Findings Of Fact The Petitioner, Robert William Morgan, applied for a land surveyor's license pursuant to Chapter 472, Florida Statutes. He qualified for and passed the first part of the exam on April 9 and 10, 1981, took the second part of the written examination administered by the Board of Land Surveyors of the Florida Department of Professional Regulation (Respondent). Mr. Morgan was notified that he had failed to pass the second part of the examination by the Respondent by notice dated July 17, 1981. He requested a review of his examination by the Board and filed written objections. On September 3, 1981 he was informed by the Respondent that his protest was denied and his failing grade on the examination would stand. On October 1, 1981, the Petitioner made a timely petition to contest the Board's denial of his application for licensure pursuant to Section 120.57(1) , Florida Statutes. There is no dispute that the only obstacle to the Petitioner's licensure in the eyes of the Board is that he made a score of 66 percent on the examination when 70 percent is required for passing. The rules cited below set forth the subject matter of the examination as well as the guidelines for preparing, administering and grading it. The Rules provide that the examination will consist of two parts which shall be prepared by the National Council of Engineering Examiners and, in part, by a consultant or testing service employed by the Department of Professional Regulation. The second part of the examination is the sole portion in dispute in this proceeding. Pursuant to the Rules cited below, the examination is designed to test an applicant's knowledge in land boundary plot problems (either metes and bounds or lot and block types), general surveying computations, trigonometry, curves, intersections (areas) legal responsibilities in professional practice, writing land or legal descriptions, construction or topographic surveying, specialty problems involving water boundary surveys, error theory and condominium surveys. The content of part two of the examination generally involves six (6) to eight (8) problems drawn from those areas, each of which problems will normally generate between five (5) to fifteen (15) multiple choice questions, each of which receive 2 points of credit when completed correctly. Part two of the examination, according to the Rule, is not to be machine graded and grades for part two of the examination must be based upon the application of "good land surveying judgment and a selection and evaluation of pertinent information with the demonstration of ability to make reasonable assumptions when necessary". The Rules require that the applicant must choose the multiple choice answer for a question on part two that is most nearly correct, further he is to be given space on his examination sheet to outline his reasons, methods and references by which the graders may determine his land surveying judgment which went into his answer. In the absence of such an outline, in explanation of an answer, even though the preliminary answer is marked correct, it is not to be given credit. Further, it has long been the Board's policy (expressed in the Rules) that if an outline or explanation of reasons for an answer is judged by the Board's testing service as adequate according to fundamental land surveying principles then credit will be given for the entire question pair "if the correct answer is close. . ." The second part of the examination, in dispute herein, was formulated and administered by Mr. Dave Gibson of the University of Florida School of Engineering who prepared the multiple choice examination to be machine scored in its entirety. No space was provided on the examination sheet for the applicant to outline his reasons or his methods and references in arriving at his solution so that the examining graders could determine his land surveying judgment underlying his answers to the multiple choice questions. The applicant, instead, was required by the format of the examination prepared by Mr. Gibson, and the instructions given by the Board, to choose the most nearly correct answer from a series of multiple choice answers on a machine scored answer sheet (emphasis supplied). The applicant was thus forced to select a single reason for his answer to the immediately preceding multiple choice question in each pair without having a blank space in order to outline the reasons for his answer. The choices were adequate for the applicant to express his reasons for his answers in some cases and in some cases they were not. In grading of the examination, credit was only given for the most nearly correct answer instead of an "adequate outline". Thus, where there was more than one acceptable method or reason for an answer to a specific question, the Board only gave credit for the one its consultant considered most nearly correct, even though another answer in a number of instances could have been correct by the Board's own admission. Indeed, the Board admitted that where there was more than one correct answer to a question, the standard policy of the Board had been to give credit for both answers. The parties are in agreement that the only questions in dispute are questions 13 and 14, 31 and 32, and 45 and 46, passage of all of which would give him a total score of 72 percent instead of 66 percent. These questions are arranged in pairs, 13 is the preliminary question and answer with 14 being the answer to be supplied in explanation to the answer to question 13 (no space being given, as formerly by the Board, to write an explanation). The same paired relationship is true of questions 31 and 32, with 32 providing the explanatory answer and question 46 containing the explanatory answer for question 45. The second part of the exam in question, consisted of forty (40) multiple choice questions followed by forty (40) multiple choice reasons, methods or references for the answer to the questions, as well as an essay question worth twenty (20) points. The odd numbers on the machine scored answer sheet for part two of the exam are the questions and the even numbers are the methods or reasons for the answers to the odd-numbered questions. The parties do not dispute that Mr. Morgan received 54 points on the multiple choice questions and 12 points on the essay question for a total of 66 percent on the examination. It must be remembered, however, that in order to get credit for a correct answer an "adequate outline" of the reason for the answer must be given as the second answer in the pair. It is also undisputed that Mr. Morgan correctly answered questions 13, 31 and 46 of the three pairs, but was not given credit for these answers at all because of his answers to questions 14, 32 and 45 were not in the view of the Board the "most nearly correct answers for 14 and 31" or as "equally correct as other answers" for question 45. Mr. Gibson, the Board's consultant who administered and graded the examination, did not give credit for an "adequate explanatory answer or outline". In some instances, however, more than one answer was accepted as correct, after Mr. Gibson and the Board determined that the examination should be "re-keyed", because of sixteen (16) questions on part two which the Board felt were ambiguous and could be correctly answered in more than one way. Question 13 on the examination was one of a series of questions testing the applicant's knowledge of topography and grading of land. It reads as follows: 13. If a lath were placed at the cul-de-sac center on road A, how far above the existing ground should a mark be placed on the lath that reads, 'cut three feet', most nearly. The elevation of the existing ground was determined from other parts of the examination. The notes on Mr. Morgan's examination reflect that he correctly calculated this to be eighty-six (86) feet. He also correctly answered question 13 by selecting choice B or "two feet". Solution number 14, the reason, method or reference for question 13, then states: This is the usual amount for most of Florida. By subtracting the elevation of the mark from the proposed pavement elevation. By subtracting the elevations of the mark from the existing ground elevation. Of those three choices, A, B and C, Mr. Morgan picked choice B as his reason for his answer to question 13. Mr. Gibson felt that the correct answer should be choice C in solution 14. The Board's witnesses admitted that the determination of the answer to question 13 was a two step process. The elevation of the mark on the stake must be determined from the proposed grade elevation within the meaning of the term "cut three" on the stake. Once the elevation of the mark is calculated, the height of the mark above existing ground elevation could be determined by calculating the difference between the elevations of the existing ground and the mark on the grade stake. If the elevation of the mark, which is eighty-eight feet, is subtracted from the elevation of the existing ground as directed in choice C of solution 14, the result is minus 2. The mark cannot logically be minus 2 feet above the existing ground on a grade stake as described in the question. Further, minus 2 was not even one of the choices for an answer to question 13. The correct and acceptable answer under the Board's "key" was 2 or plus 2 feet as Mr. Morgan correctly marked on his answer sheet. If one applies the "most nearly correct rule" to the answers in a mathematical sense, the most nearly correct answer would have been zero for question 13 using choice C as the answer for 14. This is obviously not the most logical and correct answer. Choice A for question 14 in explanation of the answer for 13 is admittedly a "detractor" type choice and not worthy of serious consideration. Choice B is an expression of the meaning of "cut three" and is the key to solving the problem stated in question 13, that is, the elevation of the existing grade, 85 feet, minus the elevation of the mark equals minus 3, which is directly symbolic of the surveyors term "cut three". Until this relationship is known, the elevation of the mark cannot be determined from the information given and therefore without knowing the elevation of the mark, the height of the mark above existing ground cannot be determined. Thus, choice C is an expression of the first step to a two-step process required to arrive at the correct answer to question 13. It is not the final step in explanation of the answer for question 13, but it must be found to be an "adequate reason", since the only other alternatives offered the examinee require him to disregard elementary mathematical principles, such as subtraction, which he is charged with applying in solving the examination. Thus, choice 14-B is the correct explanation for the answer to question 13 since it correctly expresses the initial part of the two-part process required to arrive at the correct answer to question 13 and since the other two choices A and C are either illogical or do not comport with applicable mathematical principles such as subtraction. Question 31 reads as follows: Concerning Palm Avenue about the 1955 MHW line, which statement is most nearly correct? The original developer is fee owner subject to public easement. The public is the complete owner subject to easements for the subdivision lot owners. Each lot owner owns fee title to the street center line subject to a public easement. State of Florida holds fee title subject to a public easement. The public is the complete owner subject to no easement. Mr. Morgan selected choice C for his answer, which is agreed to be the correct answer. Question 32 reads: Reason for Response given in question 31 Public only receive an easement from the developer. The public received complete title from the developer. Riparian rights. Deed for lots presumes grant to center of adjoining street. The lack of improving the street gives the fee title to the state. Mr. Morgan selected choice D as his answer for question 32, the Board did not give him credit for this answer because it felt the reason he gave was not the most nearly correct. As admitted by the Board's consultant, Mr. Gibson, the object of question 31 was to test the applicant's knowledge of legal principles pertaining to street or subdivision plats. Specifically, it required the applicant to state the title for that portion of the street above the mean high water mark, given the facts presented to him in the problem. Mr. Gibson also admitted that the applicant was expected to apply the substantive law of Florida as its existed at the time the applicant took the exam in April of 1981. He also admitted that the correct answer for the state of the title for question 31 contained two parts: an easement held by the public; and the underlying fee title held by the abutting lot owners. Both Witnesses Gibson and Davis admitted that the two best explanations contained in question 32, A and D, each only explain one part of the state of the title of the property involved. Response A only explains the easement portion of the title and response D explains the state of the fee title. These two witnesses conceded that Mr. Morgan's choice for question 32, response D, was a correct answer. Although they maintained they did not consider it the best answer, they failed to establish that response A is an any more correct or complete statement of title in explaining that an easement goes to the public for use of the street than is the explanation in the Petitioner's answer D, which states that the deed for the lots presumes a grant of the fee title to the center of the street. The Respondent's answer obviously is "adequate" if it is one of two possible correct answers. The Petitioner should thus get credit for his answers to questions 13 and 14 and questions 31 and 32. His reasons given for his obviously correct answers to the first questions in the two pairs are clearly adequate, which would have been obvious to the Board had it afforded him the hitherto provided space on his answer sheet to explain the answers to the first question in each pair. The final pair of answers in dispute are those for questions 45 and Question 45 reads: At what point of construction should the measurements be made for the surveyor's certificate required for a condominium? After the architect's plans are prepared but before construction starts. After the piling and footers are placed but before construction of the buildings. After the columns and floors are completed but before framing of the units. After framing of the units but before the walls are finished. After the interior walls are finished. Mr. Morgan chose response A. One of the requirements of applicants for licensure and examinees is that they be knowledgeable of substantive Florida Law pertaining to the profession of land surveying. Chapter 718, Florida Statutes, pertaining to land surveying, provides for two certifications which a surveyor is called upon to make during the course of development and construction of a condominium. One of these is the certificate which should be issued by the surveyor after construction is substantially complete. Accordingly, with that in mind, the Board maintained that the Petitioner should have answered "E" to question 45 which reads "after the interior walls are finished", as being the time at which the surveyor's certificate should be issued. The other surveyor's certificate required in the course of the development of a condominium, must be prepared much earlier as one of the documents that a developer must file with the Division of Land Sales and Condominiums when he wants to offer sales contracts and take advance subscription agreements for condominium reservation deposits. The developer cannot take a reservation or deposit until he files a surveyor's certificate filed with the Division. The Petitioner chose response A because of his knowledge of this last-described surveyor s certificate. The author of the examination, Witness Gibson, admitted that when he prepared the examination he was not aware of this other certificate required of surveyors when dealing with condominium developments. His question, therefore, did not specify which certificate was required for a correct response to the question. It was finally admitted that Mr. Morgan's choice, response A, was one of two correct answers to question 45 given the requirements of Chapter 718, Florida Statutes, which he is charged with knowledge of as a candidate for licensure. The Respondent acknowledged that historically it has been the Board's policy to give credit for a question where there is more than one correct answer to that question. If an answer is correct for any reasonable reading of the question to which it applies, then it is just as correct as any other answer. Accordingly, the Petitioner should be given credit for a correct answer to question 45. The Respondent admitted that the Petitioner correctly answered question 46, thus he should be given total credit for both questions 45 and 46.
Recommendation Having considered the above findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Professional Regulation, Board of Land Surveyors awarding Robert William Morgan a passing score of seventy-two percent (72 percent) on part two of the land surveyor's examination administered April 9 and 10, 1981 and therefore, it being agreed that no other impediment to licensure is extant, that the Board grant him licensure as a land surveyor. DONE and ENTERED this 2nd day of June, 1982 at Tallahassee, Florida. P. MICHAEL RUFF, 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 2nd day of June, 1982. COPIES FURNISHED: Ken Davis, Esquire DAVIS, JUDKINS & SIMPSON Post Office Box 1368 Tallahassee, Florida 32302 Susan Tully, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION ROBERT MORGAN, Petitioner, vs. CASE NO.: 81-2502 STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF LAND SURVEYORS, Respondent. /
The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2015.
Findings Of Fact At all times relevant hereto, respondent, Bertin C. Tash, held land surveyor license number LS0002292 issued by petitioner, Department of Professional Regulation, Board of Professional Land Surveyors. Respondent currently resides at 1127 Broadway, Riviera Beach, Florida. Tash has held a license with the state since July 2, 1970, and has been in the surveying profession for some twenty-eight years. On or about November 11, 1983, respondent was contacted by a local mortgage broker and requested to perform a survey on a residence located at 2814 Saginaw Avenue, West Palm Beach, Florida. A survey was needed since the owner of the residence intended to refinance his property. Tash performed the survey, turned the same over to the broker, and was paid $125 for his services. The drawing was signed and sealed by Tash, and contained the following notation above the certification: "No Corner's Set-All Rights Reserved." There was no mention as to whether the minimum technical standards had been met. On at least three places on the document, Tash referred to the drawing as a "survey." On June 7, 1984, Craig L. Wallace, a land surveyor in Lake Park, Florida, sent a copy of Tash's drawing to the Board's Executive Director and asked if the notation above the certification was permissible, and whether Tash's failure to refer to minimum technical standards was correct. This inquiry prompted the instant proceeding and resulted in the issuance of an administrative complaint. It is undisputed that the document prepared by respondent is a survey and subject to the minimum technical standards set forth in Chapter 21HH-6, Florida Administrative Code. Expert testimony by witness George M. Cole, Jr. Established that the drawing did not conform with the minimum technical standards in various respects. It did not contain a certification that the minimum technical standards had been met or a description of the type of survey being depicted. It did not reflect the measured distance to the nearest intersection of a street or right-of-way nor did it depict the entire lot being surveyed. Additionally, only one angle was shown on the drawing although agency rules require that all angles and bearings be shown. Finally, there was no boundary monument set as required by the standards. These are required unless monuments already exist at such corners. Although Tash pointed out that fence posts embedded in concrete were already on the corners of the property, agency rules still require that alternative monumentation be set. All of the foregoing deficiencies are violations of the minimum technical standards required for surveys. However, none were intentionally violated. Respondent readily acknowledged that he performed the survey in question. However, he considered the survey to be "minor" since two had previously been performed on the same lot, and his was only for the purpose of refinancing the property. He attributed any deficiencies to poor judgment rather than an intentional violation of the law. Tash has been a professional land surveyor for some twenty-eight years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion. The complaint herein was initiated by another licensed surveyor and not by the consumer who used the survey. The survey was apparently satisfactory as far as the mortgage broker was concerned, and no problems arose at closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law portion of this order. The remaining charges be DISMISSED. Respondent's license should be placed on probation for ninety days and he should be required to pay a $500 administrative fine. DONE and ORDERED this 18th day of September, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1985.
The Issue The issue is whether the Respondents are subject to discipline for offering and selling lots in a subdivision. The Department contends that the Respondents were required to obtain an order of registration before selling land, and to comply with other requirements with respect to their sales practices. The Respondents contend they are exempt from the registration and other regulatory requirements.
Findings Of Fact The Division is the state agency responsible for the enforcement of the Florida Uniform Land Sales Practices Act, Chapter 498, Florida Statutes. Orlando East Corporation is a Florida corporation formed in 1980 by Robert J. Loughlin which engages in the business of selling unimproved real estate in the State of Florida. It is not a government agency. Robert J. Loughlin is the President and sole shareholder of Orlando East Corporation. Between 1980 and 1986 the corporation acquired title to approximately 97 lots in the Partin Park Subdivision, a plated subdivision which contains 768 lots located in Orange County, Florida. The plat is recorded in Plat Book N at page 67 in Public Records of Orange County. The subdivision was originally approved by the Board of County Commissioners of Orange County, on February 9, 1926. On April 15, 1980, Orlando East purchased lots 1-24 and 25A in block 5 of the subdivision and lots 24-48 in block 14; on December 5, 1985, the corporation purchased lots 1-24 in block 8 of the subdivision; on June 27, 1986, the corporation purchased lots 25-48 of block 8 of the subdivision. Obviously, Orlando East Corporation is not the original subdivider of Partin Park. The Respondents have offered for sale, and sold 60 of the lots they had purchased in Partin Park by conveying 3-lot parcels in 20 sales transactions. Some of the parcels were sold by agreements for deed (nine sales), or by warranty deed or exchange agreements (11 sales). The relevant documents were executed by Mr. Loughlin on behalf of the corporation. All sales took place before February 16, 1987. One of the purchasers under an agreement for deed was Shirley Katonka. Mr. Loughlin solicited purchasers for the parcels owned by Orlando East through long distance telephone calls to out-of-state purchasers. The Respondents have not obtained an Order Of Registration to sell the lots under Sections 498.005(12), and 498.029, Florida Statutes. Neither do the Respondents have a current Public Offering Statement approved by the Division for the lots offered for sale or sold in the Part in Park subdivision. None of the land conveyed by Orlando East Corporation in the subdivision was sold as part of a reservation program approved by the Division under Section 498.024, Florida Statutes. None of the lots were re-platted after Respondents purchased them. The lots were not offered for sale as cemetery lots. The offer to sell parcels in Partin Park subdivision was not registered with the Florida Department of Banking and Finance, Division of Securities, nor with the United States Securities and Exchange Commission. The sales of each 3 lot parcel in the subdivision were for $5,000 or less. The parcels were sold without any residential or commercial buildings located on them and without the obligation of Orlando East Corporation or Mr. Loughlin to construct residential or commercial buildings on them for the purchasers. The Division had not granted an order exempting Part in Park subdivision from the registration requirements of Chapter 498 Florida Statutes, before any of the 20 sales were made by the Respondents. None of the 20 purchasers the Respondents solicited for sales received a synopsis, which had been approved by the Division, of the sales script used in conjunction with the long distance telephone solicitations. The original plan Orlando East Corporation and Mr. Loughlin had for the distribution of the lots was to sell all lots to fewer than 45 persons. This was accomplished by grouping the lots into parcels of 3-lot units. There were no covenants, declarations, or legal restrictions on the property which prohibited Orlando East Corporation from disposing of the property as individual lots. One of the reasons lots were sold in 3-lot units was to provide a purchaser a large enough piece of property so that the owner might be able to build a house on it, after obtaining a variance from the local government. The property was not sold as a home-site subdivision, however. The individual lots as plated measured 25' x 140', but the 3-lot units meet the county requirements that building lots have 75 feet of frontage and a minimum of 10,000 square feet. Of the eleven agreements for deed, eight of the original purchasers are making payments on their lots. Ms. Shirley Katonka cancelled her purchase several years ago. The Respondents are receiving a gross income of $750 per month for the eight active agreements for deed. The monthly expenses of operation for the Respondents' business is between $300 and $350 per month, leaving the Respondents a net profit of between $400 and $450 per month for the eight active contracts, assuming the purchasers continue to pay under their agreements for deed. Orlando East Corporation currently has $450 in the bank. Respondents are not offering or selling lots now, but are awaiting the outcome of this proceeding. There is no evidence that the Respondents have been selling lots in Partin Park under a common promotional plan with any other person or entity, and the Division does not contend that they are involved in a common promotional plan with any other person or entity. The Respondents argue that their subjective plan of disposition for their 97 lots is determinative of whether they are entitled to an exemption from the registration requirements of Section 498.025(1)(d), Florida Statutes. They contend that their plan of distribution would have provided for no more than 32 sales.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents to be subject to Chapter 498, to have violated Section 498.051(1)(a) and (d), fining them $1,000 each, and requiring them to give purchasers the opportunity to rescind their purchases under Sections 498.023(2)(c) and 498.051(3)(a), Florida Statutes. DONE and ENTERED this 24th day of January, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 90-1904 and 90-2515 Rulings on findings proposed by the Department: Adopted in Finding 2. Adopted in Finding 2. Implicit in Finding 3. 4 - 7. Adopted in Finding 3. To the extent necessary, adopted in Finding 2. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 4. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 2. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9, but amended to reflect the figure of $5,000. 18 and 19. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Adopted in Finding 16. Rejected as argument. Rulings on findings proposed by the Respondent: Adopted in Finding 1. Adopted in Finding 2. Adopted in Findings 2 and 3. Rejected as unnecessary. Rejected as unnecessary. Rejected as a conclusion of law. Adopted in Finding 4. Adopted in Findings 4 and 5. Rejected as unnecessary, but implicit in Finding 4. Rejected as unnecessary. Only the conduct of the Respondent is at issue here. Implicit in Finding 12. Implicit in Finding 12, although there is no legal impediment to selling individual lots. Adopted in Finding 12, except for the final sentence which is rejected as unnecessary. Adopted in Finding 12. Implicit in Finding 12. Sentence one adopted in Finding 4, the remainder rejected as a conclusion of law. Adopted in Finding 7. Adopted in Finding 13. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 15. Rejected as irrelevant. Adopted in Finding 6. Adopted in Finding 6. Adopted in Finding 16. 28 - 30. Rejected as unnecessary, because the Division's policy is derived from the language of the act and is consistent with the decision in Associated Mortgage Investors v. Department of Business Regulation, 503 So.2d 379 (Fla. 1st DCA 1987). COPIES FURNISHED: Calvin L. Johnson, Esquire Assistant General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Matthew Carter, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Janet E. Ferris, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue Eleven separate petitions were filed pursuant to section 120.535, F.S. alleging various non-rule policies of the Board of Professional Land Surveyors and requesting that those alleged policies be adopted by rule. The threshold issue in these cases is whether such policies exist; if so, it must be determined whether they are rules, as defined in section 120.52(16), and whether rulemaking is feasible and practicable, as provided in section 120.535(1), F.S. CASES NUMBER 94-0609RX - 94-0616RX The eight petitions in these consolidated cases are challenges to specific provisions within Chapter 61G17-6, F.A.C. (formerly 21HH-6, F.A.C.), "Minimum Technical Standards", relating to the practice of land surveying, adopted by the Board of Professional Land Surveyors. The issue in these cases is whether those specific provisions are invalid exercises of delegated legislative authority, as alleged by Petitioner. CASE NUMBER 94-0925F In this case, Respondent seeks attorney's fees and costs from counsel for Petitioner pursuant to section 120.57(1)(b)5., F.S. The issue, therefore, is whether an award under that section is appropriate. OTHER ISSUES Respondent does not dispute the standing of Petitioner in the sections 120.535 and 120.56, F.S. cases. Petitioner, in his proposed order, argues that he, not Respondent, is entitled to fees and costs. Petitioner also argues that his subpoena were properly served by mail on various board members. Those two issues are thus addressed in this order.
Findings Of Fact Gary A. Burden (Burden) is a professional land surveyor registered in the state of Florida pursuant to Chapter 472, F.S. The parties have stipulated that he is substantially affected by the rules of the Board of Professional Land Surveyors (Board). On June 22, 1993, the Department of Professional Regulation (now, Department of Business and Professional Regulation, DBPR) issued an administrative complaint alleging that Burden failed to follow minimum technical standards for land surveying in a boundary survey he performed for Lot 33, Lafayette Forest, in Seminole County, Florida. The complaint alleged seven specific deficiencies and cited the Board rule which applies to each. (Petitioner's exhibit Number 9) The seven specific violations are identified in a consultant's report dated April 1, 1993, from Dianne Jones, PLS, to the Board. (Petitioner's Number 10) Burden requested a formal hearing on the complaint and the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH Case Number 93-6433. On February 14, 1994, Hearing Officer, Ella Jane P. Davis issued an order on all motions pending as of that date. The order includes these pertinent provisions describing discussions at a January 20, 1994, conference call between the hearing officer and counsel for the parties: The undersigned also advised the parties that the instant Section 120.57(1), F.S. proceeding was not the appropriate vehicle to raise what appeared to be challenges in existing rules named in Respondent's affirmative defenses and that challenges to existing rules can only be initiated pursuant to Section 120.56, F.S. Further, the parties were informed that challenges to existing rules could not and would not be resolved by the Recommended Order to be entered in the instant Section 120.57(1), F.S. license disciplining proceeding. After hearing oral argument, the undersigned further requested that the parties file their respective memoranda as to whether the instant case had any Section 120.535, F.S. ramifications. Shortly after the January 20th telephone conference, Gary Burden, through counsel, filed the nineteen petitions that are the subject of this proceeding. The eleven petitions filed pursuant to section 120.535, F.S. request that these alleged policies of the Board be promulgated as formal rules: The Board's refusal to allow land surveyor registrants to incorporate other recorded instruments into their drawings by reference; The Board's determination of what constitutes "substantial compliance" to the minimum technical standards; The Board's application of a "substantial compliance" standard to probationary registrants, but a "strict compliance" standard to accused registrants. The Board's assessment of a single penalty, no matter how major or minor the offense; The Board's refusal to utilize the simple citation rule found at rule 61G17-9.004, F.A.C. (providing for disciplinary citation and fine); The Board's refusal to allow its registrants to mitigate damage to the public. The Board's equating the determination of boundaries to real property to the words contained in recorded deeds and plats; The Board's equating the standards of practice for "corners" with the standards of practice for "monuments". The Board's need to define the meaning of the term, "fixed improvements"; The Board's requirement that lot and block numbers be shown on a survey drawing in a specific location; and The Board's requirement that registrants measure distances and directions to "reference points". Burden did not testify at hearing, nor did he appear in person at the hearing. His single witness, Benjamin Paul Blackburn, has been registered as a land surveyor since 1969. Blackburn has been before the Board once on allegations of minimum technical standard violations, and the charges were dismissed; he has attended two Board meetings in the last year, and attended once in 1981 when the Board was promulgating rules. He has been an active member of the state professional association and was president of the association in the past. Blackburn was an articulate and sincere witness; however, he has no competent knowledge of the policies of the Board. His information comes from talking with other surveyors and from attending training seminars sponsored by the association. He freely admits that he has no direct knowledge of many of the policies alleged by Burden; in some instances his understanding of the Board's policy is contrary to that alleged by Burden. For example, Blackburn believes the Board has allowed surveyors to mitigate damages; he also believes the Board allows incorporation by reference on surveys and maps. Counsel for Burden attempted to compel the appearance of Board members by mailing subpoena to them, certified mail, with witness checks enclosed. On the advice of counsel that the service was defective, the members did not appear. Documents sought by the subpoena duces tecum were voluntarily produced by the Board's Executive Director, an employee of the DBPR, Angel Gonzalez, to the extent that he was able to obtain the documents and records. Diane Jones has been registered as a land surveyor for seven years and worked as an intern in the field for fifteen years. She has been employed by DBPR in the past as a consultant in cases the agency brings to the Board. She was a consultant in the Burden case. Ms. Jones was unable to confirm that the alleged policies were, in fact, Board policies. Her understanding was similar to Blackburn's, generally. In her capacity as consultant to DBPR in discipline cases, she has no difficulty interpreting and applying the minimum technical standards or other rules of the Board, based on her knowledge of the rules and her professional experience. In addition to alleging unwritten policies by the Board, Burden challenges a series of existing Board rules which he claims are invalid exercises of legislative delegation. For each rule that is a subject of his petitions, he claims invalidity based on excess of rulemaking authority, enlargement or modification of the law, vagueness and capriciousness. More specifically, Burden claims the following: a) Rules 61G17-6.002(2) and 61G17-6.002(6)(g), F.A.C. (defining "corner" and "land or Boundary Survey", respectively) illegally attempt to grant the land surveyor the right to establish or re-establish "boundary lines"; b) Rule 61G17-6.003(4), F.A.C. illegally requires a basis of bearing to be shown; c) Rule 61G17-6.003(8)(a), F.A.C. is non-specific about the location of lot and block numbers on a survey drawing; Rule 61G17-6.003(15), F.A.C. illegally requires land surveyors to state certain unnecessary data for survey corners. Rule 61G17-6.003(18), F.A.C. illegally requires the land surveyor to place almost all abbreviations in a legend or not use such abbreviations; Rule 61G17-6.003(13), F.A.C. illegally requires the land surveyor to show unidentified "fixed improvements"; Rules 61G17-6.003(8)(c) and (d) illegally require a land surveyor to perform a comparative analysis to reference points other than those described at Rule 61G17-6.002(5), F.A.C.; and Rule 61G17-6.003(10), F.A.C. illegally requires the land surveyor to show adjoining elements and rights of way which are shown on instruments incorporated by reference into the survey drawing. 11. Rules 61G17-6.002(2) and 61G17-6.002(6)(g) provide: (2) Corner: shall mean a point on a land boundary that designates a change in direction, for example: points of curvature, points of tangency, points of compound curvature and so forth. . . . (6) Survey: shall mean the orderly process of determining data relating to the physical or chemical characteristics of the earth, and may be further defined according to the type of data obtained, the methods and instruments used, and the purpose(s) to be served. All surveys showing land boundary information must be in accordance with Rule 61G17-6.003. For purposes of this rule, types of surveys shall include the following definitions: . . . (g) Land or Boundary Survey: shall mean a survey, the primary purpose of which includes, but is not limited to, the determining of the perimeters of a parcel or tract of land by establishing or re-establishing corners, monuments, and boundary lines for the purposes of describing, locating of fixed improvements, or platting or dividing the parcel. According to Blackburn, the deed rather than the surveyor establishes the land boundaries. This argument or fact does not provide a basis to invalidate the rules as the rules do not require or allow a surveyor to create boundaries as an extent of legal possession. Rather, the purpose of the rules is clearly stated in (6)(g). The language of the rules is consistent with treatises and textbooks that are nationally recognized. The American Congress on Surveying and Mapping (ACSM) and the American Society of Civil Engineers (ASCE) jointly adopted this definition in 1978: Land surveying is the art and science of: (1) Re-establishing cadastral surveys and land boundaries based on documents of record and historical evidence; (2) planning, designing and establishing property boundaries; and (3) certifying surveys as required by statute or local ordinance such as subdivision plats, registered land surveys, judicial surveys, and space delineation. Land surveying can include associated services such as mapping and related data accumulation; construction layout surveys; precision measurements of length, angle, elevation, area and volume; horizontal and vertical control systems; and the analysis and utilization of survey data." (Respondent's exhibit Number 2) 12. Rule 61G17-6.003(4), F.A.C. provides: (4) A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat." References to Magnetic North should be avoided except in the cases where a comparison is necessitated by a Deed Call. In all cases, the bearings used shall be referenced to some well-established line. Both parties' experts agree that the purpose of this rule is to relate the property surveyed to an established line so that subsequent surveyors could retrace or reconstruct what the surveyor did with regard to angles and the like. "Assumed north" is simply a direction assumed and does not relate to a compass direction. If only angles are shown, and no bearings, the rule does not apply. Bearings are a way of indicating angular relationships; an angle can be developed from the bearings. The rule legitimately fulfills its purpose of avoiding ambiguity. 13. Rule 61G17-6.003(8)(a), F.A.C. provides: Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: The lot(s) and block numbers or other designation, including those of adjoining lots. This is not a complicated rule. Showing the lot numbers helps interpret and orient the map. Even though the title of the survey or text on the survey may identify the lot number of the lot being surveyed, including the number on the face of the drawing makes the survey easier to read. 14. Rule 61G17-6.003(15), F.A.C. provides: (15) The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments, as defined herein, unless monuments already exist at such corners. All monuments, found or placed, must be described on the survey drawing. When the property corner cannot be set, a witness monument shall be placed with data given to show its location upon the ground in relation to the boundary lines or corner. The corner descriptions shall state the size, material, and cap identification of the monument as well as whether the monument was found or set. The distance along boundaries between monuments shall not exceed fourteen hundred feet. When a parcel has a natural and/or an artificial feature such as a roadway, river, lake, beach, marsh, stream or other irregular boundary as one or more of its boundaries, then a monument meander or survey line shall be established either directly along or near the feature. Dimensions shall be shown between the meander or survey line and the boundary line sufficient to show the relationship between the two. Even though monuments may be accidentally or deliberately moved by contractors, property owners or neighbors, the monuments are still an important feature of a survey. A prudent surveyor would not rely on an existing monument without looking for signs of disturbance and verifying its placement. The efficiency of showing and describing a monument outweighs any danger of including it. 15. Rule 61G17-6.003(18), F.A.C. provides: ABBREVIATIONS: Abbreviations generally used by the public or in proper names that do not relate to matters of survey are excluded from the legend requirement. Acceptable abbreviations on the face of maps, plats, or survey drawings are: N = North S = South E = East W = West or any combination such as NE, SW, etc. . = Degrees ' = Minutes when used in bearing " = Seconds when used in a bearing ' = Feet when used in a distance " = Inches when used in a distance AC = Acres + = More or less (or Plus or Minus) Any other abbreviations relating to survey matters must be clearly shown within a legend or notes appearing on the face of the drawing. Blackburn contends that the legend requirement is time-consuming, expensive and unnecessary. A surveyor, however, is not required to use abbreviations. To the extent that they are used, they should be explained on the face of the document. A legend facilitates interpretation of the survey and eliminates questions or ambiguities. The rule establishes some clear exceptions to the legend requirement in subsection (b). According to Diane Jones, subsections (a) and of the rule are vague and confusing. In her opinion, every abbreviation that is not addressed in subsection (b) should be explained in a legend on the survey. She, therefore, would prefer to see everything explained on the face of the document, while Petitioner prefers to dispose of the legend altogether. Reasonable minds plainly differ; although the rule could be improved with rewording, as suggested by Ms. Jones, it is not invalid for the reasons advanced by Petitioner. 16. Rule 61G17-6.003(13), F.A.C. provides: (13) Location of fixed improvements pertinent to the survey shall be shown upon the drawing in reference to the boundaries, either directly or by offset lines. If fixed improvements are not located or do not exist, a note to this effect shall be shown upon the drawing. Pertinent improvements are improvements made for the enjoyment of the property being surveyed and shall include docks, boathouses, and similar improvements. According to Blackburn, inclusion of fixed improvements on the survey should depend on what the client has ordered. He also feels the rule results in surveys that are misleading to the public as the inclusion of any fixed improvements would imply that those are the only fixed improvements in the area. These concerns are mutually inconsistent. The rule is clear and unambiguous. It is also consistent with accepted principles of land survey practice. 17. Rules 61G217-6.003(8)(c) and (d), F.A.C. provide: (8) Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: . . . A comparison between the recorded directions and distances with field measured directions and distances to the nearest street centerline, right of way intersection or other identifiable reference points where the block lines are straight. A comparison between the recorded directions and distances or computed directions and distances based upon the recorded data with field measured directions and distances to an identifiable reference point where the block lines are curved. The requirements of these rules are clear to a practicing land surveyor. "Reference point" is described in rule 61G17-6.002(5), F.A.C. as ". . . any defined position that is or can be established in relation to another defined position." Contrary to Petitioner's assertion, there is no conflict between the requirements of (c) and (d), and the definition of "reference point". 18. Rule 61G17-6.003(10), F.A.C. provides: (10) All recorded public and private rights of way shown on applicable recorded plats adjoining or across the land being surveyed shall be located and shown upon the drawing. Easements shown on applicable record plats or open and notorious evidence of easements or rights of way on or across the land being surveyed shall be located and shown upon the drawing. If streets or street rights of way abutting the land surveyed are not physically open, a note to this effect shall be shown upon the drawing. If location of easements or rights of way of record, other than those on record plats, is required, this information must be furnished to the surveyor. This rule requires that specific information be included even when that information may already be found on material incorporated by reference, like a plat, for example. The rule serves the legitimate purpose of saving the user from time consuming research. The survey should stand alone as a complete document. In summary, the rules at issue are valid and reasonably clear and consistent with establishing principles guiding the practice of professional land surveying. According to Brown, Robillard, and Wilson, Evidence and Procedures for Boundary Location, 2nd Ed (Respondent's Ex. 2): A plat should tell a complete story; it should show sufficient information to allow any other surveyor to understand how the survey was made and why the survey was correct. It also should show complete information on encroachments to enable any attorney or others to evaluate properly the effect of continued possession. (p.350) . . . A plat should be complete in itself and should present sufficient evidence of monuments (record and locative) and measurements so that any other surveyor can clearly, without ambiguity, find the locative points and follow the reasonings of the surveyor. A plat does not show the client's land alone; it shows all ties necessary to prove the correctness of location. If it is necessary to measure from a mile away to correctly locate a property, that tie, as measured, is shown. (p. 360) There is no evidence in this proceeding that either party or attorney filed pleadings or papers for any improper purpose, such as delay harassment, increase in cost or otherwise. The petitions are numerous, but they relate to rules or alleged policies at issue in a separate disciplinary action, and, on their face, they raise legitimate issues. Respondent's defense was necessary and appropriate.
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.
Findings Of Fact The Respondent is registered with the Board as a land surveyor. He holds registration number 2027. During October, 1976, Harold J. Read, Jr., a construction contractor, retained the Respondent to make a survey of lots 9067 and 9068, on block 294, in the Florida Shores subdivision, unit number 10, located in Volusia County, Florida. The lots were owned by Read, and it was his intention to construct a house on the lots for resale. Read needed the survey in order to clear the land, and to properly locate the house on the lots. On October 8, 1976, a survey team employed by the Respondent went to the site to perform the survey. The lots are located on Royal Palm Drive. The southeast corner of the lots is located 120 feet from the corner of Royal Palm Drive and 26th Street. The survey team located the concrete monument or survey marker at the northwest corner of Royal Palm and 26th Street, and set a "tin tab" in the middle of Royal Palm Drive extending directly across the street from the permanent monument. A "tin tab" is a metal disc approximately twice the size of a quarter which is used by surveyors to make appropriate markings in the middle of streets. The tin tab is nailed into the street. The survey team then measured 120 feet along the center of Royal Palm Drive and set a tin tab which was directly across from the southeast corner of the lots. The team then measured 80 feet further along Royal Palm Drive and set a tin tab to designate the northeast corner of the lots. All of the lots in the Florida Shores subdivision are 40 feet by 125 feet, therefore the two lots owned by Read had an 80 foot frontage on Royal Palm Drive. The team measured directly from the tin tabs over to the edge of the Royal Palm Drive right-of-way and located the corners of the lots. Spaces were cleared and iron pipes were placed in the ground to mark the corners. Next to each pipe, a four foot long piece of wood lath was placed approximately eight inches in the ground, and yellow flags were tied to the stakes. These stakes were placed at the corners in order to allow the owner to easily see the locations of the corners. Four foot long stakes were used because the lots had not been cleared and the growth was rather heavy. When the southeast and northeast corners were located in this manner, the survey team performed a similar operation to locate the southwest and northwest corners. The team did not determine these corners by measuring 125 feet from the eastern corners because of the thickness of the underbrush. Instead, the team measured down 26th street 125 feet, and set the western corners walking along a cleared electrical wire right-of-way. Iron pipes and wood stakes with yellow flags were placed at each of the western boundaries. The survey team was at the site for approximately one and one half hours. Iron reinforcing rods which appeared to be markings from previous surveys were found at at least two of the corners, and in order to set the iron pipes, the survey team needed to clear underbrush. On October 13, 1976, Harold Read, several of his employees, and a dozer operator who he had hired to clear the lots appeared at the lots to clear them, and to locate the house. They found stakes somewhat shorter than those placed by the surveyors. One of the Board's witnesses testified that these stakes had yellow flags tied to them, but the rest of the witnesses testified that the flags were orange. At least two, and possibly three of the stakes were located next to iron pipes which appeared to be the corner markers. Read assumed that these stakes marked the corners, and he instructed the dozer operator to clear the property accordingly. After the lots were cleared, Read, with his employees, located the house on the lot so that there would be approximately ten feet between each end of the house and the northern and southern boundaries of the lots. Read then commenced to build the house, and in January, 1977, the house was nearly completed. In order to complete financing arrangements the lending institution that had been utilized by Read requested that the lots be resurveyed in order to assure that the house was appropriately located. On January 29, 1977, the Respondent went to the lots to perform the resurvey. He found that the lots had been cleared twenty feet too far south, and that the house had been located so that it encroached by ten feet into the lot which directly adjoined Read's lots to the south. He checked and found that the tin tabs placed by his crew were still in the center of Royal Palm Drive designating what would have been the correct boundaries of the lot. He did not find the pipes that would have marked the correct corners, so he reset pipes at the appropriate corner locations. Thereafter the Respondent checked the information with his survey team, and verified that the original survey had been done correctly. He then contacted Read about the discrepancies. Read, the Respondent, and several others visited the site later that day. The Respondent denied, and continues to deny, that the original survey was conducted improperly. Read has consistently maintained that he correctly followed the stakes that were at the site. No explanation was offered at the hearing, and it does not appear that any of the parties have evidence which would explain how the stakes and pipes came to be moved from the correct locations on October 8, when the survey was conducted, to incorrect locations on October 13, when the lots were cleared, and the house was located. It affirmatively appears from the evidence that the Respondent's crew properly performed the survey and that the Respondent was not responsible for the stakes being moved. Evidence contrary to this finding has been considered and rejected.
Findings Of Fact The signs in question are located on Interstate 10, an interstate highway. One sign is located one-half mile west of the intersection of Interstate 10 and State Road 79, and the other sign is located one mile east of said intersection. The first sign is located 120 feet and the second sign located 130 feet from the nearest edge of pavement of Interstate 10. Neither sign is located within an incorporated city or town, and neither has been issued a permit as required by Section 479.07, Florida Statutes. The owner of the signs holds leases from the owners of the land upon which the signs are located. The signs were constructed in the first week of December, 1978, after Interstate 10 was opened to public use and accepted as part of the interstate system. On July 2, 1979, Holmes County duly adopted a comprehensive land use plan, which provides in pertinent part as follows: It is the intent of this plan that a strip of land 50 feet wide, lying on either side of I-10 and extending east and west one mile from S.R. 79 interchange and one mile from S.R. 81 interchange, be considered commercial, for the express purpose of allowing the business of Holmes County to place signs along the side interstate highway, and be in conformance with the provisions of Chapter 479, Florida Statutes. Both signs in question are located in the area described above in the comprehensive land use plan. Having adopted the comprehensive land use plan, Holmes County is now developing its zoning plan in the manner outlined in Chapter 163, Florida Statutes. However, the zoning ordinance has not yet been adopted by Holmes County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, tee Hearing Officer recommends that the Department of Transportation net grant permits to the subject signs and, having been found in violation of Section 479.07, Florida Statutes, said signs be removed. DONE and ORDERED this 13th day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 James E. Moore, Esquire 102 Bayshore Drive Post Office Box 746 Niceville, Florida 32578
The Issue The issues in this case are those which arise through the allegations set forth in an Amended Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. In its operative terms, Respondent is said to have committed violations of Sections 472.033(1)(g) and (h) and 472.005(4)(b), Florida Statutes. Factually, Respondent is said to have entered into a contract with Leonard Freed for the performance of land surveying services on a parcel of property which Freed owned. The contract price is said to be $6,000.00. Allegedly the Respondent began and had partially performed the work and had received $3,000.00 from Freed in payment. Respondent is alleged to have been negligent in his performance of the job in that he based an initial survey on a preliminary lot layout in contravention of the requirements of Chapter 21HH-6, Florida Administrative Code. It is further alleged that the contract entered into between the Respondent and Freed was such that the Respondent was called upon to design streets and layouts to include grades and drainage and that this arrangement exceeds the scope of the Respondent's land surveyors license. Finally, some reference is made to the fact that Respondent had previously been disciplined by the Board of Land Surveyors in Case No. 54633 for which he was fined $1,000.00 and ordered to serve 27 months probation, through the terms of a Final Order entered by that Board on October 1, 1985.
Findings Of Fact Those persons who are engaged in the profession of land surveying in the State of Florida are licensed by and subject to the discipline of the State of Florida, Department of Professional Regulation, Board of Professional Land Surveyors. This arrangement is in conjunction with the requirements of Chapters 120, 455, and 472, Florida Statutes and rules associated with those statutory provisions. At all times relevant to this case, Respondent, Frederick R. Bolt, was licensed as a Professional Land Surveyor through the State of Florida, Department of Professional Regulation and held license number LS 0003510. On or about July 31, 1987, Respondent entered into a contract with one Leonard Freed to perform land survey services on a parcel of property owned by Freed. Said parcel of property is described in the contract as the Dorcas property. Total contract price was $6,000.00. According to the contract, a copy of which may be found as part of Petitioner's Composite Exhibit No. 2, part of the work to be done by Respondent related to the Dorcas parcel was "street design & layout to include all grades and drainage." At the point and time where the contract was signed Respondent was paid $1,000.00. Subsequently, on August 18, 1987, a second installment of payment was given to the Respondent in the amount of $2,000.00. As related in Petitioner's Exhibit No. 8, Respondent had been the subject of disciplinary action by the Board of Professional Surveyors on a prior occasion. In that instance, the Respondent was found in violation of Sections 472.021 and 472.027, 472.033(1)(a), (g) and (h) and 455.227(1)(b) Florida Statutes, as well as Rules 21HH-2.01 and 21HH-6, Florida Administrative Code. The gravamen of the Administrative Complaint which underlies this prior disciplinary action related to the performance of his land surveying work and the performance of that work through a firm which had utilized a fictitious name and that had not been possessed of a certificate of authorization as required by Chapter 472, Florida Statutes. A $1,000.00 fine was imposed and the Respondent was placed on a period of probation for 27 months from the date of the Final Order, which date is October 1, 1985. During the probationary period Respondent was required to submit 25 surveys over to the Board for its review, representative of his practice and accompanied by field notes and record plat.
The Issue Whether Petitioner should be granted an exemption under Section 478.221(3), Florida Statutes, from the provisions of the Florida Uniform Land Sales Practices Law, Chapter 478, Florida Statutes. By stipulation dated February 14, 1978, the parties agreed that the Division of Administrative Hearings take jurisdiction in the matter under Section 120.57(1), in the absence of disputed issues of material fact. The parties also agreed to waive the notice requirements under Chapter 120. The parties stipulated to the facts of the case (Exhibit 4), and to the admission in evidence of Petitioner's application and supporting documents (Composite Exhibit 1), a letter of Respondent acknowledging receipt of the Claim of Exemption dated July 15, 1977, (Exhibit 2), and Respondent's notice to Petitioner, dated September 19, 1977, that the Claim of Exemption was rejected (Exhibit 3). Petitioner submitted an answer filed by the Respondent as Defendant in civil judicial proceedings based on its denial of the exemption claim in the Circuit Court of Leon County, Case No. 77-220, which was rejected by the Hearing Officer as irrelevant to the proceedings in view of the accepted Stipulation of Facts. (Appellate Exhibit 1)
Findings Of Fact The Stipulation of Facts is as follows: On July 14, 1977, Petitioner submitted to the Respondent and the Director thereto, a claim of exemption as required by Florida Statute 478.221(3); and claiming compliance with the provisions thereunder. Pursuant to the discretionary authority as provided for in Section 478.221(3), Florida Statutes, the Director of the Division of Florida Land Sales and Condominiums, by letter dated September 19, 1977, informed Petitioner that its claim for exemption was denied. Said letter is attached hereto and incorporated herein by reference as exhibit 1. The substance of said letter indicated that the Director, pursuant to his discretionary authority, provided for in Section 478.221(3), Florida Statutes, was not satisfied "that all necessary conditions of the exemption are present, i.e., in particular that the property is usable for the purpose for which it is offered." Said denial was based upon a letter received from the Chairman of the Board of County Commissioners of the County of Martin, State of Florida, dated August 8, 1977, and objecting to any exemption on the grounds that: "Gold Coast Ranches has not applied to Martin County for plat approval as required in our subdivision regulations," and; "Gold Coast Ranches, Inc., has not applied for road opening permits as required by Martin County ordinances." Said letter from the County of Martin, also indicated that since the parcels created by Gold Coast Ranches, Inc., were smaller than 20 acres, they were subject to the subdivision regulations of the County. A copy of said August 8, 1977, letter from the Chairman of the Board of County Commissioners, for the County of Martin, State of Florida, is attached hereto and incorporated herein by reference as Exhibit 2. The roads proposed by Gold Coast Ranches, Inc., are to be of a private nature. The subdivision in question is not to be platted, but lots are to be sold pursuant to a metes and bounds description in excess of 5 acres.
Recommendation That Respondent deny Petitioner's request for exemption pursuant to Section 478.221(3), Florida Statutes. Done and Entered this 16th day of March, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire 725 South Bronough 210 Johns Building Tallahassee, Florida 32304 L. M. Taylor, Esquire Post Office Box 14577 North Palm Beach, Florida 33408
