The Issue The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3) , Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing. WITNESSES AND EXHIBITS Petitioner testified in this cause and offered two exhibits which were received. Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.
Findings Of Fact Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.) Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.
The Issue Whether the Respondent, School Board of Broward County, Florida (Respondent or Board), may reject all bids as proposed for Bid No. 2002-02-FC, Group A1, or whether such action is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact The Respondent is the entity charged with the responsibility of governing the public schools within the Broward County School District. As such, the acquisition of school properties and attendant improvements fall within the Board's legal authority. These cases involve the procurement of relocatable buildings suitable for classroom purposes. Pursuant to its authority, on or about December 27, 2002, the Respondent issued a bid that is the subject matter of the instant challenge. The bid, identified in this record as Bid 2002-02-FC, sought proposals for the procurement of district-wide relocatable buildings. In a prior time these buildings were known as "portable classrooms" or "portables." In the post-Hurricane Andrew world, these structures are now pre-engineered and constructed of concrete or steel (or a hybrid of both) and must be, by design, capable of being relocated to various sites. The Petitioners, Royal and Padula jointly, and the Intervenor, James B. Pirtle Construction Company, Inc. (Pirtle or Intervenor), design, construct, and install such structures. In these cases the bid sought several distinct proposals. First, the project sought vendors who would provide and deliver concrete relocatable buildings (Group A1). Group A2 (not at issue in this proceeding) sought steel relocatable buildings. Group B (also not at issue in the instant case) sought site adaptation prices for landscaping, lighted covered walkways, steps, ramps, and other engineering incidental to the installation of the buildings. The advertisement for the bid carried the same generic information as to all groups. The bid documents also contained many terms that were applicable to all groups. Pertinent to the issues of these cases are the following excerpts from the bid document (Joint Exhibit 2). The order of the excerpts should not suggest any significance. The excerpts are listed in this manner solely for convenience sake: BASIS OF AWARD In order to meet the needs of the school system . . . each Award will be . . . up to three responsive and responsible bidders meeting specifications, terms and conditions. Individual projects will be issued . . . based upon lowest cost among one or more bidders per project as determined by the project manager. Therefore, it is necessary to bid on every item in the group, and all items in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on Document 00410 Bid Form. SBBC [the Respondent] reserves the right to procure goods from the second and third lowest bidders if: a) the lowest bidder cannot comply with delivery requirements or specifications; b) the lowest bidder is not in compliance with delivery requirements or specifications on current or previous orders; c) in cases of emergency; d) work may be issued to multiple contractors if in the opinion of The School Board of Broward County, Florida or its staff the work cannot be completed by a single contractor in the specified time such as a Summer, Winter or Spring Break or if it is in the best interest of SBBC to do so regardless of reason. ARTICLE 4 BIDDING PROCEDURES 4.01 FORM AND STYLE OF BIDS A. Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid: * * * SIGNED SEALED ARCHITECTURAL AND ENGINEERING DESIGN DRAWINGS OF THE STRUCTURES TO BE PROVIDED (FOR RELOCATABLE BUILDINGS BID ONLY) 5.03 REJECTION OF BIDS AND IRREGULAR PROPOSALS * * * The Owner shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bid Documents, or reject a Bid which is in any way incomplete, irregular or otherwise not Responsive. The Owner may waive any formality in the bid requirements and award or not award the contract in the best interests of The School Board of Broward County, Florida. (Emphasis in original not shown) In addition to the foregoing, the bid documents contained detailed and specific design criteria that set forth information such as the slope of roofs, the roof spans, the mechanical systems, ventilation, plumbing, windows, and stoops. These design criteria covered hundreds of topics and encompassed virtually every facet of the structures. To review each bid proposal as to whether each design specification was met would require countless man-hours. The issue of how to review the bid proposals was not adequately anticipated by the Respondent. From the outset the bid document evolved from unusual circumstances. Whether the bid document was intended to be a request for proposals (RFP) or an invitation to bid (ITB) was a primary confusion among the Board's staff. If the proposals were to be deemed responsive or not and then ranked solely on price (thus making the bid process more like an ITB) how could staff effectively determine the threshold question of responsiveness? If the proposals were to be ranked based upon a point or qualitative approach (more like an RFP) where were the criteria by which to score the proposals? In fact, there were no objective criteria disclosed in the bid document by which a proposal could be evaluated. More curious is that no bidder brought this lack of evaluation criteria to the Board's attention during the mandatory bidder's conference. Moreover, no one challenged the bid specifications. Presumably, the bidders believed it was an "all or nothing" award. That is, if they were the lowest responsive bidder, they would receive the award. The question of who would be responsive and how that decision would be resolved did not come to light until after the bids had been opened. At the mandatory bidders' conference conducted on January 14, 2003, the bidders posed questions in the form of requests for information. In response, the Respondent issued six addenda intended to cover the questions posed. None of the responses addressed how the bid proposals would be evaluated. If anything, Addendum No. 3 added to confusion related to what documents must be submitted with the bid proposal. More specifically, Addendum No. 3 provided, in pertinent part: [Addendum 3, question and response to inquiry] 9. Can schematics be submitted with the bid instead of the signed and sealed architectural and engineering design drawings of the structures that are requested in Document Article 4.01.A.6? Response: Signed and Sealed Architectural/Structural Drawings are required to be submitted with the Bid. The Requirement for Mechanical and Electrical signed and sealed drawing is waived, however all engineering associated with the Relocatable Buildings will require engineer of record signed and sealed drawings and calculations prior to issuance of building permit DRC review. Nevertheless, when the bid proposals were opened on March 4, 2003, the Petitioners and the Intervenor were found to be the three lowest bidders. If responsive, the Intervenor would be considered the lowest bidder with the Petitioners being considered alternate vendors for the procurement. Unsatisfied with the preliminary determination that the Intervenor was the lowest bidder, the Petitioners timely challenged the bid award. The Petitioners maintained that the Intervenor had not timely provided sealed design drawings as required by the bid document. Petitioners argued that the Intervenor had attempted to impermissibly amend their proposal by late-filing a set of structural drawings for the bid. Thus the initial bid protest sought to determine what design drawings were required by the bid and whether the Intervenor had timely supplied such drawings. The Petitioners contended that the Intervenor's submittal should be rejected as non-responsive to the bid. Whether they had complied with the full dictates of the bid requirements was potentially at issue as well. While the initial bid protest was referred to the Division of Administrative Hearings and scheduled for formal hearing, the parties continued to attempt to resolve the issues. It was apparent that the bidders had not submitted identical proposals. How the proposed products had been compared and evaluated was difficult to determine. From the Respondent's committee members came the disclosure that the decision of determining whether the bidders had complied with the bid ultimately came from three fashioned questions. If the structure proposed was pre- engineered, relocatable to various sites, and suitable for educational purposes, the entry was deemed responsive. Based upon this assessment the Petitioners and the Intervenor were deemed responsive and their bids ranked based upon price. This approach did nothing to discern if the designs were comparable in quality, if they met the bid design criteria, or if the drawings were even sufficient to comply with the dictates of the bid. The first posting of the bid award for Group A1 was entered March 18, 2003. On March 21, 2003, the Petitioners timely filed their notices of intent to protest the award of Group A1 to the Intervenor. Thereafter they timely filed the petitions to protest the award and the initial protest was forwarded to the Division of Administrative Hearings. The protests did not encompass Group A2 or Group B. No bidder protested the proposed awards for Group A2 or Group B. In fact, the Respondent went forward on those procurements and awarded contracts for those groups on April 1, 2003. The Respondent did not award the contract award for the Group at issue in this proceeding. It must be noted that the instant procurement is not the Board's first experience with the procurement of concrete relocatable classrooms. In fact, the Board has purchased similar structures through a procurement contract that the Palm Beach County School Board holds with its vendors. One of the Respondent's concerns when the instant bids were reviewed was why the cost per unit for the bids in this case was higher than the Palm Beach County amount. As it turned out, the installation economy of multiple units at one site directly impacts the cost of the relocatable structures. Royal confirmed this information after the bids had been opened. When the Respondent's staff met with its counsel in preparation for the initial bid dispute (before the Board elected to reject all bids) the cost of the bid, the lack of full evaluation of the bidders' proposals, and the issues of the first protest were openly discussed. By that time any irregularities with the bid documents could not be repaired as to the contracts already awarded, but as to the instant matter the Respondent could revisit the circumstances and determine its best course. As a result of that reassessment, the Respondent elected to reject all bids regarding this group and attempt to re-bid the procurement with more certain terms. To that end on May 9, 2003, the Respondent issued a revised bid decision that provided in pertinent part: The Facilities and Construction Management Division intends to recommend that The School Board of Broward County, Florida, at the School Board meeting on June 3, 2003, reject all bids received for Group A1 and authorize revising the bidding documents and re-bidding. The rejection of all bids received for Group A1 is made due to serious flaws and ambiguities contained in Document 00200 4.01.A-6 as modified by Addendum No. 3. The Division intends to revise the bidding documents to delete the requirements that bidders submit plans with the bids; include ranges of unit quantities within the bid form; include one or more additional types of construction of the classroom buildings including a composite concrete/steel structure; and incorporate within the new Invitation to Bid all revised terms and conditions that were released through addenda in this procurement. The Petitioners timely filed protests regarding this new decision by the Board and the instant action ensued. By issuing the revised decision to reject all bids the Respondent intended to resolve all issues and to cure the perceived problem with the lack of consistent evaluation of the bidders' proposals. More specifically, the Respondent would be able to assure that the project design could comport with the specifications sought; specify whether architectural or engineering drawings were required and when (it was hoped that the confusion over "architect" vs. "engineer" could be eliminated); and obtain a substantial discount based upon economies from multi-unit purchases for a single site. None of the objectives sought were pre-textual or contrived. Additionally, by avoiding any process that would require a detailed reviewed of the bidders' proposals, countless man- hours could be saved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County enter a Final Order affirming the decision to reject all bids in this matter. DONE AND ENTERED this 20th day of November 2003 in Tallahassee, Leon County, Florida. S ___________________________________ D. PARRISH 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 20th day of November 2003. COPIES FURNISHED: Dr. Franklin L. Till, Jr. Superintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Usher Larry Brown, Esquire Brown, Salzman, Weiss & Garganese, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Steven L. Schwarzberg, Esquire Schwarzberg & Associates Esperante, Suite 210 222 Lakeview Avenue West Palm Beach, Florida 33401 Thomas R. Shahady, Esquire Adorno & Yoss, P.A. 350 East Las Olas Boulevard, Suite 1700 Fort Lauderdale, Florida 33301 Robert Paul Vignola, Esquire Broward County School Board C. Wright Administrative Building 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
The Issue The issues for determination are whether, as alleged in the Amended Administrative Complaint, Walter L. Moyer, violated Section 472.033(1)(g) and (h) F.S. and Rule 21 HH-2.01(3) by performing a land survey in a negligent or incompetent manner, without due care and without due regard for acceptable professional standards, and violated Section 472.033(1)(e), (g) and (h) F.S., and Rule 21HH- 2.01(3) and (5) FAC, by providing a false or deliberately inaccurate survey sketch to a client on two separate occasions.
Findings Of Fact Walter L. Moyer has been licensed by the State of Florida as a registered surveyor from approximately August 1977 until present, and holds license number LS 0002828. His address for license purposes is Palm Bay, Florida, in Brevard County. His practice as a surveyor has been primarily in construction-related surveys and lot surveys, with very few parcel surveys. THE CHILCOTT SURVEY (COUNT I) In June 1984, Charles and Robin Chilcott purchased property on Grant Road, in Brevard County, consisting of approximately 1.44 acres of undeveloped land. The Chilcotts acquired the parcel with the intent to construct a home and keep their horses. Shortly after purchase, the Chilcotts retained Moyer to prepare a boundary survey of the parcel. The cost of the survey was $315.00 including $7.50 extra cost for two concrete monuments, rather than iron rods, at the front corners, as requested by the Chilcotts. The survey was performed on July 27, 1984, and Moyer was paid. He furnished the Chilcotts several sketches of survey which he had signed and sealed. In 1985, the Chilcotts hired a contractor, Casey Jones, and commenced building their house. At the request of Casey Jones, Moyer prepared both the foundation and final surveys. These two surveys were added to the boundary survey on September 26, 1985, and November 23, 1985, respectively. At the time that the field work on the foundation and final survey was done, Moyer detected no problems with the monumentation he had initially set in the boundary survey. He did not see any evidence that the monuments had been disturbed. The final survey shows the house to be 17.35 feet inside the east lot line. The Chilcotts wanted at least that distance because the area is zoned agricultural and they did not want the neighbor's livestock close to the house. They also understood that the county required a minimum 10-foot set-back. In connection with the construction of their home, and in reliance upon Moyer's survey identifying their property's boundary, the Chilcotts installed a well and a fence and had approximately 800 feet of sod planted along the east boundary. The Chilcotts have since learned that those improvements are not on their property and that their house is, in fact, only 7.25 feet from the lot line. In May, 1986, David Rothery, a Florida licensed land surveyor, performed a boundary survey of the Donald Waterbury parcel adjacent to and just east of Chilcott's land on Grant Road. Rothery checked and double-checked his field measurements and still found a ten foot discrepancy in the placement of the monuments on the eastern corners of the Chilcott parcel. Those monuments were ten feet too far to the east and were, therefore, placed ten feet within the Waterbury boundaries. He did not observe any indication that the monuments had been moved, and when he placed his corners for the proper boundaries, he found no evidence that monuments had ever been there before. As required, the monuments placed by Moyer had his identification on them. Rothery put a dotted line on his survey with the notation, "Apparent survey error on adjoining property by Walter Moyer Land Surveying". Rothery also called Moyer and told him about the discrepancy. On the morning of May 10, 1986, Moyer went back out to the Chilcott property and discovered that his monuments were ten feet too far to the east. He was in the process of moving them when he was confronted by Charles Chilcott. He told Chilcott that an error was made, that he "dropped ten feet". There was some discussion about possible remedies such as paying for the well and fence to be moved or buying the ten feet from Waterbury. Chilcott did not let Moyer finish moving the monuments. That night, Chilcott, who had never met Moyer before, but had only communicated by phone or in writing, called Moyer's house and confirmed that it was the same person he had seen moving the monuments. That was the last time Chilcott spoke with Moyer. Chilcott called Moyer's house several times over the following months, but always reached Mrs. Moyer and his phone calls were not returned. Moyer did contact Waterbury about purchasing the ten foot strip. Waterbury was concerned about how this would affect his eventual ability to build on his lot and refused to sell. Waterbury is not pressing the Chilcotts about their encroachments; he simply expects to have the matter resolved sometime in the future. By a letter dated 8/18/86, the Chilcotts requested damages of $2,500.00 from Moyer, including an estimate of costs to move the well, fence and a power pole and to replace sod. On September 13, 1986, another letter from Chilcott to Moyer listed the same plus additional damages, for a total demand of $4,025.00. In a letter to Chilcott dated August 27, 1987, Moyer offered to pay the application fee to seek a variance from the setback requirement and offered to provide a final survey and half the cost of moving the well. The letter denied that the problem was Moyer's fault and said that Moyer believes that the markers were moved between the date the survey was completed and the date of the foundation. The Chilcotts rejected that offer. No evidence in this proceeding supports Moyer's contention that the Chilcotts or someone else moved the monuments he originally set in 1984. The evidence does establish a strong circumstantial basis for finding that the monuments were not moved, but were incorrectly placed by Moyer at the time that the boundary survey was completed. Setting the monuments properly is an essential component of conducting a boundary survey. Moreover, when a subsequent final survey is done, it is the duty of the surveyor to assure that the original monuments have not been disturbed during construction and site work by a contractor. Assuming that Moyer is correct in his contention that the monuments were moved after they were set by him, but before the foundation was placed, it was his duty to discover that fact. He did not, since his final survey shows that the house is 17.35 feet from the boundary, whereas the house is, in fact, approximately seven feet from the adjoining property. Except when witness monuments are used, as when a tree or other obstruction sits on a boundary corner, it is a violation of standard surveying practice to place a monument other than where it is shown on the survey drawing. In this instance, the drawing is accurate; as described in the Chilcott deed, the northeast corner of their property is 600 feet from the section corner. There was no need for witness monuments here; yet the east boundary monuments are ten feet off and are 590 feet from the section corner. There is no overlap in the legal descriptions of the Waterbury and Chilcott properties to account for the overlap in monuments discovered by David Rothery, the Waterbury surveyor. Surveying is a system of checking measurements. Both human and equipment errors in the profession are neither rare nor entirely common. Even the most up-to-date electronic equipment is subject to discrepancies. Checking and rechecking field measurements helps alleviate errors. The minimum technical standards developed by and for the profession are intended to reduce errors, although it is not clear that slavish adherence to those principles will absolutely prevent any possibility of error. When errors do occur, the standard of the profession is to work with the client to resolve the problem. In some cases, this may mean the purchase of the client's property or adjoining property if the party is willing to sell. Moyer's limited offers do not meet the established standards of the profession. THE BURGOON-BERGER SURVEYS COUNTS II AND III On August 21, 1986, Moyer signed and sealed a survey sketch of Lot 22, Block 2245, Port Malabar, Unit 44, in Brevard County Florida for Burgoon-Berger Construction Co. The survey of Lot 22 showed the drawing of an improvement within the boundaries of the lot with a notation, "FOUNDATION FF ELEV 25.86." Next to the date on the survey is the abbreviation, "FND". The survey was submitted to the Palm Bay Building Department on August 26, 1986, the day before the pre-slab inspection. A pre-slab inspection is done before the slab is poured; therefore, at the time the survey was signed and sealed, the concrete slab had not yet been poured. On October 20, 1986, Moyer prepared a sketch of survey of Lot 7, Block 1054, Port Malabar Unit 20, in Brevard County, Florida for Burgoon-Berger Construction Co. The survey sketch indicated an improvement within the boundaries of the lot, with the notation, "FOUNDATION FF ELEV 26.87". Next to the date on the survey is the notation "FND". The survey was submitted to the City of Palm Bay on October 28, 1986. The pre-slab inspection was done by the City on October 22, 1986. Again, the survey was signed and sealed before the slab was actually poured. The notation, "FOUNDATION FF ELEV", is commonly understood to mean "foundation, finished floor elevation". "FND" is commonly understood to mean "foundation". Moyer, himself, has used both notations to signify those common usages. Foundation is generally accepted in the land surveying profession to mean something permanent and constructed, like a concrete slab, not bust the ground or wooden form boards used to guide the pouring of the slab. A survey which depicts an improvement with the note, "FOUNDATION FF ELEV", when the floor has not been finished misrepresents the status of the construction of that project. Reviewing personnel at the Palm Bay Building Department rejected the surveys and alerted the City's Flood Plain Administrator. That individual, Maria Parkhurst, reported the incidents to the Department of Professional Regulation. Lots 22 and 7 are both in the flood plain and slab elevation is significant, as the City must assure that federal maximum elevation requirements are met. The City requires the submission of surveys containing slab elevation data. Banks also rely on foundation surveys submitted by contractors in order to determine the state of construction before the release of a foundation draw. That is, before the contractor is entitled to partial payment for his work, the bank needs to know if the work has been done. Both Moyer and his client, Bergoon-Berger, intended the notation in these cases to mean "finished form", not "finished floor". Burgoon-Berger had Moyer perform a survey after the wooden form boards were constructed, but before the concrete slab was poured, in order to assure that the house was placed properly on the lot. The survey was somehow submitted prematurely to the city, whereas because Moyer and his client intended that the poured slab be re-surveyed before the sketch was submitted. When the survey for Lot 7 was resubmitted to the City on October 31, 1986, the slab had been poured and, while the elevation remained the same, the size of the fireplace foundation was slightly smaller. The notation, "FOUNDATION FF ELEV" remained the same, with nothing on the face of the survey sketch to indicate that this later version was the finished floor, rather than the finished form. Moyer no longer uses these abbreviations. A survey is not valid until it is signed and sealed, but once it is signed and sealed, it signifies to the client and to the public at large that the information provided therein is true and accurate. The standard of professional land survey practice dictates that abbreviations which are not commonly accepted should be explained on the face of the drawing. The professional standards also dictate that even if a client asks for certain information on a survey, in anticipation that other third parties might rely on the survey the professional should either refuse to indicate improvements that do not exist yet or indicate unambiguously that the improvements are intended, but still under construction. Notwithstanding Bergoon-Berger's and Moyer's intentions with regard to the two surveys at issue, Moyer failed to meet professional standards when he signed and sealed those surveys and released them to his client.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a final Order be issued finding Respondent guilty of Counts I, II and III of the Amended Administrative Complaint and placing him on probation for a period of two years, under such conditions as the Board may deem appropriate, including, but not limited to the participation in continuing professional education courses and the pursuit of a reasonable resolution to the Chilcott's boundary problems arising from the Respondent's negligence in performing their survey. DONE and RECOMMENDED this 3rd day of December, 1987 in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1987. APPENDIX The following constitute my specific rulings on the parties' proposed findings of fact. Petitioner (Count I) Adopted in Paragraph 1. Adopted in Paragraph 2. 3-4. Adopted in Paragraph 3. Incorporated in Part in Paragraph 1., as to the limitation of experience, otherwise rejected as immaterial. Rejected as immaterial. Adopted in Paragraph 3. Adopted in part in Paragraph 3, otherwise rejected as unnecessary. 9-10. Rejected as unnecessary. Adopted in Paragraph 12. Rejected as unnecessary. Adopted in Paragraph 4. 14-18. Adopted in Paragraph 3 and 4. Adopted in Paragraph 11. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 11. 23-28. Adopted in Paragraph 7. Rejected as unnecessary. Adopted in Paragraph 7. Adopted in part in Paragraph 8, however the accurate date is May 10, 1986, and the evidence is inconclusive as to whether Moyer spoke to either of the Chilcotts before coming back. This fact is not material. 32-33. Adopted in Paragraph 8. 34. Rejected as cumulative and unnecessary. 35-37. Adopted in substance in Paragraph 8. Rejected as cumulative and unnecessary. Adopted in Paragraph 9. Adopted in part in Paragraph 9, otherwise rejected as unsubstantiated by competent evidence and immaterial. Adopted in Paragraph 6. 42-43. Rejected as cumulative. 44. Adopted in substance in Paragraph 10. 45-47. Rejected as cumulative. 48-49. Adopted in Paragraph 12. 50-51. Rejected as cumulative and unnecessary. Adopted in Paragraph 13. Rejected as cumulative. 54-55. Adopted in Paragraph 14. (Counts II and III) Adopted in Paragraph 1. Adopted in Paragraph 15. Adopted in Paragraph 16. 4-6. Adopted in Paragraph 17. Adopted in Paragraph 20. Adopted in Paragraph 21. Rejected as unnecessary. Adopted in Paragraph 18. Adopted in Paragraph 25. Adopted in Paragraph 18. Rejected as cumulative. Adopted in substance in Paragraph 25. Rejected as unnecessary. Adopted in Paragraph 23. Rejected as unnecessary. Adopted in Paragraph 25. Respondent Adopted in Paragraph 1. 2-5. Addressed in Background. Adopted in Paragraph 2. Adopted in Paragraph 3. 8-11. Rejected as immaterial. 12-13. Adopted in Paragraph 4. Adopted in Paragraph 5. Adopted in Paragraph 7. Adopted in part in Paragraph 7. Adopted in Paragraph 7. Rejected as contrary to the weight of evidence, except for the fact that the Chilcott house is 7 feet from the boundary. That fact is adopted in Paragraph 6. 19-20. Adopted in substance in Paragraph 8. Adopted in Paragraphs 9, 10, and 14. Adopted in Paragraph 10. Rejected, except as adopted in Paragraph 10. 24-25. Rejected as unnecessary. Adopted in Paragraph 11. Adopted in part in Paragraph 14, otherwise rejected as unsupported by the weight of evidence. Adopted in substance in Paragraph 13. Rejected as immaterial. While the boundary depiction is accurate, the placement of the house is in error on the final and foundation surveys and, of course, the markers are erroneously set. 30-33. Addressed in Background. 34. Adopted in Paragraphs 15 and 17. 35-36. Adopted in part in Paragraph 22, otherwise rejected as contrary to the weight of evidence. 37-38. Rejected as immaterial. 39. Adopted in Paragraphs 19 and 22. 40-44. Rejected as immaterial. COPIES FURNISHED: DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JAMES P. BEADLE, ESQUIRE 5205 BABCOCK STREET N. E. PALM BAY, FLORIDA 32905 ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 TOM GALLAGHER, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
The Issue The central issue in this case is whether the bid for the Department of Health and Rehabilitative Services Lease No. 590:1871 to provide office space in Dade County, Florida, should be awarded to either Petitioner or Intervenor.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Robert Litowitz (hereinafter "Litowitz"), in response to an invitation to bid advertised by the Department of Health and Rehabilitative Services (hereinafter "HRS"), timely filed a bid submittal form offering to lease real property located at 11401 SW 40th Street (also known as Bird Road), Miami, Florida. This lease was to be for a five-year term with two one-year renewal options. The net square footage for the lease required by HRS was 14,781 + 3 percent with the geographical boundary designated by the invitation to bid being described as follows: All bid should be for existing office space located within the following boundaries: On the North, S.W., 48th Street. On the South, S. W., 88th Street. On the East, Palmetto Expressway, and on the West, S.W., 117th Street. This description contained an error in that the western boundary line should have been 117th Avenue not 117th Street. This minor discrepancy was noted at both of two pre-bid conferences conducted by HRS. The Intervenor, James C. Colross (hereinafter "Colross"), also timely filed a bid submittal form offering to lease real property described as Building "B," 9495 Sunset Drive (Southwest 72nd Street), Miami, Florida. Prior to the bid opening date, February 17, 1987, employees of HRS conducted two pre-bid conferences. At these conferences the bid package was reviewed and explained to all potential bidders present. Litowitz attended the pre-bid conference held the last week in January 1987. At this pre-bid conference Litowitz received the bid package and advised employees of HRS that he would be submitting property located on Bird Road for consideration for lease No. 590:1871. Linda Treml was the HRS employee who served as the contact person for the bid for Lease No. 590:1871. Ms. Treml conducted the pre-bid conferences and answered questions from potential bidders regarding the bid submittal forms. Several months earlier, perhaps during the summer 1986, Litowitz had met with Linda Treml regarding the possible lease of the Bird Road site, Ms. Treml had advised Litowitz that, at that time, HRS was not looking for space but that Litowitz would be added to their mailing list for future bid opportunities. Ms. Treml toured the Bird Road property with Litowitz as a courtesy visit for his inquiry. The bid submittal form for Lease No. 590:1871 required the proposed space be in an existing building. "Existing" was defined to specify the entire space to be dry and capable of being physically measured to determine net rentable square footage. Both the Colross and the Litowitz properties met this definition for an existing building at the time of the bid submittals. The bid submittal form for Lease No. 590:1871 required a minimum of 90 parking spaces to include a minimum of 80 full size spaces and 4 spaces meeting the Standards For Special Facilities For Physically Disabled found in Chapter 130-1, Florida Administrative Code. The required parking spaces did not have to be reserved for the exclusive use of HRS. Colross offered 62 exclusive spaces on site with 50 additional exclusive parking spaces located one block from the proposed facility. The Colross site plan for Building B (the bid property) established over 90 non-exclusive parking spaces available on site. The Litowitz property also had 90-plus non-exclusive parking spaces on site. HRS requested a clarification for the 50 exclusive spaces offered off-site by Colross. The verbal clarification was reduced to writing to confirm such spaces, if needed, would be at no cost to HRS. This written confirmation was not issued until March 31, 1987. HRS established a bid evaluation team to review the bids submitted for Lease No. 590:1871. This team, comprised of Janet Robinson, Dorea Sowinski, and Grace 0abolish, visited both the Litowitz and Colross properties. Subsequent to the site tours, they met in a conference room at Janet Robinson's office to discuss the bid evaluation process. This team was to make a recommendation as to which bid was the lowest and best. The recommendation was to be made based upon the evaluation criteria set forth in the bid submittal form. No other criteria were to be employed by the evaluation team. HRS has no guidelines which specified how each team member is to apply the evaluation criteria. The team recommendation would then be reviewed by George Smith and his superiors. Linda Treml advised the evaluation team not to consider the Litowitz property because it was outside the geographical boundary established by the invitation to-bid. The Litowitz property located on Bird Road is, in fact, outside of the advertised boundaries. The bid advertisement required the property to be considered for Lease No. 590:1871 to be within the stated geographical area. HRS did not, by act or omission, encourage Litowitz to prepare and submit a bid for a property known to be outside the defined boundary. HRS did not advise Litowitz that a property outside of the defined boundary would be disqualified. The bid evaluation criteria assigned a weighing value of 10 percent to the proximity of the offered space in the central or preferred area of the map boundaries. Litowitz mistakenly concluded that even though his property was not within the boundaries that he would lose only the 10 percent weighing factor when his property would be evaluated. HRS did not, by act or omission, affirm this erroneous interpretation. Because the Litowitz property was not within the defined geographical boundary, HRS disqualified the Litowitz bid. Accordingly, the Colross bid was the only bid left for consideration and was selected for Lease No. 590:1871. The interested parties were notified of this selection on or about March 19, 1987. The Colross bid included a higher rental fee than the Litowitz bid. HRS rejected a third bid for Lease No. 590:1871 submitted by Brookhill Capital Resources (hereinafter "Brookhill") since it was missing certain documents which had to be submitted by the time of the bid opening. The Brookhill bid included a lower rental fee than the Litowitz bid. The Brookhill property was within the advertised boundary. HRS selected the Colross property and deemed it the lowest and best bid since the Litowitz and Brookhill properties had to be disqualified. Members of the bid evaluation team preferred the Colross property for Lease No. 590:1871. HRS did not waive the boundary requirement for Lease No. 590:1871. Employees of HRS completed a bid synopsis which listed data on all three bidders for lease no. 590:1871 even though two of the bidders, Litowitz and Brookhill, had been disqualified, HRS reserved the right to reject any and all bids when such rejection would be in the interest of the State of Florida. Janet Robinson as the managing administrator of the disability determination office set the geographical boundaries for the invitation to bid. The boundaries were established in consideration of the needs and desires of the employees of the disability determination office.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Theodore C. Boldt, was a professional land surveyor registered by the State of Florida under license Number LS002387, granted after examination on July 9, 1976, with an expiration date of January 31, 1989. The Department of Professional Regulation, Board of Professional Land Surveyors, (Board), was and is the state agency charged with the regulation of land surveying in this state. On August 5, 1985, the Board entered a Final Order in which it concluded Respondent had violated various sections of the Florida Statutes and Rules. The Board suspended Respondent's license to practice land surveying for six months and, inter alia, required him to submit twenty-five surveys representative of his land surveying practice, accompanied by field notes and record plats for review by the Board. Respondent has submitted fifteen of the surveys, the first ten of which were accepted by the Board. Survey eleven through fifteen, however, were determined to be unsatisfactory. On the basis of that Board determination, an Administrative Complaint was filed in this case alleging that the five surveys failed to meet minimum acceptable standards and thereby constituted a violation of Florida Statutes. The surveys in question were evaluated by Walter A. Paxton, Jr., a registered land surveyor for fifteen years, who has spent a total of thirty-five years in the surveying field. During the course of his career, he has done several thousand surveys and has never had a complaint filed against him. As a part of his practice, he keeps up with the Rules and Standards of the profession by review of agency bulletins and letters and by taking continuing education seminars. Mr. Paxton graded these surveys utilizing a Minimum Standards Probation Report Checklist which identified numerous items for evaluation and grading. Grades available included violation; acceptable, which means that the answer meets the requirements of the rules; not applicable, which means that the subject matter does not pertain to the case under consideration; and marginally acceptable, which refers to an error of a minor nature, such as a typographical error, which is not a true violation of the Rule setting forth minimum standards. With regard to the first survey evaluated, Survey Exhibit 11, Mr. Paxton found one violation. Under the pertinent rule, each survey must fall into a descriptive category to be designated on the drawing. In this case, Respondent described the survey as a "Boundary" survey when, in fact, it should have been described as "As Built." A "Boundary" survey is generally utilized only for raw acreage and this property had a structure built on it. Mr. Paxton also found one marginally acceptable item in that the survey did not reflect the relevant Rule under which the survey was conducted. As to Survey Exhibit 12, Mr. Paxton found two violations. Again, the type of survey described was wrong and the survey failed to show the lot dimensions on the West side of the final drawing. The field notes reflected 81 feet for the West side of the lot. Of the four marginally acceptable issues, the first dealt with the completeness of the survey and relates to the Respondent's failure to put in the total dimensions as described above. In the second, the drawing failed to show the bearings on the finished product. The third relates to Respondent's failure to indicate the adjoining lot and block number on the South side of the drawing. The fourth pertains to Respondent's failure to reflect the Rule number in his certification. This last was a deficiency in each of the five surveys in question. As to survey Number 13, Mr. Paxton found one violation which again related to Respondent's use of the term "Boundary" survey instead of "As Built" on a survey of a lot on which a structure has been erected. Two marginally acceptable items related to the failure to show the Rule in the certification and Respondent's failure to list both lot and block when identifying lots adjacent to the property under survey. This, too, is a repeat deficiency. In the fourth survey, Number 14, Mr. Paxton found three violations and three marginally acceptables. The violations related to the Respondent's failure to show a Block identification on the survey and his showing only of the lot number. The second was that Respondent's field notes did not indicate a closure on elevation, but instead, showed only the elevation from the benchmark to a point on the ground. Respondent admitted this was a violation. The third related to Respondent's failure to indicate the original benchmark on the drawing but only the site benchmark. In this case, Respondent admits to this but indicates he could not find the original benchmark because of the distance from the site of the survey. He described the search therefor as being "hard" to do. The marginally acceptable items on this survey again relate to Respondent's failure to show the Rule number in the certification portion of the survey; his failure to include the Block number in addition to the Lot number on the sketch; and his failure to identify adjoining property Lot and Block numbers on the drawing. The fifth survey contained two violations and four marginally acceptable items. The violations were, again, the failure to properly describe the survey as "As Built", and the failure to indicate angles on the field notes. The four marginally acceptables relate to the Respondent's failure to refer to the Rule in his certification; his failure to indicate the block number as well as the lot number on the sketch; the failure to maintain acceptable quality field notes (the failure to list the angles as required); and the failure to reflect on the second sketch of this property a revision date indicating the first sketch was changed. Based on the above identified violations and marginally acceptable items, Mr. Paxton concluded that the surveys in question here do not meet the acceptable standards of the State of Florida for surveys and it is so found. Respondent does not deny that the actions alleged as violations or marginally acceptable areas occurred. He objects, however, to the fact that they were described as violations. Mr. Boldt has been in the surveying profession for 49 years, having started with his father at the age of 10. It is his practice not to put the Block number on a survey unless Lots beside or behind the Lot being surveyed are in a different Block. This practice has been accepted by various banks and the county since he has been doing it and certainly since 1983, when the subject was made a matter of Rule. By the same token, banks and the county have also for years accepted without question his use of the descriptive term, "Boundary" for the type of survey. Accepted use is irrelevant, however, if the rules in question prescribe otherwise. From his testimony it can only be gathered that Respondent complies with the Rules "when he can." When Mr. Paxton pointed out that the requirements identified here appear in the Rules of the Board, Respondent pointed out that the Rules were "new Rules". This approach to the profession of land surveying, while satisfactory to him, is not acceptable when measured against the Board rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor in Florida be suspended for 18 months with such suspension to be stayed for a probation period of 18 months under such terms and conditions as the Board of Professional Land Surveyors may specify. RECOMMENDED this 29th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 Theodore C. Boldt 5424 Hayden Blvd. Sarasota, Florida 33582 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Land Surveyors 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Respondent violated various disciplinary provisions, including the Uniform Standards of Appraisal Practice, in preparing a real estate appraisal and, if so, what penalty should be imposed.
Findings Of Fact Background At all material times, Respondent has been a state certified general real estate appraiser, holding license number RZ 0001017. While employed by Appraisal First, Inc., Respondent prepared an appraisal for the Resolution Trust Corporation. The subject of the appraisal is property located at 4423 Palm Beach Blvd. in an area known as Tice in unincorporated Lee County. The purpose of Respondent's appraisal (Appraisal Report) was to estimate the market value of the fee simple interest in the property, based on the highest and best use of the property as of January 21, 1992. This is the effective date of the Appraisal Report. Pursuant to the directions of the Resolution Trust Corporation, "market value" is defined as: The most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller, each acting prudently, knowledgeably and assuming the price is not affected by undue stimulus. Implicit in this definition is consummation of a sale as of a specified date and passing the title from seller to buyer under conditions whereby: --buyer and seller are typically motivated; --both parties are well informed or well advised, and each acting in what he considers his own best interest; --a reasonable time is allowed for exposure in the open market; --payment is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and --the price represents the normal consideration for the property sold unaffected by special or creative financing or sales concessions granted by anyone associated with the sale. This definition seeks a value estimate in terms of cash or its equivalent. The terms of all comparable transactions should be identified, analyzed and reported in reasonable detail. If any sales utilized as comparable were influenced by financing terms or concessions, they must be adjusted to their cash equivalent price. Moreover, all units of comparison extracted from these sales must reflect the cash equivalent price. The property consists of an L-shaped, 24,500 square-foot parcel with 125 feet of frontage on Palm Beach Blvd. The rear of the property runs 50 feet along Bessie Avenue. Palm Beach Blvd. is State Road 80, which is a major arterial connecting downtown Ft. Myers with I-75. The property, which is west of the I-75/State Road 80 interchange, is about two miles east of downtown Ft. Myers. At the time of the subject appraisal, State Road 80 was four lanes, but was being widened to six lanes east of the subject property to I-75. The front two-thirds of the subject property is zoned commercial, with the remainder (fronting Bessie Ave.) zoned residential. The commercial zoning permits commercial and residential uses. The residential zoning permits small- lot, single-family detached residential uses, with almost no commercial uses. Under the comprehensive plan, the subject property is designated Central Urban, which presumably permits mixed uses. The subject property comprises two tax parcels. Tax parcel #280 consists of an owner-occupied apartment in a commercial building fronting on Palm Beach Blvd. and a detached walk-in cooler. The apartment has one bedroom and two bathrooms. All of the improvements were built in 1959 and last sold in March 1977 for $35,000. In 1991, Lee County assessed tax parcel #280 at $28,000 for the land and $40,000 for the improvements. Tax parcel #250 consists of a two-story apartment building consisting of four units on the first level and two units on the second level. The apartment building has an attached walk-in freezer and limited commercial space fronting on Palm Beach Blvd. These improvements were built in 1950 and last sold in January 1984 for $22,400. The apartments are all one bedroom and one bath. In 1991, Lee County assessed tax parcel #250 at $42,000 for the land and $40,000 for the improvements. The Appraisal Report The Appraisal Report describes the nature and location of recent development activity in the area as follows: "Development along Palm Beach Blvd. has been primarily light commercial with the newest activity nearest the Interstate." Appraisal Report, p. 18. (All page numbers refer to the page handwritten in the stamped space in the lower right-hand corner of the exhibit.) The Appraisal Report continues: Proceeding west on Palm Beach Blvd. [from I- 75 toward Ft. Myers], the closer to . . . Tice, the more blighted and undesirable the area becomes. The Blvd. appears dominated by roadside motels . . . which were popular in the 1950s. The remaining commercial businesses in use are small mom & pop operations including hardware, bakery, and filling stations. The overall condition rating of commercial improvements within Tice is rated "Fair" which is consistent with the subject improvements. There are numerous vacant and abandoned structures as evidenced by an excessive number of "For Sale" and "For Lease" signs for such a small area. Although the existing commercial usage fronting Palm Beach Blvd. in Tice appears to be in a declining cycle, the low income resi- dential rental unit demand is healthy. Our rental survey conducted in the income approach revealed high occupancy levels along with stabilized rents for 1bed/1bth units in fair-average condition. As later discussed in the highest and best use analysis, apartment dwellings compatible with the C-2 zoning would tend to be the most profitable use of vacant sites in lieu of commercial development. Appraisal Report, pp. 18-19. Addressing the rehabilitation of the Tice area, the Appraisal Report adds: "The event of commercial rehabilitation throughout the area does not appear likely in the foreseeable future. The probable future trend is to supply the low income residential demand which is increasing within the neighborhood." Appraisal Report, p. 21. The Appraisal Report describes the site improvements, excluding buildings, as concrete/asphalt paving for rear parking, access from front (Palm Beach Blvd.) to rear (Bessie Ave.) via a dirt road in the rear, a dock-level loading ramp into the cooler, and a chain-link fence enclosing the sides and rear of the property. The Appraisal Report describes the zoning as C-2, ignoring the rear portion of the property that is zoned residential. This is an immaterial omission under the circumstances. The Appraisal Report notes that tax parcel #250, which is the two- story apartment building with attached freezer, contains 3360 square feet of leasable space, excluding the freezer. Three of the four first-story apartments are in "poor- fair" condition, and the fourth is in "poor--totally gutted" condition. The two upstairs apartments are in "average" condition. The report states that the freezer is "functional" and contains 576 square feet of space. The Appraisal Report states that there is no heating or cooling system in the apartment building, except for window units in the second story. The report advises that none of the first- story units meets the minimum building codes. The Appraisal Report states that tax parcel #280, which is the commercial space, was built in 1950 and contains about 2448 square feet of leasable area, including a 600 square-foot one bedroom/one bathroom apartment. The Appraisal Report states that half of the commercial space is unfinished open space with exposed ceilings and walls. The report adds that the electrical service does not meet minimum building code requirements and that there is no heating or cooling except for a window unit. The Appraisal Report states that the detached cooler is about 900 square feet and operational. Summarizing the condition of the improvements on the subject property, the Appraisal Report concludes: Overall, the existing improvements are observed to be in poor to average condition with the exception of the second level apartment units that are rated average. The improvements appear to have nearly exhausted their economic life and are in need of major rehabilitation to achieve the property's highest and best use "As Improved" as later discussed. Excluding the freezer and cooler, the improvements would require the restoration of the property to satisfactory condition without changing the plan, form or style of the structure. The value approach[e]s will later address all forms of depreciation within the structure with related impact on market value. Appraisal Report, p. 28. Citing The Dictionary of Real Estate Appraisal (2d ed.), the Appraisal Report defines "highest and best use" as: The reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supported, financially feasible, and that results in the highest value. The four criteria the highest and best use must meet are legal permissibility, physical possible [sic], financial feasibility, and maximum profitability. Appraisal Report, p. 33. Because the subject property is improved, the Appraisal Report states that the analysis of highest and best use will consider the property first "As Though Vacant" and ready for development and then "As Improved." Id. Analyzing the subject property as though vacant, the Appraisal Report determines that the potential uses for the site are "essentially commercial/residential," based on zoning and designation in the comprehensive plan. Appraisal Report, p. 35. Again stressing the commercial downturn in Tice, the report states the surrounding multi-family residential rental apartments remain strong. . . . Despite the condition of improvements which ranged from poor to average, both occupancy levels and rents appeared stabilized. As of appraisal date, residential multi-family development conforming to the legal and physical site requirements represents the Highest and Best Use of the site "As Vacant." Id. Addressing the subject property with its current improvements, the Appraisal Report restates the need for "major rehabilitation" for "optimum fulfillment of the existing uses." Appraisal Report, p. 35. The report mentions the negative contribution of the existing improvements. Noting the current depressed commercial market in Tice, the report states that "the highest and best use of the site would be to convert and rehabilitate the existing improvements into a low-income rental complex." Id. at p. 36. There are three basic approaches to appraising real property: market data, income, and cost. The market data approach requires the appraiser to find sales of similar properties and compare them to the subject property. By adjusting the comparables' sales prices, the appraiser estimates the value of the subject property. The income approach requires the appraiser to find the market rent for similar buildings and applicable capitalization rate. Then, the appraiser estimates the subject property's net income and, using the applicable capitalization rate, converts the net income into estimated value. The cost approach requires the appraiser to estimate the reproduction cost of the improvements, subtract estimated depreciation, and add the estimated market value of the site. The first approach used in the Appraisal Report is the cost approach. To find the value of the site without improvements, Respondent used the market data approach to find comparables to the subject site "As Vacant." He found two sales and one listing. The limited number of raw-land sales was due to the built-up nature of the area, according to the Appraisal Report. The sales took place in June and October, 1990, and the listing had been on the market continuously from November 1990 through February 1992. The first comparable of raw land is at Ortiz Ave. and Palm Beach Blvd., about three blocks east of the subject property. Sold in October 1990 for $100,000, the 18,225 square- foot parcel brought $5.49 per square foot. The parcel was a used car lot with a 1070 square-foot sales office. As noted by Petitioner's expert, Respondent misstated the area of the first comparable. Because it really contained 25,245 square feet, the sales price was $3.96 per square foot. The second comparable of raw land is at Terry St. and Palm Beach Blvd., about 10 blocks west of the subject property. Sold in June 1990 for $115,000, the 17,280 square-foot parcel brought $6.45 per square foot. The parcel was partially asphalted with a chain-link fence and 576 square-foot garage. The third comparable of raw land is at Palm Beach Blvd. and Palmetto Ave., "approximately 9 blocks east of the subject" property. Appraisal Report, p. 45. As is clear from the area map on page 17, however, the third comparable is nine blocks west of the subject property. Listed at $127,900, the 25,577 square-foot parcel was priced at $5.00 per square foot. The third comparable is raw land and originally listed for $6.00 per square foot. After adjustments, the price of each comparable ranged from $4.34- $4.76 per square foot. Obviously, Respondent's error on the first comparable, when combined with the small number of comparables, contributed materially to his perception of a recent decline in the local commercial market. Analyzing the details of the two transactions and one listing, the Appraisal Report finds that high- profile commercial sites had depreciated from mid-1990 to early 1992. Finding good support for the mid-range value, Respondent selected $4.50 per square foot for the subject property's Palm Beach Blvd. frontage, which consists of 17,500 square feet. Without discussion or explanation, Respondent halved the value of the 7000 square feet fronting on Bessie Ave., so that it was valued at $2.25 per square foot. The result was that the market value of the subject property was $95,000. The next step in the cost approach required Respondent to add to the value of the raw land the reproduction cost of improvements, less depreciation. Using a standard valuation service, Respondent estimated the reproduction costs of the improvements on each tax parcel separately, due to the differences in the age of the improvements on the two parcels. The 3360 square feet of apartments on tax parcel #250 yielded a reproduction cost estimate of $84,000. The freezer yielded a reproduction cost estimate of $12,000. Less depreciation of 88 percent and 75 percent respectively, the Appraisal Report finds that the reproduction costs of the buildings on tax parcel #250 equal $13,100. The 2448 square feet of commercial space on tax parcel #280 yielded a reproduction cost estimate of $62,424. The cooler yielded a reproduction cost estimate of about $17,000. The Appraisal Report treats the one bedroom/two bathroom apartment on tax parcel #280 as part of the commercial space. Less depreciation of 88 percent, the Appraisal Report finds that the reproduction cost of the commercial building on tax parcel #280 equals $7491. The report neglects to carry over the $17,000 unadjusted cost of the cooler and calculate the post-depreciation value of $4250. Estimating the adjusted cost of site improvements at $1250 ($5000 less 75 percent depreciation) and the indirect costs of taxes and financing fees at $1400, Respondent's "total reproduction cost estimate" is $23,168." (Some of the above- described numbers have been rounded off.) Adding the total reproduction cost estimate of $23,168 to the estimated land value of $95,000, Respondent determines that the total development cost is $118,168. Adding a 5 percent factor for developer profit or cost overruns, the total value under the cost approach is rounded off to $125,000. Appraisal Report, p. 59. The Appraisal Report discloses that the market data approach could not be used. The report explains: Extensive market research revealed no bona-fide sales of mix-use properties similar to the subject (i.e., containing apartments, commercial space, and refrigerated storage space) were available for analysis. Therefore, without sufficient sales data the MARKET APPROACH WAS OMITTED AS A VALID APPROACH FOR THIS APPRAISAL. However, submitted for later use in the Income Approach are Small Residential sales of apartment buildings containing four (4) units or less. Appraisal Report, p. 60. Under the income approach, the Appraiser Report finds that the current rents derived from the apartments, which are $9900 annually, are market rate and require no adjustment. The report analyzes the commercial space as commercial storage, rather than commercial retail, due to the unfinished nature of the improvements. The report then derives a market rental rate for the entire commercial area of $9096 annually. Respondent used 1576 square feet for the total combined refrigerated area, rather than the 1476 indicated in the earlier discussion. (Cf. Appraisal Report pp. 54 and 55 with p. 75.) In any event, he calculated an annual rental of $8880 from the cooler and freezer units. After making appropriate adjustments for collections and vacancies, the report estimates that the effective gross income from the subject property is $21,458. Without actual expense data, Respondent reduced the gross income projection by estimated expenses, leaving annual net operating income of $13,728. To convert the net operating income into value, Respondent derived an income capitalization rate from comparable sales of apartment units, based on his determination that the highest and best use of the site "As Improved" is conversion of the existing mixed uses into apartment units. Appraisal Report, p. 79. None of the four comparables is located on Palm Beach Blvd., although all are within two or three blocks of the artery. This fact undermines Respondent's determination of highest and best use and, in this approach, his derived capitalization rate. In any event, Respondent calculates a capitalization rate range of 10 percent-13 percent and wisely chooses 13 percent. Applying the derived capitalization rate of 13 percent to the net operating income of $13,728, the Appraisal Report calculates an indicated value, as is, of $105,000 under the income approach. The Appraisal Report next reconciles the values found under each of the approaches: $125,000 under the cost approach and $105,000 under the income approach. The report sensibly deemphasizes the cost approach, given the relative large amounts of depreciation involved. Instead, the report stresses the income approach as "the most likely investment scenario in which an investor would purchase the existing improvements." This approach is driven by Respondent's choice of highest and best use, which, as noted below, is questionable. Concluding that an investor "would likely be attracted to the subject property not for the existing improvements but alternatively converting all uses into apartment rentals," the Appraisal Report concludes that the value of the fee simple of the subject property is $105,000, as indicated in the income approach. The Review At the request of Petitioner, Richard L. Armalavage conducted a review of the Appraisal Report from April through July 1993 (Review). The effective date of the review is June 15, 1993, but it is intended to reflect market conditions as of January 21, 1992. In the introductory summary, the Review notes that, with one immaterial exception, the items in the Appraisal Report are "in compliance." However, the Review characterizes several items as "minimally acceptable." These items include Respondent's treatment of the highest and best use of the subject property. The Review states: "[Respondent's c]onclusion is that current use is interim; highest and best use is residential multi-family." Review, p. 8. The Review first focuses on Respondent's determination of highest and best use. The Review states: My analysis of the neighborhood and the subject property leads me to the conclusion that the highest and best use of subject is for commercial use. The existing improvements are substantially depreciated, with a limited economic life estimated at five years, or an interim timeframe until future use is more clearly defined for the subject property. The subject neighborhood is in the process of transformation, but has been in general decline for the past several years. The neighborhood appears to be stabilizing, with redevelopment currently taking place and expected to continue in the future. . . . [With respect to area buildings, t]he condition of many of the properties has been deteriorating, and property value has stabilized or in some cases declined. There has been a sharp increase in crime in this area, and many families and businesses have moved to alternative locations. . . . As a result of these factors, it is difficult to forecast the probable future use of subject and surrounding properties. However, it is apparent the neighbor- hood is stabilizing and improvement will occur to the market. The betterment of Palm Beach Boulevard will be a stimulant in the future growth of this neighborhood. Due to its close proximity to the central business district of Ft. Myers, and near proximity to the Caloosahatchee River and I-75, it is certain this area will improve in future years. The subject neighborhood is disjointed, and a hodge- podge of mixed-use properties in varying stages of economic life. As a result, it is difficult to analyze and requires extensive research and compar- ative analysis. Uses along Palm Beach Boulevard are mostly commercial, with scattered industrial or other forms of business related uses. Most properties fronting along Palm Beach Boulevard in subject's immediate area are auto related, such as used car lots, transmission repair, body shops, etc. Commercial use consistent with zoning is the reasonable and logical highest and best use of the property. There are no indications of alter- native uses that would yield maximum returns to the property, and consistent use with the surrounding neighborhood. There is absolutely no trend of residential use for properties along Palm Beach Boulevard, and it does not appear future use will be residential apartments. Although subject's optimum use, as improved, is for future redevelop- ment to intensive commercial use, the existing improvements are suitable for commercial use on an interim basis. The ideal use will be more clearly established in the near future, but it will not be residential rental apartments. Even though the subject and surrounding neighborhood are difficult to analyze due to general age and condition, there is extensive market data of a consistent type to utilize for valuation purposes. The [Appraisal Report] concludes the highest and best use is for residential rental apartments. This conclusion stymied the appraiser, since it is nearly impossible to document, analyze and support an estimate of value for the subject property on this basis. My survey and analysis of the market produced sufficient information to result in an adequate and reasonable conclusion of value as a commercial use property. A better description of the property and the problems affecting the neighborhood, along with a more intense survey of market data would have allowed the appraiser to provide adequate support for a supportable opinion of value. The highest and best use of subject is for use of the existing improvements on an interim basis, with future redevelopment for retail and office uses. The existing improvements can be utilized for retail use and storage. I have analyzed subject in accordance with this conclusion. Review, pp. 12-13. The Review commences with an analysis of the value of the raw land, as part of the cost approach. The Review estimates the value of the raw land at $104,000, not $95,000 as stated in the Appraisal Report. The Review's estimate is based on 10-20 listings and five land sales, including the two land sales used in the Appraisal Report. The Review corrects the Appraisal Report by substituting 25,245 square feet and $3.96 per square foot for 18,225 square feet and $5.49 per square foot that Respondent had incorrectly stated for one of his sales. The Review does not segregate value between the portion of the property fronting Palm Beach Blvd. and the rear portion of the property along Bessie Ave. The Review explains that the bulk of the zoning is commercial, and the rear portion supports the commercial use of the front portion. However, the RS-1 zoning for the rear third of the subject property allows almost no commercial uses in a district that is intended to be reserved for small-lot, single-family detached residences. The Review presumes the availability of rezoning. The Review does not find as "unreasonable" the $9000 disparity between the estimated values of the raw land in the Review and Appraisal Report. But the Review states that the limited number of sales and the mistakes in the computation of the area of one of the comparables "decreases the adequacy of the [Appraisal Report]." Review, p. 33. The five sale comparables used in the Review are all along Palm Beach Blvd., within 1.5 miles of the subject property. Three of the comparables are raw land. The other two comparables have immaterial improvements. As for the cost valuation, the Review ignores the second-story apartments. If Mr. Armalavage is correct (unlike Respondent, he could not inspect the apartments due to the nature of his assignment), the condition of the upstairs apartments had deteriorated from average at the time of the Appraisal Report to uninhabitable at the time of the Review. The apartment building is in "total disrepair" and the plumbing requires "total reinstallation" in order to comply with code. As of its effective date, rather than the effective date of the Appraisal Report, the Review concludes that the logical use of the apartment is storage or rehabilitation and reconstruction for retail storefront units. After making the appropriate adjustments, the Review finds that the total value of the depreciated improvements, including developer profit, is $25,300. With land value of $104,000, the value under the cost approach is $129,000, which is about $4000 higher than Respondent's result under the cost approach. After correcting for Respondent's omission of the cooler, the two estimates are about the same, but, again, the Review concludes that the Appraisal Report is deficient due to limitations in analysis attributable to "inadequate reporting and numerous errors." Review, p. 51. The biggest difference between the Appraisal Report and the Review is that the latter includes an estimate of value based on the market data approach. The Review includes six improved building sales, which were culled from a survey of about 15 sales of improved property near the subject property. The Review warns: Although each of the properties has unique characteristics making them dissimilar in many ways, they are similar enough to reflect a reasonable estimate of value for the subject property. At the very least, the sales information is helpful in establishing a range of values (brackets value) for the subject property in its improved condition. The omission of the Market Data Approach in the [Appraisal Report] is the most glaring mistake in the analysis. There is extensive market information available for analysis, even though much of it is somewhat dissimilar to subject due to unique characteristics. The omission of this approach in the [Appraisal Report] is considered detrimental in the correlation process for estimating value of the subject property. In the case of subject, the large amount of market data available for analysis is quite beneficial in corroborating value, and contributes in the other approaches for estimates of depreciation in the cost approach, and economic life and rent potential in the income approach. The omission of this approach in the [Appraisal Report] is considered an unacceptable departure from the basic reporting requirements set forth by the Appraisal Foundation. Review, p. 56. The Review finds that the value of the subject property, under the market data approach, is somewhere between $122,500 and $134,750 and finally estimates the value as $128,000. Turning to the income approach, the Review notes that the subject property is, as of early 1993, used as a storage operation with the residential apartment located in the commercial building in use, but with the apartment buildings unused and unusable. The Review again rejects residential use, either in the future or, based on the current condition of the improvements, even on an interim basis. The Review states that the highest and best use of the property is commercial, either unimproved retail and storage in its current condition or retail storefront after rehabilitation. The cost of rehabilitation would be about $15 per square foot and would add about 5-10 years to the useful life of the building. The useful life of the present improvements, "as is," is about five years. The Review forecasts operating incomes based on two alternatives. In "as is" condition, the Review calculates that the gross income would be about $20,000 annually. After expenses, the net operating income would be about $10,000 annually. In the alternative, the Review analyzes the income of the property if converted to conventional storefront. The gross income would be about $34,892 annually. After expenses, the net operating income would be about $20,300 annually. Deriving a capitalization rate of 11 percent, the value of the net income of the property "as is" is $91,000. The value of the net income of the property, if renovated, is $184,500. After adjustment for the cost of renovations, the final value of the renovated property is $113,000. The Review concludes that, based on the income approach, the estimated value of the subject property is $91,000- $113,000, which is ultimately estimated to be $100,000. The Review then reconciles the values of $129,000 from the cost approach, $128,000 from the market data approach, and $100,000 from the income approach. Noting that "[d]emand for this location appears to be disjointed, and there is no clear trend of future use patterns at this time," the Review estimates that the value of the subject property is $120,000. The Review asserts: The subject property is best suited for an owner/user of the property with future renovation to an alternative form of commercial use. Minimal renovations could extend the useful life of the improvements by five, possibly ten years. The age and condition of the subject improvements weakens the valuation of subject by the cost approach, and the limited income producing capabilities of properties in this general location weaken the income approach. There are numerous sale properties to utilize for comparison with subject, however, the sales required numerous adjustments which reduces the effectiveness of the market comparison approach. Even so, the extent of sales information has a significant influence in the valuation. As a result, I have given consideration to all three approaches to value, with greatest weight on the Market Data Approach. Review, p. 90. The Review concludes with a final discussion of the Appraisal Report and alleges that Respondent violated the provisions that he is charged with violating in the Administrative Complaint. The Uniform Standards of Professional Appraisal Practice The Uniform Standards of Professional Appraisal Practice (USPAP) sets forth standards of practice for appraisers. USPAP Standard 1 is: "In developing a real property appraisal, an appraiser must be aware of, understand, and correctly employ those recognized methods and techniques that are necessary to produce a credible appraisal." The accompanying "comment" explains that the development of a "competent appraisal" is a product of the "requirements" of USPAP Standards Rules 1-1 and 1-5 and the "appraisal guidelines" of USPAP Standards Rules 1-2, 1-3, and 1-4. USPAP Standards Rule 1-1 requires, among other things, that an appraiser "not commit a substantial error of omission or commission that significantly affects an appraisal" and "not render appraisal services in a careless or negligent manner, such as a series of errors that, considered individually, may not significantly affect the results of an appraisal, but which, when considered in the aggregate, would be misleading." USPAP Standards Rule 1-1(b) and (c). The comment accompanying USPAP Standards Rule 1-1(c) "explains" that carelessness or negligence is "not excuse[d]" by the fact that the carelessness or negligence does not cause an error that "significantly affects [the appraiser's] opinions or conclusions." However, nothing in USPAP suggests that the comments are part of the rules. USPAP Standards Rule 1-3 sets forth the following "appraisal guidelines" that an appraiser "must observe": consider the effect on use and value of the following factors: existing land use regulations, reasonably probable modifications of such land use regulations, economic demand, the physical adaptability of the real estate, neighborhood trends, and the highest and best use of the real estate; recognize that land is appraised as though vacant and available for development to its highest and best use and that the appraisal of improvements is based on their actual contribution to the site. The comment to USPAP Standards Rule 1-3(a) states in part: Further, an appraiser must avoid making an unsupported assumption or premise about neighborhood decline, effective age, and remaining life. In considering highest and best use, an appraiser should develop the concept to the extent that is required for a proper solution of the appraisal problem being considered. The pertinent portion of USPAP Rule 1-4 sets forth the following "specific appraisal guidelines" that the appraiser "must observe," "when applicable": value the site by an appropriate appraisal method or technique; collect, verify, analyze, and reconcile: such comparable cost data as are available to estimate the cost new of the improvements (if any); such comparable data as are available to estimate the difference between cost new and the present worth of the improvements (accrued depreciation); such comparable sales data, adequately identified and described, as are available to indicate a value conclusion; such comparable rental data as are available to estimate the market rental of the property being appraised; such comparable operating expense data as are available to estimate the operating expenses of the property being appraised; such comparable data as are available to estimate rates of capitalization and/or rates of discount. The comment to USPAP Standards Rule 1-4(b) states that it "covers the three approaches to value." USPAP Standards Rule 2-2(h), (j), and (k) states that "each written real property appraisal report must": (h) set forth the information considered, the appraisal procedures followed, and the reasoning that supports the analyses, opinions, and conclusions; * * * explain and support the exclusion of any of the usual valuation approaches; set forth any additional information that may be appropriate to show compliance with, or clearly identify and explain permitted departures from the requires of Standard 1[.] The comment under USPAP Standards Rule 2-2(h) explains that the requirement: calls for the appraiser to summarize the data considered and the procedures that were followed. Each item must be addressed in the depth and detail required by its significance to the appraisal. The appraiser must be certain that sufficient information is provided so that the client, the users of the report, and the public will understand it and will not be misled or confused. The substantive content of the report, not its size, determines its compliance with this specific reporting guideline. The comment under USPAP Standards Rule 2-2(k) adds: This requirements calls for a written appraisal report or other written communication concerning the results of an appraisal to contain sufficient information to indicate that the appraiser complied with the requirements of Standard 1, including the requirements governing any permitted departures from the appraisal guidelines. The amount of detail required will vary with the significance of the information to the appraisal. * * * Ultimate Findings There is no evidence that Respondent is guilty of culpable negligence or breach of trust in the preparation of the Appraisal Report. There is some evidence that Respondent failed to use reasonable diligence in the preparation of the Appraisal Report. However, based on all the circumstances, Petitioner has not proved by clear and convincing evidence that Respondent has violated this statutory provision. The closer questions are presented by the USPAP. The allegations concerning USPAP Standard 1 are that Respondent omitted a required valuation approach and was careless in his analysis and selection of methodologies in producing a credible appraisal. The USPAP rules specifically cited in the Administrative Complaint set forth "guidelines" and requirements. The guidelines cover the identification of the highest and best use of the subject property and the use of the three conventional approaches to valuation. The requirements are that the appraisal report state the information considered, the appraisal procedures followed, and the reasoning in support of the analyses, opinions, and conclusions; explain and support the exclusion of any of the usual valuation approaches; and state any additional information appropriate to show compliance or justify noncompliance with the "requirements" of Standard 1. The valuation approaches and determination of highest and best use are crucial elements of an appraisal. Respondent selected residential use as the highest and best use of the subject property. However, there has been no residential redevelopment in the area, and the value of frontage on Palm Beach Blvd. suggests a commercial use. Even on an "As Improved" basis, the subject property does not seem to find its highest and best use in residential uses. The apartments were in bad shape when Respondent appraised them and not surprisingly became worse over time. Code violations rendered continued habitation of the apartments a questionable proposition. The cooler and freezer were in good working order, and less would be required to maintain the existing space as commercial storage. On the other hand, Mr. Armalavage's solution is not unassailable. It requires rezoning one-third of the property (The residential zoning of the rear third of the property was uncovered by Mr. Armalavage, not Respondent.) The crime described in the Review would seem to affect retail, especially storefront, commercial as much as residential. The problem Respondent and Mr. Armalavage faced in determining the property's highest and best use is one of timing. It is unlikely that the highest and best used of the subject property will ultimately be residential, given the arterial frontage and emerging commercial nature of the area. However, interim uses must also be considered, especially given the transitional nature of the area. Mr. Armalavage's interim commercial uses seem more reasonable than Respondent's interim residential uses, but this is in part due to developments after the Appraisal Report. On balance, though, Petitioner has not proved by clear and convincing evidence that Respondent, in identifying the subject property's highest and best use, failed to observe the guideline of consideration of the highest and best use of the subject property, or that Respondent failed to recognize that the appraisal of the improvements is limited to their actual contribution to the site. Likewise, Petitioner has not proved by clear and convincing evidence that Respondent, in identifying the subject property's highest and best use, failed to set forth the highest and best use or the reasoning that supported his determination. Respondent's reasoning is not highly persuasive, but it is present. To borrow Mr. Armalavage's phrase, Respondent's efforts in determining the subject property's highest and best use are "minimally acceptable." Respondent also made numerous sloppy mistakes in his analysis. His use of the cost approach to valuation was particularly sloppy. He omitted a $4250 item. He made a large error on one of two actual sales. Magnified by the small sample size, the error may have contributed to Respondent's perception of commercial depreciation, which may have helped mislead him as to the highest and best use of the property. Without significant analysis, Respondent arbitrarily halved the value of the rear third of the property. On the other hand, Mr. Armalavage's cost approach presumes without discussion the rezoning of the rear third of the subject property. The Review also considers the condition of the apartments as they were at the time of the Review, not as they were at the time of the Appraisal Report. However, Mr. Armalavage's comparables for the raw land are far superior to Respondent's comparables and, perhaps more than any other factor, signal a lack of effort on Respondent's part, at least in preparing the cost approach. Despite the superior quality of the Review when compared to the Appraisal Report as to the cost approach, the difference in their final values is $4000--which is eliminated if one adds to Respondent's cost valuation the depreciated value of the omitted cooler. Respondent's income approach is impaired by two factors. Given the condition of the apartments, his residential rental values are too low, although this deficiency is partly offset by Respondent's selection of a relatively high capitalization rate. Obviously, an investor purchasing improvements at the end of their useful lives would demand a relatively rapid return of his investment. Second, Respondent secures questionable comparables, partly due to his determination of highest and best use. Respondent chose apartment complexes that varied from the subject property's apartment building in three important respects: condition, size, and location. On the other hand, Mr. Armalavage's income approach raises questions in his reliance upon conversion to relatively profitable storefront uses, in a crime-infested area, and a relatively low capitalization rate, given the transitional nature of the area and, in the "as is" alternative, the poor condition of the improvements. Under the income approach, the Appraisal Report estimates the value of the subject property, "as is," at $105,000. Under the same approach, the Review estimates the value of the subject property, "as is," at $91,000 and, if renovated as storefront retail, at $113,000, with a final estimate of $100,000. The difference between Respondent's value and Mr. Armalavage's value is between $5000-$14,000. The biggest objection of Mr. Armalavage to the Appraisal Report is its omission of the market data approach, which is typically the cornerstone of a real estate appraisal. Respondent's decision to omit the market data approach was due to his claimed inability to find true comparables. There is some inconsistency in Respondent's inability to find suitable comparables for the market data approach and his ability to find suitable comparables for deriving a capitalization rate and market rents under the income approach. However, the suitability of the comparables used in the income approach may be judged by looser standards because they were used, in this case, to determine a capitalization rate, which appears to exist in a fairly narrow range, and a market rent for merely the residential component of the subject property. Respondent's inability to find comparables is partly justified by the unique nature of the subject property, which derived, at the time of the Appraisal Report, substantial value from residential, general commercial storage, and refrigerated storage uses. In a small urban market, the subject property allows few, if any, comparables that do not require so much adjustment as to obscure the initial hard data (i.e., sales prices) behind a miasma of price adjustments based upon layer after layer of presumptions on the part of the appraiser. Again, Respondent's failure may be evaluated in the context of the market data approach used by Mr. Armalavage, who himself describes the neighborhood as "disjointed" and a "hodge- podge of mixed-use properties in varying stages of economic life." These features impede all aspects of appraisal, from selecting highest and best use to finding comparables. But Mr. Armalavage reasons that the difficulty of the task means only that more effort must be expended to find the appraisal solution. In finding comparables for his market data approach, Mr. Armalavage concedes that they are dissimilar in many ways, but are "similar enough to reflect a reasonable estimate of value." Implicitly acknowledging that his comparables may not similar enough even for that purpose, though, Mr. Armalavage adds in his next sentence: "At the very least, the sales information is helpful in establishing a range of value " After consideration of such variables as location, condition of improvements, current use, highest and best use, prices, and date of sales, Petitioner failed to establish by clear and convincing evidence that the comparables cited in the Review were of such a nature as to preclude the omission of the market data approach in the Appraisal Report. The Review reaches values of $129,000 under the cost approach, $128,000 under the market data approach, and $100,000 under the income approach and concludes that the value of the property is $120,000. The Appraisal Report reaches values of $125,000 under the cost approach and $105,000 under the income approach and concludes that the value of the property is $105,000. The discrepancy of $15,000, or 14 percent, between the two final value estimates, which is attributable to the final reconciliations performed by each appraiser, is not significant. The absence of a significant discrepancy is not determinative of the outcome, especially where, as here, the appraised property is of relatively low value. But the significance of discrepancies between the challenged appraisal and the appraisal offered by Petitioner is still a factor in evaluating the extent to which Respondent has complied with the applicable professional standards. In this case, Respondent's analysis was often flawed, but the mistakes--even cumulatively--were immaterial. Also, the subject property was a difficult appraising challenge, given the age, condition, and varied types of improvements and the uncertain future of the area. On balance, Petitioner failed to prove by clear and convincing evidence that Respondent's appraisal, although likely inferior to Mr. Armalavage's appraisal, violated any of the cited provisions of law governing the preparation of appraisals.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Board of Real Estate Appraisers enter a final order dismissing the Administrative Complaint against Respondent. ENTERED on September 16, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on September 16, 1994. COPIES FURNISHED: Darlene F. Keller, Division Director Division of Real Estate West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Theodore R. Gay Department of Business and Professional Regulation Division of Real Estate Rhode Building, Phase II NW 2d Avenue N607 Miami, FL 33128 Kevin J. Lindheim, pro se 9200 Bonita Beach Rd., Suite 210 Bonita Springs, FL 33923
The Issue At issue herein is whether or not Petitioner correctly responded to Case VI on Part II of the Land Surveyors Examination, and if so, whether he should have received a passing grade.
Findings Of Fact Based upon my observation of the Petitioner and his demeanor while testifying, depositions and other documentary evidence received, and the entire record compiled herein, the following relevant facts are found: Petitioner, Garland R. Hardwick, was a candidate for the Land Surveyors Examination administered October 29 and 30, 1901. Case VI, a legal description, constituted a portion of the examination given on October 30, 1981. (Testimony of Petitioner) Case VI required the examinee to prepare a legal description of the portion of a road right-of-way which cut across a lot within a platted subdivision for inclusion in a right-of-way deed. (Petitioner's Exhibit 2 and the deposition of David Gibson, page 8) The examinee was further asked to "calculate any quantities needed." The credit given for Case VI was 20 points. As drafted, Case VI called for certain calculations to be performed by the examinee. The type of calculations required depended on the description provided, i.e., metes and bounds or strip conveyances. A strip form of conveyance required description and calculation of the center line. (Gibson deposition, pages 11-12) A portion of the credit given on Case VI was for calculations. If a strip form description were used in Case VI, the minimum calculations required for credit were those of the arc length (center line) and the radius. If these minimum calculations were not performed by an examinee having prepared a strip form or center line description, no credit was given to the examinee. (Deposition of Gibson, pages 14-19) Petitioner's response to Case VI is a strip or center line description. Petitioner did not calculate or describe the distance along the arc of the center line, or the right-of-way as it cut across the lot in question. Petitioner therefore received no credit on Case VI for calculations. (Testimony of Petitioner [TR pp 6-8] and Petitioner's Exhibit No. 2) David Gibson, an examination consultant who was solely responsible for the drafting and grading of Case VI, gave his expert opinion that the required calculations of examinees preparing a strip, or center line description, were consistent with the standards of the profession. (Gibson deposition, page 16) PETITIONER'S POSITION During the hearing, Petitioner related that no calculations or descriptions of the distance along the arc of the center line for Case VI were needed, and in support thereof, referred to examples of strip descriptions filed within Report 4, Metes and Bounds Descriptions by Fant, Freeman and Madson, a book referred to on the suggested book list provided to examinees. petitioner cited Cases 33 and 37 within the above-referred text as being examples similar to Case VI on the examination. The sample description given in Case 33 provides calculations and distances along the center line of the right-of-way. (Testimony of Petitioner, TR pages 6, 8, 15-20, and Petitioner's Exhibit 3) Further, Petitioner points to the fact that in the event of a dispute the boundary line of the adjoining lot would control over the distance of the center line of the right-of-way. Case 33 of the above referred reference book appeared similar to Case VI of the subject examination. (Testimony of Petitioner, TR p. 16) In that example, center line distances are calculated and "would enable the surveyor to locate this strip . . . help him maintain the identity of this parcel or strip." (Petitioner's testimony TR p. 17) Case number 35 and others referred to during the hearing by Petitioner (save Case 33) were, at best, limited in similarity and would not require a different result. (TR p. 20)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, Board of Land Surveyors, enter a Final Order denying Petitioner's request and the relief sought to the effect that he be awarded a passing grade on the Land Surveyors Examination administered to him on October 29 and 30, 1981. RECOMMENDED this 8th day of February, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 1983.
The Issue The issue in the case is whether the Department of Transportation's rejection of all bids in this case meets the requirements of law.
Findings Of Fact In August 1996, the Department sought bids for several road projects to be constructed in Bradenton, Florida. The projects were identified as State Project Numbers 13160-3512, 13160-6501, 13160-6502, and 13160-6512. The construction project includes utility relocation work to be performed on behalf of the Manatee County, the City of Bradenton, and GTE, the owners of various utilities within the project area. In preparing for road construction projects, the Department enters into joint partnership agreements with utility owners. The agreements identify the responsibilities of the parties related to performance of utility relocation/construction work related to the road project. Essentially, the owner and Department determine an estimated cost for the utility construction which the owner places into escrow and the Department assumes the responsibility for obtaining bids for the utility work. In the event that the bid exceeds the escrowed estimated cost, the utility owner may withdraw from the agreement. Upon such withdrawal, the joint partnership agreement provides that the owner may perform the work itself or the Department can pay the amount in excess of that which the owner has escrowed. If the Department agrees to pay the "excess" cost, the utility work remains included in the bid project. If the Department does not pay the "excess," the work is performed by the utility owner in accordance with the Department's construction schedule, and is deleted from the final contract negotiated with the winning bidder. Six companies filed bids in relation to the projects at issue in this proceeding, including Gator Asphalt Co., APAC- Florida, MacKenzie E.T. Company, Westra Construction Corporation, Smith and Co., Inc., and the Petitioner. The Petitioner's bid of $6,586,034.13 was the low bid submitted. The Petitioner has been properly prequalified by the Department to perform the work that is the subject of the bid at issue in this proceeding. The date upon which the bids were opened is unclear, but by October 4, 1996, the bids had been opened and tabulated. By letter dated October 4, 1996, the Department notified the City of Bradenton of the bid tabulation. Although the estimated cost of work to be performed on behalf of the city was about $400,000, the letter indicates that the total amount of the deposited escrow should be $534,160.50. The letter provided a deadline of October 10 to provide certification to the Department that the funds had been escrowed. Although the Department's letter of October 4 does not address whether the Department was willing to pay the "excess," the request for additional city funds indicates that the Department was not offering to pay the additional costs associated with the work. By letter dated October 9, 1996, the City of Bradenton withdrew its participation from the project. The city portion of the work was State Project Number 13160-6501. The Department's technical review committee met on October 9, 1996. The committee reviews bid proposals and makes a recommendation to the awards committee. There is no reliable evidence of what occurred during the technical review committee meeting. No one who attended the technical review committee meeting testified at the hearing. At the hearing, a witness who did not attend the meeting reviewed minutes of the committee meeting and testified as to what the minutes appeared to indicate. The minutes were not offered into evidence. The awards committee met on October 15, 1996. There is no reliable evidence of what occurred during the awards committee meeting. No one who attended the awards committee testified at the hearing. Despite the lack of information as to what occurred during the committee meetings of October 9 and 15, the evidence establishes that the Department made no attempt to recalculate the bid amounts after the City of Bradenton withdrawal. On November 4, 1996, the Department posted notice of its intention to reject all the bids for State Project Numbers 13160-3512, 13160-6502, and 13160-6512. Four bids exceeding the maximum acceptable bid established by the Department were rejected. Two bids, including the Petitioner's, were rejected as nonresponsive for failing to meet requirements related to utilization of "Disadvantaged Business Enterprises" (DBE) in the project. The Petitioner filed a timely protest of the Department's proposed rejection of all bids. The Department requires that each bid proposal either meet specific goals for DBE utilization or include an adequate "good faith effort" package identifying the efforts made by the bidder to meet the goal. The DBE goal for these projects was 12 percent of the total bid amount. Failure to either meet the DBE goal or submit an adequate "good faith effort" package renders a bid submittal nonresponsive. The evidence establishes that the Petitioner's bid was nonresponsive for failing to meet the DBE requirements. The parties have stipulated that the Petitioner's proposal did not include an adequate "good faith effort" package. The Petitioner's bid identifies DBE participation as 11.3 percent of its total bid. The Petitioner's total bid amount included the utility work for the City of Bradenton. The Petitioner asserts that a specification set forth in the bid package requires that the Department recalculate the bid proposals by deleting the City of Bradenton work from the project. Article 3-1 of the Supplemental Specifications issued as part of the bid package at issue in this proceeding, states as follow: The Department reserves the right to delete the bid portion of the utility relocation work from the Contract. Deletion of any utility relocation work from the Contract will require the Contract bid tabulations to be recalculated based on the remaining project quantities. According to calculations made by the Petitioner, reducing the amount of his total bid by the cost of utility work related to the City of Bradenton, results in his DBE participation rising to 11.9777 percent of the revised total. The DBE reporting form supplied to bidders by the Department states that the "[g]oal may be rounded to the nearest tenth percent," indicating that his 11.977 percent could be rounded up to 12 percent. The Petitioner asserts that the withdrawal of the City of Bradenton from the project and the rounding of the goal results in his bid meeting the DBE requirement of 12 percent. The language of Article 3-1 of the Supplemental Specifications is applicable, not to bid proposals, but to the contract negotiated between the successful bidder and the Department. In practice, the Department has implemented this provision according to the specification language. Items specifically related to withdrawn utility relocation work are deleted from the contract negotiated with the successful bidder. The evidence fails to establish the Petitioner is entitled to recalculation of his bid proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation issue a Final Order dismissing the protest filed by the Petitioner in this case. RECOMMENDED this 18th day of February, 1997, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997. COPIES FURNISHED: Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Brant Hargrove, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Mary S. Miller, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
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. /
Findings Of Fact The Respondent, at all times material to the Administrative Complaint in this proceeding, was a land surveyor licensed by the State of Florida, having been issued license number 1305. The Respondent is also a licensed professional engineer and a licensed architect. The Petitioner is an agency of the State of Florida charged under Chapter 472, Florida Statutes, and appurtenant rules with the licensure and regulation of licensure status of land surveyors in Florida and the regulation and enforcement of their practice methods and standards. The Board of Land Surveyors published "Minimum Standards for Land Surveyors (Rule 21HH-6) effective September 1, 1951. The Respondent was unaware of the promulgation of those minimum standards. The Respondent had not attended meetings of the "Manasota" Chapter of the Florida Society of Professional Land Surveyors at which those standards were discussed and a checklist for the standards was distributed. On August 24, 1982, the Respondent prepared a land survey of a part of Lot 306, Overbrook Gardens, in Sarasota County. The survey was submitted to the Sarasota County Building Department in connection with an application for a building permit pertaining to that real property, filed on August 26, 1982. The offenses charged are alleged violations of the minimum standards with respect to that survey. The Respondent's client had delivered to him a survey prepared by Lemonde Surveying, Inc., of Port Charlotte, Florida, which was prepared on February 28, 1980. That survey contained a metes and bounds land description. The client engaged the Respondent to survey the same parcel of land with that description and provide a survey drawing to be used in conjunction with an application for the subject building permit. The survey gas not certified by the Respondent in accordance with minimum standards. The Respondent admitted this and it was undisputed that the signature and seal of fixed on the survey complied with the legal requirements enforced before the adoption of the abovementoned minimum standards, of which the Respondent was unaware. The Respondent admitted to failure to refer to all sources of information upon which the survey was predicated. The Respondent used a legal description from a previous survey provided him by Darrell Newell, the contractor who was agent for the owner of the property. The survey the Respondent submitted to the building department only showed the name of the owner. The older survey submitted by the Respondent's client was his only source of information in this regard. The parties stipulated that the allegation regarding failure to show measured distances to the nearest intersection was incorrect and that indeed the Respondent had shown the distance to the nearest intersection. The Respondent failed to show the location of a telephone company underground terminal pedestal and an abandoned wire fence of unstated dimensions which is outside the surveyed property near the north and east boundaries. The fence does not encroach on the surveyed property at all. The telephone terminal pedestal is approximately one foot or less in height, located just inside the northerly boundary of the property, approximately midway between the two northerly corners. The telephone terminal was not visible at the time of the survey due to high grass, weeds, and undergrowth covering the property when the fieldwork was conducted by the Respondent's survey party chief. The triangular parcel of property involved was located with reference to an established, identifiable real property corner. All three corners were monumented prior to the survey by the Respondent, so that the location of boundaries near the abandoned, partial, non-encroaching fence could be established with reasonable certainty. On September 15, 1932, personnel of the county building department charged with the responsibility of issuing the building permit for the property requested advice with regard to the efficacy of Respondent's survey from Mr. Emerson, the County Surveyor, who testified for the Petitioner. Mr. Emerson spoke with the Respondent by phone and mailed him copies of the "minimum standards" and the "Surveyor's Checklist" of the Manasota Chapter of the Florida Society of Professional Land Surveyors, which relates to those minimum standards in the rule cited below. The Respondent then promptly and voluntarily prepared a new survey which fully complied with those minimum standards which he had at that point first become aware of, and the building permit was duly issued to the Respondent's client. The Respondent's client's interests were not shown to be prejudiced and the complaint to the Board of Land Surveyors did not emanate from the Respondent's client, but rather from Mr. Emerson of-the county building department, who did not bother to consult the Respondent or obtain his explanation prior to lodging the complaint with the Board. The survey originally submitted to the Sarasota Count Building Department would have been adequate support for the issuance of the building permit before adoption of the minimum standards. The survey was shown to be totally adequate in terms of its substance and reflection of technical surveying competence, as opposed to the particular format prescribed by the minimum standards. This is the first disciplinary action ever taken against the. Respondent as a land surveyor licensee, and the Respondent's practice of his profession has always been characterized by a high degree of technical competence and professional integrity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent, William J. Lindh, be accorded the penalty of a private, written reprimand for violation of Rule 21HH-6.03(1) and (6),,Florida Administrative Code, and Section 472.033(1)(g) , Florida Statutes (1951) , and that the Administrative Complaint, in all other respects, be dismissed. DONE ADD ENTERED this 31st day of October, 1983, in 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 31st day of October, 1983. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles J Cheves, Esquire Cheves & Rapkin 341 West Venice Avenue Venice, Florida 33595 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NO.: 83-512 vs. LICENSE NO: 1308 WILLIAM J. LINDH, Respondent. /
