to prevent "further disciplinary action." The second set was considered to be "in substantial compliance with the terms of the [Board's] Final Order." Specifically identified for comment were surveys done by the Respondent for Mark and Betty Sivik, Carolyn Riddle, Eugenio Gonzalez, Teresa and Dane Curry, and Silvia Garcia. As to the individual surveys, the following discrepancies were noted: Sivik field notes showed no measurements made by Respondent. field notes showed no angles turned by Respondent. field notes showed no relationship to fractional corners. Riddle field notes show no E-W measurement by Respondent. field notes show no angles turned by Respondent. no plat was submitted with the survey. Gonzalez field notes do not show complete measurements by Respondent. field notes do not show angles turned by Respondent. field notes do not show relationship to fractional corners. field notes show a fence on three sides but the survey does not. Curry field notes do not show angles turned by Respondent. there is a .9 foot discrepancy as to one line between field notes and the survey with no explanation. as a result of this it cannot be determined if the survey is accurate. Garcia measurements to corners shown in field notes are not shown on survey. Respondent did not submit a plat without which it cannot be determined if the survey is complete or accurate. (Without the appropriate field notes, there is no way to tell if the survey is accurate, complete, or in accord with the legal description of the property.) In respect to all of the above surveys, none states on its face the type of survey it is. Respondent contends, in this regard, that his use of the letters "P.L.S.", (Professional Land Surveyor) after his signature indicates all are land surveys. This is not sufficient identification since professional land surveyors do various different types of surveys including land surveys, topographical surveys, reestablishment surveys, and the like. Respondent takes exception to the Board reviewer's comments about and approach to his surveys. As to the issue of angles, he contends that the minimum standards applied by the Board require only that the minimum angles shall be listed and do not require that all angles be turned in the field. He contends that the angles in question were a matter of record in his office. Mr. Cole, the Boards expert, agrees, stating it is not necessary to turn every angle but enough should be turned to insure an accurate description of the property and to verify the actual angles. There are other ways of verifying angles than turning them, but in Respondent's field notes, there was insufficient evidence to show any type of verification of the angles done by others previously. As to the discrepancies between field measurements and the legal descriptions in some cases, Respondent nonetheless contends they are all within standards. Respondent's approach here is somewhat cavalier. Any discrepancies which exist must be shown. The purpose of a survey is to show the current status of the property and it is improper and ineffective to rely solely on the previous record. To list discrepancies does not clutter up the survey nor is it likely to confuse. A failure to show them could well create major problems for a future user of the survey. The .9 foot discrepancy, described by the Respondent as well within the 1:5,000 error standard, is incorrectly described. It is more like an error of 1:200 and is, therefore, not insignificant. It should have been commented on. The survey done for the Currys can readily be classified as a topographical survey as it describes elevation in at least two places. Therefore, it should have been identified as a topographical survey on the face of it, but this is a minor discrepancy. The fence running across the back of the Gonzalez property should have been identified as such by the use of appropriate x's on the survey. It was not. Respondent has been in the private practice of surveying since he passed the state examination in February, 1976. He feels that the Board's case is based on the use of a hypothetical survey to establish standards against which his work was compared. The minimum standards set out in the statute are what, he feels, should control as they speak for themselves. He has always tried, throughout his years in practice, to protect his clients, and to his knowledge, his work has never cause anyone to lose money. He defines precision as the way that a line or angle is measured and accuracy as the manner in which the finished drawing portrays that there are or are not problems in the subject of the survey. With regard to the attack on his field notes, Respondent contends that the minimum standards merely call for field notes. Their sufficiency is determined by the standards of the practice in the community. He believes his notes contain measurements, calculations and ancillary information sufficient to show the required identifying information. The laws that govern surveyors' performance require many factors to be considered such as encroachment, senior rights, acquiescence and adverse possession, and the Respondent urges that in the interest of simplicity for the benefit of the users of the survey, it is necessary to reduce the quantity of evidence on the survey to the minimum necessary to allow it to be used effectively, not for the convenience of the state examining board. If there are no problems, then there is nothing else to show and his backup office records are adequate. Though Respondent feels the Board's criticisms of his notes are irrelevant, the better weight of the evidence is that they are not. Though Respondent contends his work in all cases exceeds the requirement for error, (1:5,000; 1:7,500; and 1:10,000 as appropriate), the error in the Curry survey shows his possible lack of understanding of the rules. He considers himself to be a mixture of the textbook and practical surveyor applying his extensive practical field experience to the textbook requirements. The evidence indicates, however, he does not always do so with the required degree of accuracy and skill. Respondent agrees with the 20 minimum standards set out in Rule 21HH- 6.003. They relate to all surveys and, he believes, should be followed. They constitute the community standard and a failure to follow them would be a failure to follow the community standards. His quarrel is not with the rule but with the agency's interpretation and alleged expansion of its own rule.
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 be suspended for one year and that upon reinstatement his license be placed on probation for five years under such terms and conditions as imposed by the Board as will insure current and continuing review of his activities within the profession. RECOMMENDED this 24th day of August, 1987, 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 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. Petitioner's Proposed Findings of Fact (FOF). 1. Accepted in FOF 1. 2. Accepted in FOF 2. 3 - 7. Accepted in FOFs 2 and 4. 8. Accepted. 9 - 11. Incorporated in FOF 4. 12, 13. Accepted. 14, 15. Incorporated in FOF 4. 16. Incorporated in FOF 5. 17, 18. Accepted. 19, 20. Incorporated in FOF 5. 21 - 30. Incorporated in FOF 6. 31 - 33. Accepted. 34. Incorporated in FOF 7. 35 - 37. Incorporated in FOFs 8 and 9. 38, 39. Incorporated in FOF 16. 40. Redundant to Proposed FOF 2. COPIES FURNISHED: ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF LAND SURVEYORS 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 KENNETH O. HART 3198 RIDDLE ROAD WEST PALM BEACH, FLORIDA 33406 VAN POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DOAH CASE NO. 87-2158 vs. DPR CASE NO. 0078982 KENNETH O. HART, Respondent. /
Findings Of Fact The DCA Determination was issued by Respondent DCA on December 22, 2005. The DCA Determination included a "Notice of Rights" which stated that any substantially affected person may request a hearing from DOAH "within 21 days from the date of this determination." Twenty-one days from the date of the DCA Determination was January 12, 2006. In the original petition, it was alleged that Petitioners received notice by mail "on or about December 26, 2005." At the hearing, Petitioner Brown stated that she received a copy of the DCA Determination on December 24, 2005, two days after it was issued, but one of the Petitioners (apparently Leslie Pennell) received notice on December 27 or 28, 2006. Petitioner Brown read the Notice of Rights statement in the DCA Determination, but she thought it was inaccurate because she perceived it to be inconsistent with Sections 163.3213(5) and 120.569(1), Florida Statutes. She researched other statutes and rules to resolve this perceived inconsistency. Petitioner Brown's research led her to Florida Administrative Code Rule 28.106.111(2),2/ which states: "Unless otherwise provided by law, persons seeking a hearing on an agency decision . . . shall file a petition within 21 days of receipt of written notice of the decision." Petitioner Brown concluded that the petition could be filed 21 days from her receipt of written notice of the DCA Determination. On January 12, 2006, Petitioner Brown placed a telephone call to DOAH "to ensure that [she] was interpreting the rules correctly." She spoke to Robert Williams, deputy clerk of DOAH. She claims that Mr. Williams confirmed that the deadline for filing the petition was 21 days from her receipt of written notice, and she relied on Mr. Williams' statements in filing the petition on January 17, 2006. Twenty-one days from Petitioner Brown's receipt of notice was January 14, 2006, but that was a Saturday and the following Monday was a state holiday (Martin Luther King, Jr. Day), so she filed the petition on Tuesday, January 17, 2006. Mr. Williams had no recollection of having a telephone conversation with Petitioner Brown on January 12, 2006. Petitioner Brown produced her telephone bill for the month of January which indicates she made a five-minute call to DOAH on January 12, 2006. The telephone bill, of course, does not indicate who she talked to at DOAH. The first telephone conversation Mr. Williams can recall having with Petitioner Brown was during a call he initiated on January 17, 2006, to tell her she had filed the petition in the wrong place. Mr. Williams thought the petition should have been filed with the DCA. Mr. Williams testified that during his telephone conversation with Petitioner Brown on January 17, 2006, he went on the DOAH website and read some of "DOAH's rules" with her. He does not recall discussing the issue of her filing deadline. Mr. Williams stated that he never tells people when they must file a petition. When asked such a question, he always refers the person to the agency that issued the order. Mr. Williams expressed confidence that he never told Petitioner Brown when she had to file her petition with DOAH. Mr. William's testimony is credible and is consistent with the fact that, on January 12, 2006, he still thought any petition to challenge a decision made by the DCA had to be filed with the DCA, not with DOAH. Furthermore, it is unlikely that Mr. Williams would have forgotten a conversation with Petitioner Brown on January 12, 2006, if, on that date, he had deviated from his consistent practice not to tell people when their petitions must be filed. Petitioner Brown never described precisely the statements allegedly made by Mr. Williams on January 12, 2006, upon which she relied. His statements were simply characterized as having "confirmed" that the petition could be filed 21 days from Petitioners' receipt of notice. Petitioners did not allege or prove that Mr. Williams understood or addressed the specific procedural issue of whether the filing deadline indicated in Section 163.3213(5), Florida Statutes, and stated in the DCA Determination, was controlling, or, whether the filing deadline was governed by Rule 28-106.111(2). Because Petitioner Brown had already concluded that she could file the petition 21 days from her receipt of notice of the DCA determination, it is likely that she interpreted Mr. Williams' statements as confirming that conclusion, even though Mr. Williams did not understand the premises of her conclusion, did not intend to confirm her conclusion, and, in fact, did not confirm her conclusion. Petitioners did not allege there were circumstances that made filing their petition on January 12, 2006, impossible or unreasonably burdensome. Petitioners' decision to file their petition on January 17, 2006, was based on simple error and was not for the purpose of delaying the proceedings or to otherwise prejudice any party. The record contains no evidence that the untimely filing of the petition in this case has prejudiced Respondents.
The Issue At issue herein is whether or not Petitioner correctly responded to Case VI on Part II of the Land Surveyors Examination, and if so, whether he should have received a passing grade.
Findings Of Fact Based upon my observation of the Petitioner and his demeanor while testifying, depositions and other documentary evidence received, and the entire record compiled herein, the following relevant facts are found: Petitioner, Garland R. Hardwick, was a candidate for the Land Surveyors Examination administered October 29 and 30, 1901. Case VI, a legal description, constituted a portion of the examination given on October 30, 1981. (Testimony of Petitioner) Case VI required the examinee to prepare a legal description of the portion of a road right-of-way which cut across a lot within a platted subdivision for inclusion in a right-of-way deed. (Petitioner's Exhibit 2 and the deposition of David Gibson, page 8) The examinee was further asked to "calculate any quantities needed." The credit given for Case VI was 20 points. As drafted, Case VI called for certain calculations to be performed by the examinee. The type of calculations required depended on the description provided, i.e., metes and bounds or strip conveyances. A strip form of conveyance required description and calculation of the center line. (Gibson deposition, pages 11-12) A portion of the credit given on Case VI was for calculations. If a strip form description were used in Case VI, the minimum calculations required for credit were those of the arc length (center line) and the radius. If these minimum calculations were not performed by an examinee having prepared a strip form or center line description, no credit was given to the examinee. (Deposition of Gibson, pages 14-19) Petitioner's response to Case VI is a strip or center line description. Petitioner did not calculate or describe the distance along the arc of the center line, or the right-of-way as it cut across the lot in question. Petitioner therefore received no credit on Case VI for calculations. (Testimony of Petitioner [TR pp 6-8] and Petitioner's Exhibit No. 2) David Gibson, an examination consultant who was solely responsible for the drafting and grading of Case VI, gave his expert opinion that the required calculations of examinees preparing a strip, or center line description, were consistent with the standards of the profession. (Gibson deposition, page 16) PETITIONER'S POSITION During the hearing, Petitioner related that no calculations or descriptions of the distance along the arc of the center line for Case VI were needed, and in support thereof, referred to examples of strip descriptions filed within Report 4, Metes and Bounds Descriptions by Fant, Freeman and Madson, a book referred to on the suggested book list provided to examinees. petitioner cited Cases 33 and 37 within the above-referred text as being examples similar to Case VI on the examination. The sample description given in Case 33 provides calculations and distances along the center line of the right-of-way. (Testimony of Petitioner, TR pages 6, 8, 15-20, and Petitioner's Exhibit 3) Further, Petitioner points to the fact that in the event of a dispute the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way. Case 33 of the above referred reference book appeared similar to Case VI of the subject examination. (Testimony of Petitioner, TR p. 16) In that example, center line distances are calculated and "would enable the surveyor to locate this strip . . . help him maintain the identity of this parcel or strip." (Petitioner's testimony TR p. 17) Case number 35 and others referred to during the hearing by Petitioner (save Case 33) were, at best, limited in similarity and would not require a different result. (TR p. 20)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Board of Land Surveyors, enter a Final Order denying Petitioner's request and the relief sought to the effect that he be awarded a passing grade on the Land Surveyors Examination administered to him on October 29 and 30, 1981. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.
Findings Of Fact Purchase of the Subject Property. The property at issue in this proceeding consists of approximately fifty-two acres (hereinafter referred to as the "Subject Property"). The Subject Property was acquired by Charles L. Parham in 1988 from Forest Hills, Inc. The Subject Property is located in a rural, undeveloped portion of southern Clay County (hereinafter referred to as the "County"). The Subject Property was part of a larger tract of undeveloped, real property known as "Forest Hills." The southwestern corner of Forest Hills is bounded by State Road 100. At the time the Subject Property was purchased it was zoned Agriculture. This classification allowed use of the Subject Property for single-family residential development at a density of one unit per acre. The Subject Property was purchased by the Applicants for development as single-family sites which they intended to sell or rent and to use for their own residential purposes. Access to the Subject Property was obtained through easements (Forest Hills Road and Lone Pine Trail) from State Road 100. It is approximately one and three-quarters of a mile from State Road 100 to the Subject Property. At the time of purchase of the Subject Property by Mr. Parham, Mr. Parham was provided with a certified Boundary Survey map by Forest Hills, Inc. The Boundary Survey was certified by a land surveyor and was dated November 2, 1978. The Boundary Survey provided to Mr. Parham represented the Subject Property as consisting of forty-four tracts of approximately one acre each and four lots of approximately two acres each. Neither the Subject Property nor Forest Hills has ever been platted. That is, there is no plat of record in the Official Records of Clay County, Florida. The Applicants made the erroneous assumption that the Subject Property was platted. They made this assumption because of the Boundary Survey they were provided by Forest Hills, Inc., which depicted the division of the Subject Property into lots. The Applicants also believed that the Subject Property was platted because no one at County offices where they showed the Boundary Map told them differently. The evidence failed to prove, however, that any employee of the County told them that the Subject Property was in fact platted. The evidence also failed to prove that the County was responsible for the assumption of the Parhams that the Subject Property was platted. Development Activities on the Subject Property. The Applicants cleared and graded roads through the easements to the Subject Property. Applicants also maintained two other roads located in Forest Hills: Cactus Hill Road and Lone Pine Trail. The Applicants also cleared and graded two interior roads which dissect Forest Hills. Applicants named the interior roads "Viking Street" and "Valhalla Street". The clearing and grading of roads was performed by Applicants in order to gain access to the Subject Property for themselves and potential renters. The Applicants also cleared part of the Subject Property for their own use. Mr. Parham purchased a bulldozer prior to the purchase of the Subject Property. The bulldozer was purchased for use in developing the Subject Property for use by the Applicants as a residence, for use in developing the Subject Property for rental and for use in Mr. Parham's business. All labor in developing the roads to and on the Subject Property has been provided by Applicants. Expenses for maintenance, repair and use of the bulldozer were incurred by Applicants. Applicants purchased fill dirt and clay which was used in clearing and grading access and interior roads. Prior to the enactment of the Clay County 2001 Comprehensive Plan (hereinafter referred to as the "Plan"), Applicants sold two two-acre tracts to Inger Robertson and to Julian Wood. Although the deeds on the sale of these lots mentioned the tract numbers, they also described the property sold by metes and bounds. The property would not have been described in this manner if the property were part of a platted subdivision. Applicants were left with forty- eight tracts. Inger Robertson applied for and received a mobile home permit for her two-acre parcel in 1990. Applicants also applied for and received mobile home permits for two one-acre tracts. One mobile home was used as their residence. The three mobile home permits issued for part of the Subject Property were issued prior to enactment of the Plan. They were also issued consistent with then existing law allowing single family units on one acre parcels. Petitioners' Alleged Detrimental Reliance. At the time the Applicants obtained their two permits, the Boundary Survey showing the lot division of the Subject Property was shown to County staff and the Applicants' plans with regard to development of the Subject Property were disclosed. At the time of the acquisition of the permits from the County, the Applicants' intended use of, and development plans for, the Subject Property were consistent with County laws. No approval or other permits were required by County law in order for the Applicants to utilize and develope the Subject Property in the manner they intended. They were only required to comply with existing zoning requirements, which restricted residential use of property to one residence per acre. This the Applicants did with regard to their residence and two other tracts. They failed to obtain permits, however, for the other tracts on the Subject Property. The evidence failed to prove that the Applicants' were informed by the County that their proposed use and development of the Subject Property was "approved" or otherwise "authorized." The Applicants have not asserted that the County took any affirmative action which led them to believe that their planned development of the Subject Property was "approved". Instead, the Applicants have asserted that the County was under an obligation to tell them that the Subject Property was not, in fact, platted, and they were required to take certain actions to insure that they could develop the Subject Property as planned. The evidence failed to prove that the County was under any such obligation. The evidence also failed to prove that the Applicants asked County staff what steps they were required to take in order to insure the immediate development of the Subject Property. In 1988, the Applicants informed the County of the naming of the two roads created on the Subject Property and were given street addresses for each of the tracts identified on the Boundary Survey. The Boundary Survey was left with County staff to make a copy of for the County's records. Each of the tracts was identified for the County's 911 emergency telephone service. The assignment of names to the interior streets and street numbers to the lots was consistent with then existing law. These County actions are not the type of actions which would justify a conclusion that density limitations with regard to the Subject Property would not change. Rights That Allegedly Will Be Destroyed. On January 23, 1992, the County's Board of County Commissioners adopted the Plan. Included in the Plan is a Future Land Use Element, including Future Land Use Maps (hereinafter referred to as the "FLUM"). The Subject Property (and all of Forest Hills) is located in an area classified on the FLUM for "Agriculture/Residential Land Use". This designation allows the use of the Subject Property for single-family residential development. Density, however, is limited to one unit per ten acres. As a result of the Plan and the designated land use classification of the Subject Property, the Subject Property may not be developed as one-acre single-family residences. The result of this restricted land use, the number of individual, developable lots on the Subject Property has been reduced. This reduction in developable lots adversely impacts financing of the Subject Property. The Applicants learned of the adoption of the Plan and its impact on the Subject Property in November of 1992 when they attempted to obtain additional permits for the Subject Property.
The Issue Whether or not Respondent has violated Sections 472.033(1)(a), and (h), and 455.227(1)(b), Florida Statutes, and Rules 21HH-2.001(3) and 21HH-6.003, Florida Administrative Code, by failure to comply with a valid Final Order of the Board of Professional Land Surveyors.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Board of Professional Land Surveyors, with the responsibility to prosecute administrative complaints pursuant to Chapters 455 and 472, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to the Amended Administrative Complaint, Respondent Bertin C. Tash was licensed as a professional land surveyor in the State of Florida, holding license number LS 0002292. By Final Order entered December 31, 1985, the Board of Professional Land Surveyors issued a Final Order in case number 0049353 (previously DOAH Case No. 85-0285), a prior disciplinary action against Respondent. Among other terms of that Final Order, Respondent was placed on probation for twenty-seven months and further was required during the course of that twenty-seven month probation to: ... submit 25 surveys representative of his land surveying practice which shall be accompanied by field notes and record plats to the board for its review. Additional information regarding the surveys may be requested. Five surveys shall be submitted within three months from the filing of this final order; thereafter, five surveys shall be submitted at six month intervals during the period of probation. Respondent shall attend the first available continuing education seminar in his area on the minimum technical standards within 12 months from the filing of this order or as soon after as possible. Evidence of Respondent's attendance and successful completion of the course shall be furnished to the board through the proctor or instructor of the continuing education course... (Emphasis supplied.) It is noted that although the "certificate of service" for the copy of the Final Order admitted in evidence as part of Petitioner's Exhibit 3 is unsigned, Respondent admitted receipt thereof, that no appeal was taken therefrom, and that he understood the terms of the Final Order. Twenty-seven months from December 31, 1985 would fall on April 1, 1987. Twelve months from December 31, 1985 would fall on January 2, 1986. Respondent initially complied with the Final Order by submitting two sets of five surveys, the second in December, 1986. However, some type of dispute arose between Respondent and the Board's monitor of Respondent's probation about whether the monitor could require corrections to be done by Respondent to those surveys already submitted and about whether or not Respondent could be required to submit his field notes for the surveys. Respondent seems to have resisted the clear language of the Final Order (see emphasized language in Finding of Fact No. 4, supra) upon a personal belief that these requirements were unconstitutional, invaded his privacy, or exposed him to ethical charges by his clients. There is nothing in the record, to support this ideation of Respondent, and eventually, Respondent altered his position. Respondent did not submit any further surveys until November, 1988 after the instant case was already in progress, at which time he had modified some of his views with regard to field notes. He then attempted to comply with the Final Order by submitting corrected surveys. However, in error, he sent these surveys not to the Board, but to the attorney for the Department of Professional Regulation where they were retained. This submittal was considerably beyond the April 1, 1987 probationary period and whether considered corrections of the second five surveys or an additional five surveys would not constitute the twenty-five surveys required by the prior Final Order. The Respondent failed to complete a seminar on minimum technical standards between the entry of the Final Order on December 31, 1985 and the date of formal hearing on December 14, 1988. Petitioner submitted proof that such courses were available in West Palm Beach, Respondent's hometown, on May 20, 1987, and in adjoining Broward County on May 21, 1988. Clearly, neither of these courses was available to Respondent during the probationary time frames set out in the Final Order and Findings of Fact Nos. 4 and 5 supra. Petitioner submitted no proof of the availability of other such courses during the appropriate time frames, but it appears undisputed that these were the only qualifying courses "in his area" and that the Board would have accepted Respondent's late completion of either course as his compliance with the continuing education requirement in the Final Order. The Board even went so far as to reserve space for Respondent at the May 21, 1988 course in Broward County. Respondent's testimony that he was too ill to attend the May 30, 1987 course is unrefuted. Respondent's testimony that he had, no private means of transportation to the May 21, 1988 course is also unrefuted but he did not show unavailability of public transportation. Moreover, Respondent testified that until the date of formal hearing, he had resisted, upon grounds of his personal ethical ideation, the concept of learning from, or submitting himself to critiques by, any local professionals who conducted continuing education seminars in land surveying.
Recommendation That the Board of Professional Land Surveyors enter a Final Order finding Respondent guilty of two counts of violating Section 472.003(1)(h) Florida Statutes, and imposing a three-month suspension of Respondent's license, subject to an extension of such suspension to a maximum of one year or until Respondent completes the continuing education course required by the prior Final Order, whichever comes first, and imposing thereafter three years' probation to follow immediately upon the lifting of the suspension, during which three years' probation Respondent shall be required to submit an appropriate number of surveys to be determined by the Board for review by the Board. DONE and ENTERED this 13th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3108 The following constitute specific rulings upon the parties' respective Proposed Findings of Fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. Petitioner's PFOF: 1-5 are all accepted. Respondent's PFOF: PFOF 1 discusses the nature of several exhibits and objections ruled upon in the course of formal hearing, does not constitute a relevant or material proposed fact and is not dispositive of any issue at bar. The same subjects are addressed within the RO at FOF 3-4 and 8 to the degree they impinge on this proceeding. PFOF 2 is rejected in part and accepted in part in FOF 8 to the degree it comports with the greater weight of the credible record evidence as a whole. PFOF 3 is accepted in part in FOF 6. The remainder of the proposal is rejected as irrelevant, immaterial, and not comporting with the greater weight of the credible record evidence as a whole. PFOF 4,5,7 and 8 are rejected as mere argument of position or legal argument. PFOF 6 is accepted in part in FOF 7. The remainder of the proposal is rejected as immaterial or mere argument of position or legal argument. COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bertin C. Tash 5100 Spruce Avenue West Palm Beach, Florida 33407-2846 Allen Smith, Jr. Executive Director Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32299-0750 =================================================================
