The Issue Eleven separate petitions were filed pursuant to section 120.535, F.S. alleging various non-rule policies of the Board of Professional Land Surveyors and requesting that those alleged policies be adopted by rule. The threshold issue in these cases is whether such policies exist; if so, it must be determined whether they are rules, as defined in section 120.52(16), and whether rulemaking is feasible and practicable, as provided in section 120.535(1), F.S. CASES NUMBER 94-0609RX - 94-0616RX The eight petitions in these consolidated cases are challenges to specific provisions within Chapter 61G17-6, F.A.C. (formerly 21HH-6, F.A.C.), "Minimum Technical Standards", relating to the practice of land surveying, adopted by the Board of Professional Land Surveyors. The issue in these cases is whether those specific provisions are invalid exercises of delegated legislative authority, as alleged by Petitioner. CASE NUMBER 94-0925F In this case, Respondent seeks attorney's fees and costs from counsel for Petitioner pursuant to section 120.57(1)(b)5., F.S. The issue, therefore, is whether an award under that section is appropriate. OTHER ISSUES Respondent does not dispute the standing of Petitioner in the sections 120.535 and 120.56, F.S. cases. Petitioner, in his proposed order, argues that he, not Respondent, is entitled to fees and costs. Petitioner also argues that his subpoena were properly served by mail on various board members. Those two issues are thus addressed in this order.
Findings Of Fact Gary A. Burden (Burden) is a professional land surveyor registered in the state of Florida pursuant to Chapter 472, F.S. The parties have stipulated that he is substantially affected by the rules of the Board of Professional Land Surveyors (Board). On June 22, 1993, the Department of Professional Regulation (now, Department of Business and Professional Regulation, DBPR) issued an administrative complaint alleging that Burden failed to follow minimum technical standards for land surveying in a boundary survey he performed for Lot 33, Lafayette Forest, in Seminole County, Florida. The complaint alleged seven specific deficiencies and cited the Board rule which applies to each. (Petitioner's exhibit Number 9) The seven specific violations are identified in a consultant's report dated April 1, 1993, from Dianne Jones, PLS, to the Board. (Petitioner's Number 10) Burden requested a formal hearing on the complaint and the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH Case Number 93-6433. On February 14, 1994, Hearing Officer, Ella Jane P. Davis issued an order on all motions pending as of that date. The order includes these pertinent provisions describing discussions at a January 20, 1994, conference call between the hearing officer and counsel for the parties: The undersigned also advised the parties that the instant Section 120.57(1), F.S. proceeding was not the appropriate vehicle to raise what appeared to be challenges in existing rules named in Respondent's affirmative defenses and that challenges to existing rules can only be initiated pursuant to Section 120.56, F.S. Further, the parties were informed that challenges to existing rules could not and would not be resolved by the Recommended Order to be entered in the instant Section 120.57(1), F.S. license disciplining proceeding. After hearing oral argument, the undersigned further requested that the parties file their respective memoranda as to whether the instant case had any Section 120.535, F.S. ramifications. Shortly after the January 20th telephone conference, Gary Burden, through counsel, filed the nineteen petitions that are the subject of this proceeding. The eleven petitions filed pursuant to section 120.535, F.S. request that these alleged policies of the Board be promulgated as formal rules: The Board's refusal to allow land surveyor registrants to incorporate other recorded instruments into their drawings by reference; The Board's determination of what constitutes "substantial compliance" to the minimum technical standards; The Board's application of a "substantial compliance" standard to probationary registrants, but a "strict compliance" standard to accused registrants. The Board's assessment of a single penalty, no matter how major or minor the offense; The Board's refusal to utilize the simple citation rule found at rule 61G17-9.004, F.A.C. (providing for disciplinary citation and fine); The Board's refusal to allow its registrants to mitigate damage to the public. The Board's equating the determination of boundaries to real property to the words contained in recorded deeds and plats; The Board's equating the standards of practice for "corners" with the standards of practice for "monuments". The Board's need to define the meaning of the term, "fixed improvements"; The Board's requirement that lot and block numbers be shown on a survey drawing in a specific location; and The Board's requirement that registrants measure distances and directions to "reference points". Burden did not testify at hearing, nor did he appear in person at the hearing. His single witness, Benjamin Paul Blackburn, has been registered as a land surveyor since 1969. Blackburn has been before the Board once on allegations of minimum technical standard violations, and the charges were dismissed; he has attended two Board meetings in the last year, and attended once in 1981 when the Board was promulgating rules. He has been an active member of the state professional association and was president of the association in the past. Blackburn was an articulate and sincere witness; however, he has no competent knowledge of the policies of the Board. His information comes from talking with other surveyors and from attending training seminars sponsored by the association. He freely admits that he has no direct knowledge of many of the policies alleged by Burden; in some instances his understanding of the Board's policy is contrary to that alleged by Burden. For example, Blackburn believes the Board has allowed surveyors to mitigate damages; he also believes the Board allows incorporation by reference on surveys and maps. Counsel for Burden attempted to compel the appearance of Board members by mailing subpoena to them, certified mail, with witness checks enclosed. On the advice of counsel that the service was defective, the members did not appear. Documents sought by the subpoena duces tecum were voluntarily produced by the Board's Executive Director, an employee of the DBPR, Angel Gonzalez, to the extent that he was able to obtain the documents and records. Diane Jones has been registered as a land surveyor for seven years and worked as an intern in the field for fifteen years. She has been employed by DBPR in the past as a consultant in cases the agency brings to the Board. She was a consultant in the Burden case. Ms. Jones was unable to confirm that the alleged policies were, in fact, Board policies. Her understanding was similar to Blackburn's, generally. In her capacity as consultant to DBPR in discipline cases, she has no difficulty interpreting and applying the minimum technical standards or other rules of the Board, based on her knowledge of the rules and her professional experience. In addition to alleging unwritten policies by the Board, Burden challenges a series of existing Board rules which he claims are invalid exercises of legislative delegation. For each rule that is a subject of his petitions, he claims invalidity based on excess of rulemaking authority, enlargement or modification of the law, vagueness and capriciousness. More specifically, Burden claims the following: a) Rules 61G17-6.002(2) and 61G17-6.002(6)(g), F.A.C. (defining "corner" and "land or Boundary Survey", respectively) illegally attempt to grant the land surveyor the right to establish or re-establish "boundary lines"; b) Rule 61G17-6.003(4), F.A.C. illegally requires a basis of bearing to be shown; c) Rule 61G17-6.003(8)(a), F.A.C. is non-specific about the location of lot and block numbers on a survey drawing; Rule 61G17-6.003(15), F.A.C. illegally requires land surveyors to state certain unnecessary data for survey corners. Rule 61G17-6.003(18), F.A.C. illegally requires the land surveyor to place almost all abbreviations in a legend or not use such abbreviations; Rule 61G17-6.003(13), F.A.C. illegally requires the land surveyor to show unidentified "fixed improvements"; Rules 61G17-6.003(8)(c) and (d) illegally require a land surveyor to perform a comparative analysis to reference points other than those described at Rule 61G17-6.002(5), F.A.C.; and Rule 61G17-6.003(10), F.A.C. illegally requires the land surveyor to show adjoining elements and rights of way which are shown on instruments incorporated by reference into the survey drawing. 11. Rules 61G17-6.002(2) and 61G17-6.002(6)(g) provide: (2) Corner: shall mean a point on a land boundary that designates a change in direction, for example: points of curvature, points of tangency, points of compound curvature and so forth. . . . (6) Survey: shall mean the orderly process of determining data relating to the physical or chemical characteristics of the earth, and may be further defined according to the type of data obtained, the methods and instruments used, and the purpose(s) to be served. All surveys showing land boundary information must be in accordance with Rule 61G17-6.003. For purposes of this rule, types of surveys shall include the following definitions: . . . (g) Land or Boundary Survey: shall mean a survey, the primary purpose of which includes, but is not limited to, the determining of the perimeters of a parcel or tract of land by establishing or re-establishing corners, monuments, and boundary lines for the purposes of describing, locating of fixed improvements, or platting or dividing the parcel. According to Blackburn, the deed rather than the surveyor establishes the land boundaries. This argument or fact does not provide a basis to invalidate the rules as the rules do not require or allow a surveyor to create boundaries as an extent of legal possession. Rather, the purpose of the rules is clearly stated in (6)(g). The language of the rules is consistent with treatises and textbooks that are nationally recognized. The American Congress on Surveying and Mapping (ACSM) and the American Society of Civil Engineers (ASCE) jointly adopted this definition in 1978: Land surveying is the art and science of: (1) Re-establishing cadastral surveys and land boundaries based on documents of record and historical evidence; (2) planning, designing and establishing property boundaries; and (3) certifying surveys as required by statute or local ordinance such as subdivision plats, registered land surveys, judicial surveys, and space delineation. Land surveying can include associated services such as mapping and related data accumulation; construction layout surveys; precision measurements of length, angle, elevation, area and volume; horizontal and vertical control systems; and the analysis and utilization of survey data." (Respondent's exhibit Number 2) 12. Rule 61G17-6.003(4), F.A.C. provides: (4) A reference to all bearings shown must be clearly stated, i.e., whether to "True North"; "Grid North as established by the NOS"; "Assumed North based on a bearing for a well defined line, such as the center line of a road or right of way, etc."; "a Deed Call for a particular line"; or "the bearing of a particular line shown upon a plat." References to Magnetic North should be avoided except in the cases where a comparison is necessitated by a Deed Call. In all cases, the bearings used shall be referenced to some well-established line. Both parties' experts agree that the purpose of this rule is to relate the property surveyed to an established line so that subsequent surveyors could retrace or reconstruct what the surveyor did with regard to angles and the like. "Assumed north" is simply a direction assumed and does not relate to a compass direction. If only angles are shown, and no bearings, the rule does not apply. Bearings are a way of indicating angular relationships; an angle can be developed from the bearings. The rule legitimately fulfills its purpose of avoiding ambiguity. 13. Rule 61G17-6.003(8)(a), F.A.C. provides: Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: The lot(s) and block numbers or other designation, including those of adjoining lots. This is not a complicated rule. Showing the lot numbers helps interpret and orient the map. Even though the title of the survey or text on the survey may identify the lot number of the lot being surveyed, including the number on the face of the drawing makes the survey easier to read. 14. Rule 61G17-6.003(15), F.A.C. provides: (15) The surveyor shall make a determination of the correct position of the boundary of the real property and shall set monuments, as defined herein, unless monuments already exist at such corners. All monuments, found or placed, must be described on the survey drawing. When the property corner cannot be set, a witness monument shall be placed with data given to show its location upon the ground in relation to the boundary lines or corner. The corner descriptions shall state the size, material, and cap identification of the monument as well as whether the monument was found or set. The distance along boundaries between monuments shall not exceed fourteen hundred feet. When a parcel has a natural and/or an artificial feature such as a roadway, river, lake, beach, marsh, stream or other irregular boundary as one or more of its boundaries, then a monument meander or survey line shall be established either directly along or near the feature. Dimensions shall be shown between the meander or survey line and the boundary line sufficient to show the relationship between the two. Even though monuments may be accidentally or deliberately moved by contractors, property owners or neighbors, the monuments are still an important feature of a survey. A prudent surveyor would not rely on an existing monument without looking for signs of disturbance and verifying its placement. The efficiency of showing and describing a monument outweighs any danger of including it. 15. Rule 61G17-6.003(18), F.A.C. provides: ABBREVIATIONS: Abbreviations generally used by the public or in proper names that do not relate to matters of survey are excluded from the legend requirement. Acceptable abbreviations on the face of maps, plats, or survey drawings are: N = North S = South E = East W = West or any combination such as NE, SW, etc. . = Degrees ' = Minutes when used in bearing " = Seconds when used in a bearing ' = Feet when used in a distance " = Inches when used in a distance AC = Acres + = More or less (or Plus or Minus) Any other abbreviations relating to survey matters must be clearly shown within a legend or notes appearing on the face of the drawing. Blackburn contends that the legend requirement is time-consuming, expensive and unnecessary. A surveyor, however, is not required to use abbreviations. To the extent that they are used, they should be explained on the face of the document. A legend facilitates interpretation of the survey and eliminates questions or ambiguities. The rule establishes some clear exceptions to the legend requirement in subsection (b). According to Diane Jones, subsections (a) and of the rule are vague and confusing. In her opinion, every abbreviation that is not addressed in subsection (b) should be explained in a legend on the survey. She, therefore, would prefer to see everything explained on the face of the document, while Petitioner prefers to dispose of the legend altogether. Reasonable minds plainly differ; although the rule could be improved with rewording, as suggested by Ms. Jones, it is not invalid for the reasons advanced by Petitioner. 16. Rule 61G17-6.003(13), F.A.C. provides: (13) Location of fixed improvements pertinent to the survey shall be shown upon the drawing in reference to the boundaries, either directly or by offset lines. If fixed improvements are not located or do not exist, a note to this effect shall be shown upon the drawing. Pertinent improvements are improvements made for the enjoyment of the property being surveyed and shall include docks, boathouses, and similar improvements. According to Blackburn, inclusion of fixed improvements on the survey should depend on what the client has ordered. He also feels the rule results in surveys that are misleading to the public as the inclusion of any fixed improvements would imply that those are the only fixed improvements in the area. These concerns are mutually inconsistent. The rule is clear and unambiguous. It is also consistent with accepted principles of land survey practice. 17. Rules 61G217-6.003(8)(c) and (d), F.A.C. provide: (8) Surveys of all or part of a lot(s) which is part of a recorded subdivision shall show the following upon the drawing: . . . A comparison between the recorded directions and distances with field measured directions and distances to the nearest street centerline, right of way intersection or other identifiable reference points where the block lines are straight. A comparison between the recorded directions and distances or computed directions and distances based upon the recorded data with field measured directions and distances to an identifiable reference point where the block lines are curved. The requirements of these rules are clear to a practicing land surveyor. "Reference point" is described in rule 61G17-6.002(5), F.A.C. as ". . . any defined position that is or can be established in relation to another defined position." Contrary to Petitioner's assertion, there is no conflict between the requirements of (c) and (d), and the definition of "reference point". 18. Rule 61G17-6.003(10), F.A.C. provides: (10) All recorded public and private rights of way shown on applicable recorded plats adjoining or across the land being surveyed shall be located and shown upon the drawing. Easements shown on applicable record plats or open and notorious evidence of easements or rights of way on or across the land being surveyed shall be located and shown upon the drawing. If streets or street rights of way abutting the land surveyed are not physically open, a note to this effect shall be shown upon the drawing. If location of easements or rights of way of record, other than those on record plats, is required, this information must be furnished to the surveyor. This rule requires that specific information be included even when that information may already be found on material incorporated by reference, like a plat, for example. The rule serves the legitimate purpose of saving the user from time consuming research. The survey should stand alone as a complete document. In summary, the rules at issue are valid and reasonably clear and consistent with establishing principles guiding the practice of professional land surveying. According to Brown, Robillard, and Wilson, Evidence and Procedures for Boundary Location, 2nd Ed (Respondent's Ex. 2): A plat should tell a complete story; it should show sufficient information to allow any other surveyor to understand how the survey was made and why the survey was correct. It also should show complete information on encroachments to enable any attorney or others to evaluate properly the effect of continued possession. (p.350) . . . A plat should be complete in itself and should present sufficient evidence of monuments (record and locative) and measurements so that any other surveyor can clearly, without ambiguity, find the locative points and follow the reasonings of the surveyor. A plat does not show the client's land alone; it shows all ties necessary to prove the correctness of location. If it is necessary to measure from a mile away to correctly locate a property, that tie, as measured, is shown. (p. 360) There is no evidence in this proceeding that either party or attorney filed pleadings or papers for any improper purpose, such as delay harassment, increase in cost or otherwise. The petitions are numerous, but they relate to rules or alleged policies at issue in a separate disciplinary action, and, on their face, they raise legitimate issues. Respondent's defense was necessary and appropriate.
The Issue At issue in this proceeding is whether petitioner's application for licensure by examination as a professional land surveyor should be approved.
Findings Of Fact On November 18, 1988, petitioner, William Byron Groover (Groover), filed an application with respondent, Board of Professional Land Surveyors (Board), for licensure by examination as a professional land surveyor. By letter of March 28, 1989, the Board denied Groover's application predicated on his disclosure in his application of a conviction for possession of marijuana in 1981, and its conclusion that such conviction demonstrated a lack of good moral character and an adjudication of guilt of a crime directly related to the practice or ability to practice land surveying. Groover filed a timely request for formal hearing to contest the Board's decision. At hearing, the proof demonstrated that on September 16, 1981, Groover was convicted of possession of more than 20 grams of cannabis (marijuana), a third degree felony proscribed by Section 893.13, Florida Statutes, and on October 16, 1981, he was sentenced to a term of two years confinement and fined $2,000.00 for his offense. Regarding the circumstances surrounding his conviction for possession of marijuana, the proof demonstrates that in May 1981, Groover was assisting an acquaintance, James Billeter, move furniture from Florida to Arizona when Billeter's van was stopped by a Florida Department of Agriculture inspector after he failed to stop at an inspection station on I-10 in Suwannee County. Upon inspection of the van, boxes containing approximately 210 pounds of marijuana were discovered among the furniture in the van, as well as a "baggie" marijuana in the cab. Groover, whose testimony is credited, denied any knowledge that the van contained any controlled substances, other than the baggie of marijuana in the cab. As to the baggie, which contained about 21 grams of marijuana, Groover acknowledged its presence, and conceded that he and Billeter had smoked some of that marijuana on their trip. On July 5, 1982, Groover was admitted to Lawtey Correctional Institute to serve his sentence, and on July 5, 1983, he was released for having completed his sentence. During the course of his incarceration, Groover conducted himself in a responsible manner. Following his release from prison in 1983, Groover was employed by Berry and Calvin Land Surveying and Engineering, and remained so employed until May 1988 when he began his current employment with Stephen H. Gibbs Land Surveyor. By those who know of his work, Groover is considered learned in land surveying, dependable, and trustworthy. While Groover was convicted of possession of marijuana in 1981, he has since avoided any controlled substance, and has demonstrated his rehabilitation through dependable and laudable labor in the field of land surveying. Under the circumstances, his conviction in 1981 does not detract from the finding that he currently possesses the requisite good moral character to practice land surveying in the state of Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered approving the application of William Bryon Groover for licensure by examination as a professional land surveyor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of September 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2695 The Board's proposed findings of fact are addressed as follows: Addressed in paragraph 3. Subordinate. To the extent relevant, addressed in paragraphs 2 and 3. Addressed in paragraph 3. Not relevant since there was no showing Groover suffered any substance abuse or alcoholic problem necessitating treatment. Not relevant since not a basis for the denial of his application, and not an issue thereafter timely raised by the Board prior to hearing. Even if properly raised, such facts do not detract from the finding that Groover currently possesses the requisite good moral character to practice land surveying. Addressed in paragraph 5. Addressed in paragraph 3, otherwise rejected as subordinate or as comment on the evidence. COPIES FURNISHED: Mr. William Bryon Groover 892 Southwest 14th Court Fort Lauderdale, Florida 33315 Ann Cocheu Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Rex Smith, Executive Director Board of Professional Land Surveyors Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Respondent has been licensed to practice land surveying in Florida at all times relevant to this proceeding. However, between January 31, 1983 and August 27, 1983, his license was inactive due to his failure to renew. His license was reinstated automatically upon payment of the $80 biannual renewal fee in August, 1983, along with payment of a $20 late fee levied by Petitioner. On May 12, 1983, while his license was inactive, Respondent signed a boundary survey in his capacity as a registered land surveyor which included the following certification: "I hereby certify that the plat shown hereon is a true and correct representation of a survey of the property described in the caption thereof, made under my direction, and is accurate to the best of my knowledge and belief, and there are no encroachments unless shown." The property at issue was surveyed by Mr. Teddy O. Potter, who has a surveying business in West Palm Beach, but is not licensed as a land surveyor. Respondent is a former business associate of Potter's and certified the drawing as a favor to Potter. Respondent had not visited the property or participated in the boundary survey in any way. His certification was based on his inspection of the drawing and faith in Potter whom he had earlier trained. The property is owned by Mr. Thomas Burdsall who originally retained Potter to survey the property for mortgage purposes in 1979. The survey at issue here was required for the construction of a warehouse. Burdsall again contacted Potter who updated his 1979 drawing without resurveying the property. It should be noted that Respondent was not involved in the earlier survey, which was certified by another Potter associate. Utilizing Potter's boundary markers and the drawing certified by Respondent, Burdsall's contractor laid out the building and began construction. Potter then did a third (tie- in) survey revising the May 12, 1983 survey to show actual building placement. This tie-in survey revealed no encroachment. Subsequent to the tie-in survey, City inspectors observed what they believed was encroachment by the partially completed structure. A meeting was held and Potter agreed to call in a registered land surveyor to conduct a resurvey. Potter retained Mr. Robert Turso, a registered land surveyor, who conducted the resurvey and confirmed the suspected encroachment. As a result, it was necessary to remove and rebuild portions of the newly constructed building at considerable expense to the owner, Thomas Burdsall. The testimony of Petitioner's expert witness established that the survey certified by Respondent failed to meet certain minimum technical standards recognized in the land surveyors' profession which are set forth in Rule 21HH-6.03, Florida Administrative Code (F.A.C). Specifically, the following deficiencies were identified: 21HH-6.03(4), F.A.C., requires that reference to all bearings be shown and clearly stated. In the subject survey drawing, no bearings were shown. 21HH-6.03(6), F.A.C., requires the survey to comply with the real property description and all discrepancies with the boundary corners from the boundary lines shown by the survey are to be indicated. Here, the corners were not shown nor were the discrepancies between those corners and plat dimensions shown. 21HH-6.03(7), F.A.C., requires all angles to be shown directly on the drawing or by bearings or azimuths. In this survey, no angles were shown. 21HH-6.03(8), F.A.C., requires that the intersection and the distance to the nearest intersection be shown. These requirements were not met. 21HH-6.02(10), F.A.C., requires adjoining lots and blocks be shown in surveys of lots in recorded subdivisions. This requirement was not met. 21HH-6.03(18), F.A.C., requires monuments to be found or set. This was not accomplished, and no corners were shown on the drawing to be found or set. 21HH-6.03(19), F.A.C., requires boundary monuments be appropriately constructed, identified and set. This was not accomplished here.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order suspending Respondent's license as a land surveyor for a period of four months. DONE and ENTERED this 14th day of November, 1984 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 14th day of November, 1984. COPIES FURNISHED: Joseph Shields, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Esquire Executive Director Board of Land Surveyors 130 North Monroe Street Tallahassee, Florida 32301 Ralph G. Purvis Post Office Box 16084 West Palm Beach, Florida 33406 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph W. Lawrence, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether to approve the Petitioners’ application for a beneficial use determination (BUD) regarding their property on Ramrod Key, Florida, and if approved, to determine the type of relief that is appropriate.
Findings Of Fact The following findings of fact are taken from the parties’ joint pre-hearing stipulation, and the direct evidence adduced at the hearing. The Property The Petitioners’ property is located at 475 Brown Drive, Ramrod Key, in Monroe County. According to the Monroe County Property Appraiser, the size of the site is 0.95 acres. The property is vacant and contains disturbed and undisturbed wetland habitat. The property’s immediate vicinity is described as residential development of single-family units to the west and south, environmentally sensitive lands to the south and east, and open water to the north. The property is legally described as “being a portion of Tract ‘A’, Ramrod Shores Third Addition, according to the plat thereof, as recorded in Plat Book 6, Page 108 of the Public Records of Monroe County, Florida” having real estate number 00209971-004600. The property’s current Land Use Map Zoning Districts are Improved Subdivision (IS) and Native Area (NA). The property’s Future Land Use Map (FLUM) designations are Residential Medium (RM) and Residential Conservation (RC). The Tier Designation is Tier III Infill Area. Relevant Prior County Actions On December 19, 1972, the Monroe County Board of County Commissioners (BOCC) passed Resolution No. 146-1972 approving the Plat of Ramrod Shores Third Addition and filed for record in Plat Book 6 at Page 108 of the Public Records of Monroe County. The landowner was James M. Brown, as Trustee. The subject property is within Tract A of this plat. In 1986, Monroe County adopted a revised set of zoning regulations via Ordinance No. 33-1986. Ordinance No. 33-1986 also approved a revised series of zoning maps (also known as the Pattison Maps) for all areas of the unincorporated county by reference. With the adoption of the 1986 Land Development Regulations and zoning maps, most of the Petitioners’ property was designated as IS zoning with a small portion as NA. In 1992, a revised series of zoning maps were approved (also known as the Craig Maps) for all areas of the unincorporated county. With the adoption of the revised (Craig) zoning maps, the Petitioners’ property remained designated as IS with a small portion as NA. In 1993, the County adopted a set of FLUM maps pursuant to a joint stipulated settlement agreement and section 163.3184, Florida Statutes. BOCC Ordinance No. 016-1993 memorialized the approval. The FLUM maps took effect in 1997 after approval from the state land planning agency. With the adoption of the FLUM maps, the Petitioners’ property was designated as RM and a small portion as RC. On March 23, 2015, the Petitioners were provided a Letter of Current Site Conditions for the subject property. The letter summarized the environmental habitats on the property and the applicable portions of the Comprehensive Plan and Land Development Code. The letter stated the KEYWEP score for disturbed portions of the wetland was 4.45. The score of 4.45 means the property was buildable, disturbed wetlands. The undisturbed wetlands consist of tidal mangroves and were by definition “red flag” wetlands. Disturbed wetlands may be developed under section 118-10, Monroe County Code. Development is not permitted in undisturbed wetlands where 100 percent open space is required. On November 24, 2015, the Petitioners applied for a building permit to construct a single-family detached residential dwelling unit. On December 4, 2015, the County’s Planning and Environmental Resources Department (the Department) sent the Petitioners a notice that the Department denied their building permit application number 15106233. The notice informed the Petitioners that the Department’s decision may be appealed within 30 calendar days. No appeal was filed to challenge the propriety of the Department’s decision. The Department’s December 4, 2015, notice stated that the Ramrod Shores Third Addition Plat shows that the Petitioners’ property is located within Tract A. Although Tract A was subdivided into seven parcels, this was never shown as lots on an approved and duly recorded plat. The Department determined that the property did not meet the definition of “lot” in section 101-1, Monroe County Code, and did not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit. See § 130-157, Monroe Cnty. Code. On December 7, 2016, the Department received the agent’s BUD Application, File No. 2016-202. On December 22, 2016, the Department sent the agent a Notice of Deficiencies pursuant to section 102-105, Monroe County Code, after the application was reviewed by staff to determine if the application was complete and included the materials and information listed in section 102-105(b). On January 6, 2017, the Department received additional materials and information from the agent. On January 27, 2017, the Department notified the agent that the application was determined to be sufficient. On March 28, 2017, the Department forwarded the BUD application to DOAH for adjudication. After the Petitioners sought to amend their application with a new basis for relief, DOAH relinquished its jurisdiction. On June 12, 2017, the Petitioners submitted an Amended BUD Application to the Department. After sending a second Notice of Deficiencies and receiving additional materials and information from the agent, the Department determined that the application was sufficient. The Amended BUD Application was suspended for 60 days, pursuant to BOCC Resolution No. 214-2017, as a temporary emergency measure after Hurricane Irma made landfall in the Florida Keys on September 10, 2017. On November 9, 2017, the Department forwarded the BUD Application to DOAH for adjudication. Petitioners’ Actions The Petitioners purchased the subject property on April 23, 1990. Between 1990 and 1991, the Petitioners submitted an application to the Department of Health and Rehabilitative Services (HRS) for an on-site aerobic septic system. At first, the HRS denied the application based on lot size issues. The HRS Variance Review Board recommended disapproval of the septic system application on June 7, 1991, on the grounds of insufficient lot size and an illegal canal. After the Petitioners failed to obtain HRS approval in 1991, they took no further steps to develop the property until they submitted an application for a Letter of Current Site Conditions on January 30, 2015, and an application for a single- family residence on November 24, 2015. Mr. Olynger testified that the Petitioners purchased the property because of the ocean view and expected to build a house on the property. He testified that after the HRS denials in the early 1990s, he started the process of trying to develop the property again in 2014 because central sewer was now available. IS Land Use District Due to the density requirements for the IS Land Use District of one dwelling unit per lot, the Petitioners are unable to construct a single-family home, which is an as-of- right use in the IS Land Use District. The IS Land Use District permits other as-of-right and conditional uses. While Mr. Olynger disputed the economic productivity of some of these uses, it was not disputed that the property could potentially be used for (a) recreational purposes; (b) a community park; (c) beekeeping; (d) wastewater system; (e) Rate of Growth Ordinance (ROGO) points or transferable development rights (TDRs); or (f) sold to a neighbor for open space, yard expansion or an accessory use, such as a pool. Mr. Bond testified that that the County’s Comprehensive Plan and Code allow landowners competing for the limited number of building allocations in the point-based ROGO to buy and donate vacant parcels such as the subject property to increase their ROGO scores. The subject property qualifies as a ROGO Lot and there is an active secondary market of people buying and trading ROGO Lots in Monroe County. Mr. Bond also testified that the Petitioners could apply for Future Land Use Map and Land Use (Zoning) District Map amendments to a category that would allow for the construction of a single-family dwelling based upon an adopted acreage density standard. The Petitioners have not made any such applications. There was no direct evidence on the fair market value of the property, as encumbered by the regulation.2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny the Petitioners’ application for relief under section 102-104, Monroe County Code. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2018.
The Issue Whether Respondent, Andrew T. Edgemond, committed the offenses alleged in the Amended Administrative Complaint, and, if so, what discipline should be imposed against Respondent's land surveyor's license.
Findings Of Fact The Department is the state agency charged, in conjunction with the Board of Professional Surveyors and Mappers, with the responsibility to license, regulate, and discipline land surveyors in the State of Florida. Respondent is, and has been at all times material hereto, a licensed land surveyor in the State of Florida, having been issued license number LS 0002347. Respondent was initially licensed as a land surveyor in 1971 and has practiced land surveying in Plant City, Florida for more than twenty years. On or about March 22, 1989, Respondent was contacted by a client who requested that Respondent prepare a survey specifying the location of certain mono form boards. Mono form boards are temporary structures and are not fixed improvements, although they may be used to indicate where fixed improvements will be located. The client indicated that the survey was needed immediately because the client was to have a slab of concrete poured before the next morning. Prior to conducting the survey, Respondent asked his client for a legal description of the property on which the form boards were located. The client provided Respondent with a copy of a building permit which contained a reference to a preliminary plat. Respondent then went to City Hall in Plant City, Florida where he obtained a preliminary plat which included the property on which the form boards were located. After leaving the City Hall, Respondent went to his office to determine where the property was located. In researching the files in his office, Respondent found a boundary survey which included a property line which was coincident with the property the client had asked him to survey. Having obtained the building permit, preliminary plat, and the boundary survey, Respondent went into the field to measure the location of the form boards. Upon returning to his office, Respondent prepared a survey which indicated the location of the mono form boards. The survey, dated March 22, 1989, was signed and sealed by Respondent. On the survey was the following: "SPECIFIC PURPOSE SURVEY" "FOR BUILDING PERMIT PURPOSES ONLY" The survey drawing contained a preliminary description as follows: PRELIMINARY DESCRIPTION Lot 22 of WALDIN LAKE UNIT 55 as per "Preliminary Plat" on file in City Engineers office, City of Plant City, Florida. Respondent made the decision to designate the survey a specific purpose survey after he reviewed Rule 21HH-6.002, Florida Administrative Code. After reviewing the various types of surveys outlined in the rule, Respondent concluded that a survey done solely to provide a client with the location of mono form boards that were already in place came within the definition of a specific or special purpose survey. A specific or special purpose survey is one that is performed for specified purposes and does not come within the definition of other types of surveys outlined in Rule 21HH-6.002, Florida Administrative Code. The specific purpose survey allows the surveyor to perform a survey that meets the client's particular need. However, a specific purpose survey may not be used to circumvent the law and must conform to the minimum technical standards. The Department's position is that a specific purpose survey was inappropriate in the instant case. Moreover, even if a specific purpose survey was appropriate, the Respondent's survey failed to meet the minimum technical standards. With regard to the type of survey performed by Respondent, the Department's expert witness, Lewis Kent, testified that Respondent's use of the specific purpose survey in this case was improper. Although this was his opinion, Mr. Kent candidly admitted that he was not sure what Respondent was requested to do by the client. Mr. Kent further testified that standard practice requires that boundary surveys be performed prior to new construction. Apparently, Mr. Kent believed that the situation in this case involved new construction. Based on that belief, he concluded that Respondent was obligated to perform a boundary survey. Notwithstanding this conclusion, no authority was cited for this proposition. In fact, evidence was presented that the Plant City Building Department did not require a boundary survey as a condition of issuing a building permit for commercial projects, such as the proposed project of Respondent's client. At one point, Mr. Kent stated that the Respondent was required to perform a boundary survey of the entire 1,539.523 acre tract, even though the tract had already been surveyed. During the course of his testimony, Mr. Kent retreated from this position and indicated that Respondent was not obligated to retrace the entire tract, but should have retraced enough of the tract to tie his survey to a legal corner. Notwithstanding the Department's position that the specific purpose survey was inappropriate in this case and that Respondent should have performed a boundary survey, its expert witness testified that a boundary survey was not the only way to locate the mono form boards. During his rebuttal testimony, Mr. Kent indicated that perhaps the type of survey that Respondent should have performed was a "construction layout survey" as that term is defined in Rule 22HH-6.002 (6)(c), Florida Administrative Code. In regard to the second allegation, the Department asserted that even if the survey was appropriately designated a specific purpose survey, the survey failed to meet the minimum technical standards. Specifically, the Department alleged that Respondent's specific purpose survey failed to include an adequate legal description and a legend which included abbreviations used in the drawing. According to the Department's expert witness, the legal description on Respondent's specific purpose survey failed to meet the minimum technical standards in that the description on the face of the survey referred only to a preliminary plat, which by its very nature is subject to change. However, at the time Respondent prepared the specific purpose survey, the subdivision had not yet been platted. The Department's position is that the minimum technical standards required that the survey include a phrase describing the legal metes and bounds, and show the location of the mono form boards in relation to a boundary line. According to the Department's expert, as presently drawn, another surveyor could not reproduce this survey without first obtaining a copy of the preliminary plat referred to on the survey. Richard Hinson, the expert witness for Respondent has been a licensed land surveyor in the State of Florida since 1982. During that time, Mr. Hinson has performed several hundred boundary surveys in Plant City, Florida and over a hundred surveys for building permit purposes. The testimony of Mr. Hinson conflicted directly with the testimony of Mr. Kent. It was Mr. Hinson's testimony that in the instant case, a specific purpose survey is appropriate. Based on what Respondent's client requested, a measurement showing the location of the mono form boards, the survey was appropriately designated a specific purpose survey. The Department asserted that, at a minimum, Respondent was obligated to do a boundary survey of Lot 22. However, in this situation, a boundary survey of preliminary Lot 22 would have made no difference in the location of the mono form boards because Lot 22 did not exist when Respondent prepared the survey. With regard to the preliminary description on the survey, based on Mr. Hinson's opinion, the specific purpose survey prepared by Respondent meets the minimum technical standards. While the survey does not recite or go back to a corner for the description, the description given is that it relates to the preliminary plat. With respect to the use of a specific purpose survey, Mr. Hinson's opinion was that, in this case, it was appropriate for Respondent to perform a specific purpose survey to measure the location of form boards. This opinion was based on two factors, both of which were present in this case. First, prior to performing the survey, the surveyor must have reviewed the following: a boundary survey, a building permit with a legal description describing Lot 22 according to a preliminary plat, and a copy the preliminary plat showing Lot 22. Second, the surveyor must have determined that the preliminary plat was rendered out of the boundary survey. In this case, prior to performing the specific purpose survey, Respondent utilized a boundary survey of the tract, which included Lot 22 as shown on the preliminary plat, and determined that the preliminary plat was rendered from that survey. After assuring himself that the preliminary plat was rendered from the boundary survey which he reviewed, Respondent went to the site and proceeded to measure and draw the location of the mono form boards in his field notes. Respondent's survey shows Lot 22 and notes that this is a preliminary description based on a preliminary plat. The preliminary plat is referenced on the survey. The drawing, which depicts the location of the mono form boards, measures the distance from the boundary of Lot 22 to Old Sydney Road and to Sydney Road. The drawing also measures the distance of the mono form boards from the boundary lines of Lot 22. The accuracy of these measurements were undisputed by the Department. Based on Mr. Hinson's opinion, Respondent's decision to designate the survey in the instant case as a specific purpose survey was appropriate. Also, with respect to the preliminary description that appears on the face of the survey, the survey meets the minimum technical standards. The specific purpose survey prepared by Respondent fails to meet the minimum technical standard set forth in Rule 21HH-6.003(5), Florida Administrative Code. That rule requires that the abbreviations used on the drawing be noted within a legend on the face of the drawing. In this case, the abbreviations used on the survey are not noted on a legend or anywhere else on the survey. No evidence was presented to indicate that the specific purpose survey performed by Respondent inaccurately depicted the location of the mono form boards. Neither was evidence presented which even claimed to indicate that the survey prepared by Respondent failed to comply with the client's request. Respondent has been a licensed land surveyor in the State of Florida for twenty-four years, and there is no evidence that he has been subjected to disciplinary action on any prior occasion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Department of Business and Professional Regulation, Board of Land Surveyors and Mappers, enter a final order finding Respondent guilty of violating Section 472.033(1)(h), Florida Statutes, and imposing a fine of $250.00 RECOMMENDED that Count II of the Amended Administrative Complaint be DISMISSED. RECOMMENDED this 29th day of November, 1995, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1159 To comply with the requirements of Section 120.59(2), Fla. Statutes, (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1-3. Accepted and incorporated. 4-5. Accepted. 6. Accepted and incorporated. 7-9. Accepted. 10. Rejected as statement of rule. 11. Rejected as irrelevant, immaterial, or unnecessary. 12. Rejected as not supported by the weight of the evidence. 13. Rejected as irrelevant, immaterial, or unnecessary. 14. Rejected as not supported by the weight of the evidence. 15. Rejected as argument. 16. Accepted and incorporated. 17-18. Accepted. 19. Rejected as not supported by the weight of the evidence. 20. Rejected as argument. 21-22. Rejected as not supported by the weight of the evidence. Accepted. Accepted except at time of survey the lots were preliminary. Rejected as argument. 26-27. Rejected as not supported by the weight of the evidence. 28. Accepted except statement that Respondent was obligated to retrace part of the survey is rejected. 29-31. Rejected as not supported by the weight of the evidence. Rejected as irrelevant, immaterial, or unnecessary. Accepted. 34-35. Rejected as argument. 36. Accepted. 37-40. Rejected as not supported by the weight of the evidence. 41. Accepted. 42-43. Rejected as irrelevant, immaterial, or unnecessary. Rejected as not supported by the weight of the evidence. Rejected as conclusion of law. 46-48. Rejected as irrelevant, immaterial, or unnecessary. Respondent's Proposed Findings of Fact Accepted and incorporated. Unsupported by record evidence. 3-7. Accepted and incorporated. Rejected as conclusion of law. Rejected as irrelevant, immaterial, or unnecessary. 1-3 of page 2. Rejected as conclusions of law. COPIES FURNISHED: Miriam S. Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mark W. Reagan, Esquire P.O. Box 321028 Cocoa Beach, Florida 32932 Angel Gonzalez, Executive Director Board of Professional Land Surveyors 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case whether Petitioner demonstrated sufficient title interest in uplands to entitle him to a letter of consent to construct a dock on state sovereignty submerged lands.
Findings Of Fact Petitioner is the owner of a lot located at 420 South Riverside Drive, New Smyrna Beach, Volusia County, Florida. The Department is the state agency with regulatory authority over the construction of docks in waters of the state under Part IV, Chapter 373, Florida Statutes. As staff to the Board of Trustees of the Internal Improvement Trust Fund (Trustees), the Department also regulates the construction of docks on sovereignty submerged lands pursuant to Chapter 253, Florida Statutes. In March 2008, Petitioner submitted an application for authorization to construct a 1,160-square-foot, private, single- family dock on the east side of South Riverside Drive, directly across from Petitioner’s lot. The application was assigned File No. 64-287397-001. The proposed dock requires both “regulatory approval” under Part IV, Chapter 373, Florida Statutes, for construction activities in “waters of the state,” and “proprietary approval” under Chapter 253, Florida Statutes, for the use of state lands. Florida Administrative Code Rule 18-21.004(3)(b) requires an applicant for proprietary approval of a dock on sovereignty submerged lands to provide satisfactory evidence of sufficient upland interest. Following its initial review of Petitioner’s application, the Department requested additional information from Petitioner to show that he owns the shoreline where the dock would be constructed or otherwise has riparian rights to construct a dock there. Petitioner submitted additional title information to the Department, but the Department did not consider the evidence satisfactory. On May 22, 2008, the Department approved a noticed general permit (regulatory approval) for Petitioner’s proposed dock, but denied Petitioner a letter of consent to use sovereign submerged lands (proprietary approval). Petitioner’s property is designated Lot 23 in the plat of the Andrews Subdivision. The original 1891 conveyance of Lot 23 describes the lot by metes and bounds and gives its eastern boundary as being along Front Street (now South Riverside Drive). No reference is made in the original deed to riparian rights. The 1895 plat of the Andrews Subdivision depicts a narrow strip of land along the river east of Front Street, but does not show this narrow strip of land as subdivided to match up with the lots west of Front Street. There is no reference on the plat to riparian rights. Decades after the first conveyance of Lot 23, deeds for the lot began to include wording about “any riparian rights.” Petitioner purchased Lot 23 in 1980. His deed contains the following description: Lot 23, Block 4, Andrews Subdivision, per map in Map Book 2, Page 68 of the Public Records of Volusia County, Florida, together with all improvements located thereon and any riparian or other rights to any uplands appertaining to such Lot east of South Riverside Drive in the City of New Smyrna Beach, Florida. Petitioner's title insurance for Lot 23 excepts from coverage “riparian rights, if any.” The Volusia County property appraiser’s website does not show Petitioner as the owner of land east of South Riverside Drive. Petitioner’s title documents were reviewed by Rod Maddox, the supervisor of the Title Section of the Division of State Lands within the Department. The Title Section oversees all of the land title records of the Trustees and is responsible for title research and title determinations for state lands. Mr. Maddox has extensive experience in land surveying and title boundary determinations. It is Mr. Maddox’s opinion that the lots in the Andrews Subdivision do not extend beyond the western boundary of South Riverside Drive. The lots do not continue onto the east side of the street to the mean high water line of the river. Mr. Maddox concluded that Petitioner’s title documents do not show a sufficient upland interest as required by Florida Administrative Code Rule 18-21.004(3)(b). None of the title documents and related evidence presented by Petitioner show that Lot 23 includes land east of South Riverside Drive or that Lot 23 has riparian rights attached. References to “any riparian rights” in these documents plainly fall short of declaring the existence of riparian rights. In addition, the depiction of a meander line on maps of the subdivision is not controlling because the legal description of Lot 23 does not refer to the meander line as one of the lot’s boundaries. The description of Lot 23 does not refer to the river, the shoreline, or the mean high water line. The City of New Smyrna Beach entered into license agreements with some other lot owners in the vicinity, but not with Petitioner. The license agreements authorize the lot owners to construct docks on the shoreline east of South Riverside Drive. These license agreements show that the City of New Smyrna Beach believes it is the owner of the land east of South Riverside Drive. Petitioner submitted permitting documents pertaining to docks owned by Michael Markovich, Robert Hopkins, Anthony Kraljic, and Jerry Evans, to show that the Department has previously determined that similarly situated lot owners had sufficient upland interest. Markovich owns the lot immediately north of Lot 23. Hopkins owns the lot immediately south of Lot Kraljic owns a nearby lot to the south. Evans owns a lot in another subdivision to the north. The evidence presented does not establish that the Department issued a permit for the Markovich dock. The Department issued a dock permit to Hopkins in 1997. There was no deed in the Department’s permit file for the Hopkins dock, indicating that the Department probably authorized the dock without seeing Hopkins’ deed. There is a survey in the Hopkins permit file with dotted lines extending from Hopkins’ lot, across South Riverside Drive, and down to the shoreline of the river. However, the survey includes a notation that the survey was prepared “without the benefit of an abstract and no title work has been provided.” Hopkins’ deed is similar to Petitioner’s. After reviewing the Hopkins deed, the Department believes that the Hopkins dock permit might have been issued in error. The Department issued a dock permit to Kraljic in 1997. Kraljic’s deed was not in the Department’s permit file for the Kraljic dock, indicating that the Department probably authorized the dock without seeing Kraljic’s deed. The design drawings submitted by Kraljic indicate that his property lines extend to the river. However, the drawings include a disclaimer that “no title work has been performed or provided to this surveyor.” Karljic’s deed includes the wording “together with riparian rights.” However, after reviewing the Kraljic deed and related documents, the Department believes that the Kraljic dock permit might have been issued in error. The Department issued Evans an exemption in 2006, which authorized Evans to replace an existing dock. The Department appears to have relied upon the dock drawings submitted by Evans, which indicated that his property lines ran to the mean high water line. Evans did not take action on his 2006 exemption before it expired, and he sought another exemption authorization. At the time of its review of Evans’ second request, the Department was aware that the City of New Smyrna Beach claimed to own the shoreline. The Department requested additional information from Evans to show his title to the shoreline, but Evans withdrew the second request. Evans’ deed does not refer to riparian rights. It is Mr. Maddox’s opinion that Evans does not own the shoreline or have riparian rights. The Department has changed its practice with regard to docks to serve lots located across a street from a water body. The Department now requests more information from the applicant to demonstrate title to the shoreline across a street from the applicant’s lot.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department enter a final order denying Petitioner’s application for consent to use sovereign submerged lands. DONE AND ENTERED this 12th day of November, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 2009. COPIES FURNISHED: Nona R. Schaffner, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David C. Carson, Esquire 312 Southwind Court, Apartment 101 North Palm Beach, Florida 33408 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioner, Robert William Morgan, applied for a land surveyor's license pursuant to Chapter 472, Florida Statutes. He qualified for and passed the first part of the exam on April 9 and 10, 1981, took the second part of the written examination administered by the Board of Land Surveyors of the Florida Department of Professional Regulation (Respondent). Mr. Morgan was notified that he had failed to pass the second part of the examination by the Respondent by notice dated July 17, 1981. He requested a review of his examination by the Board and filed written objections. On September 3, 1981 he was informed by the Respondent that his protest was denied and his failing grade on the examination would stand. On October 1, 1981, the Petitioner made a timely petition to contest the Board's denial of his application for licensure pursuant to Section 120.57(1) , Florida Statutes. There is no dispute that the only obstacle to the Petitioner's licensure in the eyes of the Board is that he made a score of 66 percent on the examination when 70 percent is required for passing. The rules cited below set forth the subject matter of the examination as well as the guidelines for preparing, administering and grading it. The Rules provide that the examination will consist of two parts which shall be prepared by the National Council of Engineering Examiners and, in part, by a consultant or testing service employed by the Department of Professional Regulation. The second part of the examination is the sole portion in dispute in this proceeding. Pursuant to the Rules cited below, the examination is designed to test an applicant's knowledge in land boundary plot problems (either metes and bounds or lot and block types), general surveying computations, trigonometry, curves, intersections (areas) legal responsibilities in professional practice, writing land or legal descriptions, construction or topographic surveying, specialty problems involving water boundary surveys, error theory and condominium surveys. The content of part two of the examination generally involves six (6) to eight (8) problems drawn from those areas, each of which problems will normally generate between five (5) to fifteen (15) multiple choice questions, each of which receive 2 points of credit when completed correctly. Part two of the examination, according to the Rule, is not to be machine graded and grades for part two of the examination must be based upon the application of "good land surveying judgment and a selection and evaluation of pertinent information with the demonstration of ability to make reasonable assumptions when necessary". The Rules require that the applicant must choose the multiple choice answer for a question on part two that is most nearly correct, further he is to be given space on his examination sheet to outline his reasons, methods and references by which the graders may determine his land surveying judgment which went into his answer. In the absence of such an outline, in explanation of an answer, even though the preliminary answer is marked correct, it is not to be given credit. Further, it has long been the Board's policy (expressed in the Rules) that if an outline or explanation of reasons for an answer is judged by the Board's testing service as adequate according to fundamental land surveying principles then credit will be given for the entire question pair "if the correct answer is close. . ." The second part of the examination, in dispute herein, was formulated and administered by Mr. Dave Gibson of the University of Florida School of Engineering who prepared the multiple choice examination to be machine scored in its entirety. No space was provided on the examination sheet for the applicant to outline his reasons or his methods and references in arriving at his solution so that the examining graders could determine his land surveying judgment underlying his answers to the multiple choice questions. The applicant, instead, was required by the format of the examination prepared by Mr. Gibson, and the instructions given by the Board, to choose the most nearly correct answer from a series of multiple choice answers on a machine scored answer sheet (emphasis supplied). The applicant was thus forced to select a single reason for his answer to the immediately preceding multiple choice question in each pair without having a blank space in order to outline the reasons for his answer. The choices were adequate for the applicant to express his reasons for his answers in some cases and in some cases they were not. In grading of the examination, credit was only given for the most nearly correct answer instead of an "adequate outline". Thus, where there was more than one acceptable method or reason for an answer to a specific question, the Board only gave credit for the one its consultant considered most nearly correct, even though another answer in a number of instances could have been correct by the Board's own admission. Indeed, the Board admitted that where there was more than one correct answer to a question, the standard policy of the Board had been to give credit for both answers. The parties are in agreement that the only questions in dispute are questions 13 and 14, 31 and 32, and 45 and 46, passage of all of which would give him a total score of 72 percent instead of 66 percent. These questions are arranged in pairs, 13 is the preliminary question and answer with 14 being the answer to be supplied in explanation to the answer to question 13 (no space being given, as formerly by the Board, to write an explanation). The same paired relationship is true of questions 31 and 32, with 32 providing the explanatory answer and question 46 containing the explanatory answer for question 45. The second part of the exam in question, consisted of forty (40) multiple choice questions followed by forty (40) multiple choice reasons, methods or references for the answer to the questions, as well as an essay question worth twenty (20) points. The odd numbers on the machine scored answer sheet for part two of the exam are the questions and the even numbers are the methods or reasons for the answers to the odd-numbered questions. The parties do not dispute that Mr. Morgan received 54 points on the multiple choice questions and 12 points on the essay question for a total of 66 percent on the examination. It must be remembered, however, that in order to get credit for a correct answer an "adequate outline" of the reason for the answer must be given as the second answer in the pair. It is also undisputed that Mr. Morgan correctly answered questions 13, 31 and 46 of the three pairs, but was not given credit for these answers at all because of his answers to questions 14, 32 and 45 were not in the view of the Board the "most nearly correct answers for 14 and 31" or as "equally correct as other answers" for question 45. Mr. Gibson, the Board's consultant who administered and graded the examination, did not give credit for an "adequate explanatory answer or outline". In some instances, however, more than one answer was accepted as correct, after Mr. Gibson and the Board determined that the examination should be "re-keyed", because of sixteen (16) questions on part two which the Board felt were ambiguous and could be correctly answered in more than one way. Question 13 on the examination was one of a series of questions testing the applicant's knowledge of topography and grading of land. It reads as follows: 13. If a lath were placed at the cul-de-sac center on road A, how far above the existing ground should a mark be placed on the lath that reads, 'cut three feet', most nearly. The elevation of the existing ground was determined from other parts of the examination. The notes on Mr. Morgan's examination reflect that he correctly calculated this to be eighty-six (86) feet. He also correctly answered question 13 by selecting choice B or "two feet". Solution number 14, the reason, method or reference for question 13, then states: This is the usual amount for most of Florida. By subtracting the elevation of the mark from the proposed pavement elevation. By subtracting the elevations of the mark from the existing ground elevation. Of those three choices, A, B and C, Mr. Morgan picked choice B as his reason for his answer to question 13. Mr. Gibson felt that the correct answer should be choice C in solution 14. The Board's witnesses admitted that the determination of the answer to question 13 was a two step process. The elevation of the mark on the stake must be determined from the proposed grade elevation within the meaning of the term "cut three" on the stake. Once the elevation of the mark is calculated, the height of the mark above existing ground elevation could be determined by calculating the difference between the elevations of the existing ground and the mark on the grade stake. If the elevation of the mark, which is eighty-eight feet, is subtracted from the elevation of the existing ground as directed in choice C of solution 14, the result is minus 2. The mark cannot logically be minus 2 feet above the existing ground on a grade stake as described in the question. Further, minus 2 was not even one of the choices for an answer to question 13. The correct and acceptable answer under the Board's "key" was 2 or plus 2 feet as Mr. Morgan correctly marked on his answer sheet. If one applies the "most nearly correct rule" to the answers in a mathematical sense, the most nearly correct answer would have been zero for question 13 using choice C as the answer for 14. This is obviously not the most logical and correct answer. Choice A for question 14 in explanation of the answer for 13 is admittedly a "detractor" type choice and not worthy of serious consideration. Choice B is an expression of the meaning of "cut three" and is the key to solving the problem stated in question 13, that is, the elevation of the existing grade, 85 feet, minus the elevation of the mark equals minus 3, which is directly symbolic of the surveyors term "cut three". Until this relationship is known, the elevation of the mark cannot be determined from the information given and therefore without knowing the elevation of the mark, the height of the mark above existing ground cannot be determined. Thus, choice C is an expression of the first step to a two-step process required to arrive at the correct answer to question 13. It is not the final step in explanation of the answer for question 13, but it must be found to be an "adequate reason", since the only other alternatives offered the examinee require him to disregard elementary mathematical principles, such as subtraction, which he is charged with applying in solving the examination. Thus, choice 14-B is the correct explanation for the answer to question 13 since it correctly expresses the initial part of the two-part process required to arrive at the correct answer to question 13 and since the other two choices A and C are either illogical or do not comport with applicable mathematical principles such as subtraction. Question 31 reads as follows: Concerning Palm Avenue about the 1955 MHW line, which statement is most nearly correct? The original developer is fee owner subject to public easement. The public is the complete owner subject to easements for the subdivision lot owners. Each lot owner owns fee title to the street center line subject to a public easement. State of Florida holds fee title subject to a public easement. The public is the complete owner subject to no easement. Mr. Morgan selected choice C for his answer, which is agreed to be the correct answer. Question 32 reads: Reason for Response given in question 31 Public only receive an easement from the developer. The public received complete title from the developer. Riparian rights. Deed for lots presumes grant to center of adjoining street. The lack of improving the street gives the fee title to the state. Mr. Morgan selected choice D as his answer for question 32, the Board did not give him credit for this answer because it felt the reason he gave was not the most nearly correct. As admitted by the Board's consultant, Mr. Gibson, the object of question 31 was to test the applicant's knowledge of legal principles pertaining to street or subdivision plats. Specifically, it required the applicant to state the title for that portion of the street above the mean high water mark, given the facts presented to him in the problem. Mr. Gibson also admitted that the applicant was expected to apply the substantive law of Florida as its existed at the time the applicant took the exam in April of 1981. He also admitted that the correct answer for the state of the title for question 31 contained two parts: an easement held by the public; and the underlying fee title held by the abutting lot owners. Both Witnesses Gibson and Davis admitted that the two best explanations contained in question 32, A and D, each only explain one part of the state of the title of the property involved. Response A only explains the easement portion of the title and response D explains the state of the fee title. These two witnesses conceded that Mr. Morgan's choice for question 32, response D, was a correct answer. Although they maintained they did not consider it the best answer, they failed to establish that response A is an any more correct or complete statement of title in explaining that an easement goes to the public for use of the street than is the explanation in the Petitioner's answer D, which states that the deed for the lots presumes a grant of the fee title to the center of the street. The Respondent's answer obviously is "adequate" if it is one of two possible correct answers. The Petitioner should thus get credit for his answers to questions 13 and 14 and questions 31 and 32. His reasons given for his obviously correct answers to the first questions in the two pairs are clearly adequate, which would have been obvious to the Board had it afforded him the hitherto provided space on his answer sheet to explain the answers to the first question in each pair. The final pair of answers in dispute are those for questions 45 and Question 45 reads: At what point of construction should the measurements be made for the surveyor's certificate required for a condominium? After the architect's plans are prepared but before construction starts. After the piling and footers are placed but before construction of the buildings. After the columns and floors are completed but before framing of the units. After framing of the units but before the walls are finished. After the interior walls are finished. Mr. Morgan chose response A. One of the requirements of applicants for licensure and examinees is that they be knowledgeable of substantive Florida Law pertaining to the profession of land surveying. Chapter 718, Florida Statutes, pertaining to land surveying, provides for two certifications which a surveyor is called upon to make during the course of development and construction of a condominium. One of these is the certificate which should be issued by the surveyor after construction is substantially complete. Accordingly, with that in mind, the Board maintained that the Petitioner should have answered "E" to question 45 which reads "after the interior walls are finished", as being the time at which the surveyor's certificate should be issued. The other surveyor's certificate required in the course of the development of a condominium, must be prepared much earlier as one of the documents that a developer must file with the Division of Land Sales and Condominiums when he wants to offer sales contracts and take advance subscription agreements for condominium reservation deposits. The developer cannot take a reservation or deposit until he files a surveyor's certificate filed with the Division. The Petitioner chose response A because of his knowledge of this last-described surveyor s certificate. The author of the examination, Witness Gibson, admitted that when he prepared the examination he was not aware of this other certificate required of surveyors when dealing with condominium developments. His question, therefore, did not specify which certificate was required for a correct response to the question. It was finally admitted that Mr. Morgan's choice, response A, was one of two correct answers to question 45 given the requirements of Chapter 718, Florida Statutes, which he is charged with knowledge of as a candidate for licensure. The Respondent acknowledged that historically it has been the Board's policy to give credit for a question where there is more than one correct answer to that question. If an answer is correct for any reasonable reading of the question to which it applies, then it is just as correct as any other answer. Accordingly, the Petitioner should be given credit for a correct answer to question 45. The Respondent admitted that the Petitioner correctly answered question 46, thus he should be given total credit for both questions 45 and 46.
Recommendation Having considered the above findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That a Final Order be entered by the Department of Professional Regulation, Board of Land Surveyors awarding Robert William Morgan a passing score of seventy-two percent (72 percent) on part two of the land surveyor's examination administered April 9 and 10, 1981 and therefore, it being agreed that no other impediment to licensure is extant, that the Board grant him licensure as a land surveyor. DONE and ENTERED this 2nd day of June, 1982 at Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1982. COPIES FURNISHED: Ken Davis, Esquire DAVIS, JUDKINS & SIMPSON Post Office Box 1368 Tallahassee, Florida 32302 Susan Tully, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Allen R. Smith, Jr., Executive Director Board of Land Surveyors Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION ROBERT MORGAN, Petitioner, vs. CASE NO.: 81-2502 STATE OF FLORIDA, DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF LAND SURVEYORS, Respondent. /
The Issue The issue is whether the small scale development amendment adopted by the County by Ordinance No. 99-15 on May 11, 1999, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, Thomas G. Wiley, G. Anthony Rish, Samuel F. Slaughter, III, and Louise L. Slaughter (Petitioners), have challenged a small scale development amendment adopted by Respondent, Sumter County (County), on the ground that the amendment involves more than 10 acres, and it therefore violates the statutory requirement that such an amendment involve "10 acres or fewer." Petitioners own property adjacent to, or near, the subject property, and they submitted comments to the County during the adoption of the amendment. Thus, they are affected persons and have standing to bring this action. The challenged amendment was adopted by the County by Ordinance No. 99-15 on May 11, 1999. Under the statutory scheme in place, there was no review of the amendment by the Department of Community Affairs, and the challenge by Petitioners was filed directly with the Division of Administrative Hearings. If the proposed amendment is found in compliance, the land use on approximately 10 acres of land owned by Intervenor, Hi-Tech Metals, Inc. (Hi-Tech), will be changed from agricultural to commercial. Hi-Tech submitted both written and oral comments to the County during the review and adoption process and thus has standing to participate in this action. A description of the affected area The subject property lies in Sumter County on the southwestern corner of the intersection of U. S. Highway 301 (U. S. 301), a principal arterial highway, and County Road 472 (CR 472), a minor collector road which dead ends at U. S. 301 from the east. After CR 472 intersects with U. S. 301, that road continues in a westerly direction, but is designated as County Road 216 (CR 216), a local road which also dead ends at U. S. 301 from the west. The intersection is located approximately two miles north of the City of Wildwood (City) and less than two miles south of the unincorporated Town of Oxford. The property affected by the amendment is an L-shaped, 10-acre tract of land cut out of a larger "parent parcel," presumably to satisfy the statutory requirement that a small scale development amendment be "10 acres or fewer." The parent parcel was once a platted subdivision known as Wildwood Terrace but was apparently never developed. If the amendment is approved, the remainder of the parent parcel will continue as pasture land and retain its current agricultural land use designation. Objections to the amendment In their initial petition, Petitioners contended that the land being reclassified exceeds 10 acres in size; that the amendment fails to discourage urban sprawl; that the amendment does not cluster highway commercial development in depth along an intersection of an arterial and collector road; that no need assessment was performed by the County before it adopted the amendment; that no need for the amendment exists; that there were no data and analysis to support the amendment; that the amendment fails to protect agricultural land as required by the comprehensive plan; and that the amendment does not meet the review criteria contained in Rule 9J-5.006(5), Florida Administrative Code. Although most of those issues were litigated at the hearing, in a paper filed on December 27, 1999, Petitioners indicated that they now object to the amendment only on the ground that "the amendment involves a use of more than ten (10) acres." Is the property 10 acres or less? Section 163.3187(1)(c)1., Florida Statutes, requires that the property subject to a small scale development amendment be "10 acres or fewer." Testifying on this disputed issue was Douglas Hunt (Hunt), a licensed professional surveyor and mapper. At the direction of the owner, Hunt prepared a "description sketch" of the property (as opposed to a survey) received in evidence as Petitioners' Exhibit 11. The sketch was based on a previous boundary survey made in 1994. Hunt's task was to depict a tract of land which met, but did not exceed, the 10-acre threshold. Since a 60-foot strip of land originally platted as a road (but never dedicated to public use) divided the eastern part of the property which adjoined U. S. 301, Hunt designated two tracts of land out of the parent parcel, the first 8 acres and the other 2.01 acres. The larger tract of land runs north and south directly on U. S. 301 and comes fairly close to being a rectangle. Its four sides are 351.60, 1000.15, 345.11, and 1000.18 feet, respectively. This equates to 8.00 acres. The smaller tract of land to the west of the platted road is a perfect rectangle with sides of 250, 350, 350, and 250 feet, respectively. In order for Hunt to have arrived at a mathematical "certainty" of 2 acres on the smaller tract, he would have been required to use a measurement of around 249 feet and a fraction, rather than 250 feet, on two sides of the tract. So that "it would be a clean parcel as far as numbers [are] concerned," and unlike the larger parcel on which he used fractions, Hunt elected to use the larger, but even, dimensions of 250 feet on two sides, rather than the smaller number with a fraction. This resulted in a total acreage for the smaller tract of 2.007 acres, or 10.007 acres counting both parcels. In the surveying profession, unless no other specific standards control, measurements of land are generally carried out to two decimal places. Therefore, Hunt rounded off the 10.007 acres to 10.01 acres. This measurement exceeds the statutory threshold of "10 acres or fewer." The County and Hi-Tech contend, however, that the excessive acreage is de minimus and should not defeat the amendment. Indeed, they point out that the subject property exceeds 10 acres by only 309 square feet. According to Hunt, "generally speaking" he considers his sketch to be a 10-acre tract, and that using general guidelines, he would not consider a tract to exceed 10 acres unless it was more than 10.49 acres, in which event he would round it to a higher number. At the same time, however, he recognized that a client, contract, or "agency's code" could require more precision than his general rule of thumb. In this case, the statutory definition controls, and it requires that the land be "10 acres or fewer." Therefore, the amendment exceeds the statutory threshold.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the plan amendment not in compliance. DONE AND ENTERED this 10th day of January, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER , 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 10th day of January 2000. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0011 Jimmy D. Crawford, Esquire Hovis, Boyette & Crawford, P.A. Post Office Box 120848 Clermont, Florida 34712-0848 Felix M. Adams, Esquire 138 Bushnell Plaza, Suite 201 Bushnell, Florida 33513-6122 Terry T. Neal, Esquire Terry T. Neal, P.A. Post Office Box 490327 Leesburg, Florida 34749-0327 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100 Carol A. Licko, General Counsel Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
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
