Findings Of Fact At times relevant Respondent has held license number LS0001999 issued by the Florida Board of Land Surveyors and Mappers. His license is as a land surveyor and mapper. Respondent held an active license from December 31, 1973 through March 9, 1995. On the latter date Respondent's license became delinquent "Due to Non- Renewal." The license remained in a delinquent status at the time of hearing. In this case the Florida Board of Professional Surveyors and Mappers under authority set forth in Chapter 472, Florida Statutes, seeks to impose administrative discipline against Respondent. On April 24, 1991 Respondent provided John W. Smith a signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. In November 19, 1991 Respondent provided John W. Smith with a revised signed and sealed boundary survey drawing for Lot 8, Pelican Walk in Gulf County, Florida. Robert Waers is licensed as a land surveyor in Florida. As such he is an expert in land surveying. He reviewed the subject boundary survey drawings prepared by Respondent. The purpose for that review was to identify whether Respondent had complied with minimum technical standards for land surveying when preparing the survey drawings. As Mr. Waers established, a boundary survey is a procedure by which the surveyor identifies the property lines of a parcel of property as described by a legal description. The process also involves the identification of rights associated with that parcel as it exists on the ground with relation to the legal description. In Mr. Wares' expert opinion as a land surveyor Respondent failed to meet minimal standards or the standard of care within the surveying community when preparing the survey drawings at issue. Basically Mr. Wares established that the survey drawings were not complete, defensible, adequate and accurate. As Mr. Wares established, the survey drawings in depicting the outer boundaries on the parcel would lead one to believe that they coincide with the legal description for the parcel. This circumstance would purport to establish that the dimensions on the ground are precisely the same as those described in the legal description. However, the legal description does not form a closed geometric figure. When the geometry of the legal description is computed it does not return to the point of beginning. It misses that point by nine tenths of a foot. Consequently, it would be impossible to show the same measurements on the ground on the survey drawing as would be found in the legal description and accurately portray the situation on the ground. There would be differences between the survey drawing on the ground as physically measured and what is written in the legal description. Respondent has failed to note those differences through a comparison between measurements on the ground and those measurements in the legal description and the recordation of the difference. To properly perform the comparison Respondent would need to reflect the distances measured on the ground and the record distance found with both sets of measurements noted on the survey drawings, which he did not do. In both surveys in question the field data does not support the survey drawings. They are incomplete. They are so disorganized as to make many of the matters contained in the field notes indiscernible. For that reason Mr. Waers, as an expert, was unable to recreate the information in the field data as a means to determine the correct position of the boundaries in the survey drawing. Nor can the field data be relied upon as a means to compute a closed traverse of the parcel, referring to geometry relative to a closed traverse by use of the field notes. In the April, 1991 survey Respondent incorrectly located a residence. The survey drawings did not adequately nor accurately depict the nature or geometry of the fixed improvement. While the dimensions of the fixed improvement are sufficiently detailed, the position of the improvement related to the boundary line for the property is not acceptable in the April, 1991 survey. The April, 1991 survey drawings indicate dimensions of 13.8 feet and 15.7 feet at the northerly and southerly ends of the residence, whereas the November, 1991 survey drawings describes those dimensions as 10.65 and 9.8 feet respectively. As Mr. Waers described a monument is a marker on the ground at boundary corners for the property or along boundary lines. Its purpose is to assist in better establishing the location of a boundary line. The monuments are physical objects. In the event that the monument location and the boundary lines do not coincide, the expectation is that the surveyor will describe that conflict in the survey drawings by comparison. In this case, conflicts existed between boundary lines and monuments and they were not shown on the April and November, 1991 survey drawings. In both the April, 1991 and November, 1991 survey drawings Respondent included legends or notes describing abbreviations and their complete meaning such as R/W for right of way and CH for cord. However, in those drawings, Respondent used the initials RLS, CONC and FR, terms not commonly known by the public, without describing the full meaning of those initials in a legend or note. All matters which have been discussed were observed by Mr. Waers and in his opinion, which is accepted, constitute the failure to comply with minimal technical standards for surveying when examining the survey drawings from April, 1991 and November, 1991 prepared by Respondent. Furthermore, Mr. Wares's opinion that Respondent failed to use due care in performing the surveys is accepted. As established by Mr. Waers, Respondent should have gone to the field and collected sufficient data, made sufficient measurements as to accurately position the residence on the property and to show property lines in all instances that might affect property rights as a means to allow the land owner to make additions to the house without encroaching upon his neighbors property. To perform the survey properly Respondent should have made notes and comparisons between the legal description in the record and the physical boundaries found on the parcel.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Final Order be entered finding the Respondent in violation of Counts I and V with the exception of part (e) to those counts and part (f) to Count V; in violation of Count II but not Count VI; in violation of Counts III and VII; in violation of Counts IV and VIII; and, absolving him of any violation alleged in Count IX. As a penalty, a $1,000 fine should be imposed, with a ninety day suspension should Respondent attempt to reactivate his license. DONE and ENTERED this 15th day of May, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1996. APPENDIX CASE NO. 95-5375 The following discussion is given concerning Petitioner's proposed findings of fact: Paragraphs 1 and 2 are subordinate to facts found. Paragraphs 3 and 4 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 5 is subordinate to facts found. Paragraph 6 is not sufficient in itself to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 7 is rejected in its suggestion that proof was sufficient to demonstrate that the civil action pertained to the survey performed by Respondent for Mr. Smith. Paragraphs 8 through 18 are subordinate to facts found as is the first phrase in Paragraph 19. The remaining phrases in Paragraph 19 and Paragraph 20 are not sufficient in themselves to support findings of fact. See Section 120.58, Florida Statutes. Paragraph 21 is subordinate to facts found. Paragraphs 22 through 27 are not sufficient in themselves to support findings of fact. See Section 120.58 Florida Statutes. Paragraphs 28 through 44 are subordinate to facts found. Paragraphs 45 through 47 are not sufficient in themselves to support a finding of fact concerning reporting fixed interior improvements. See Section 120.58 Florida Statutes. Paragraphs 48 through 50 are subordinate to facts found. Paragraphs 51 and 52 are rejected in the suggestion that proof was made sufficient to demonstrate that the court case which judgement was obtained was proven to be a case related to the survey performed by Respondent for Mr. Smith. Paragraph 53 is subordinate to facts found. COPIES FURNISHED: Miriam Wilkinson, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Donald F. Mowrey, Jr. 312 Iola Street Port St. Joe, Florida 32456 Donald F. Mowrey, Jr. Post Office Box 838 Port St. Joe, Florida 32456-0838 Angel Gonzalez, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are those which arise through the allegations set forth in an Amended Administrative Complaint brought by the State of Florida, Department of Professional Regulation against the Respondent. In its operative terms, Respondent is said to have committed violations of Sections 472.033(1)(g) and (h) and 472.005(4)(b), Florida Statutes. Factually, Respondent is said to have entered into a contract with Leonard Freed for the performance of land surveying services on a parcel of property which Freed owned. The contract price is said to be $6,000.00. Allegedly the Respondent began and had partially performed the work and had received $3,000.00 from Freed in payment. Respondent is alleged to have been negligent in his performance of the job in that he based an initial survey on a preliminary lot layout in contravention of the requirements of Chapter 21HH-6, Florida Administrative Code. It is further alleged that the contract entered into between the Respondent and Freed was such that the Respondent was called upon to design streets and layouts to include grades and drainage and that this arrangement exceeds the scope of the Respondent's land surveyors license. Finally, some reference is made to the fact that Respondent had previously been disciplined by the Board of Land Surveyors in Case No. 54633 for which he was fined $1,000.00 and ordered to serve 27 months probation, through the terms of a Final Order entered by that Board on October 1, 1985.
Findings Of Fact Those persons who are engaged in the profession of land surveying in the State of Florida are licensed by and subject to the discipline of the State of Florida, Department of Professional Regulation, Board of Professional Land Surveyors. This arrangement is in conjunction with the requirements of Chapters 120, 455, and 472, Florida Statutes and rules associated with those statutory provisions. At all times relevant to this case, Respondent, Frederick R. Bolt, was licensed as a Professional Land Surveyor through the State of Florida, Department of Professional Regulation and held license number LS 0003510. On or about July 31, 1987, Respondent entered into a contract with one Leonard Freed to perform land survey services on a parcel of property owned by Freed. Said parcel of property is described in the contract as the Dorcas property. Total contract price was $6,000.00. According to the contract, a copy of which may be found as part of Petitioner's Composite Exhibit No. 2, part of the work to be done by Respondent related to the Dorcas parcel was "street design & layout to include all grades and drainage." At the point and time where the contract was signed Respondent was paid $1,000.00. Subsequently, on August 18, 1987, a second installment of payment was given to the Respondent in the amount of $2,000.00. As related in Petitioner's Exhibit No. 8, Respondent had been the subject of disciplinary action by the Board of Professional Surveyors on a prior occasion. In that instance, the Respondent was found in violation of Sections 472.021 and 472.027, 472.033(1)(a), (g) and (h) and 455.227(1)(b) Florida Statutes, as well as Rules 21HH-2.01 and 21HH-6, Florida Administrative Code. The gravamen of the Administrative Complaint which underlies this prior disciplinary action related to the performance of his land surveying work and the performance of that work through a firm which had utilized a fictitious name and that had not been possessed of a certificate of authorization as required by Chapter 472, Florida Statutes. A $1,000.00 fine was imposed and the Respondent was placed on a period of probation for 27 months from the date of the Final Order, which date is October 1, 1985. During the probationary period Respondent was required to submit 25 surveys over to the Board for its review, representative of his practice and accompanied by field notes and record plat.
The Issue Whether the Petitioner is entitled to be licensed as a Professional Surveyor and Mapper, under Subsections 472.013, 472.015, or 472.041, Florida Statutes (Supp. 1994).
Findings Of Fact Petitioner has provided to the Board of Professional Surveyors and Mappers numerous letters and other documents, and a check for the sum of $100 dollars as an application fee for temporary registration as a professional surveyor and mapper. Petitioner has attempted to apply for licensure, under the revised Chapter 472, Florida Statutes , individually and has sought the issuance of a Certificate of Authorization for his business concern: "Mt. Dora Mapping." Petitioner failed to complete an application for licensure on a form provided by the Respondent. Petitioner has failed to provide the correct information necessary for an application to be evaluated under any of the subsections appearing in Chapter 472, Florida Statutes. Petitioner chose not to testify at the formal hearing or otherwise provide any new evidence to be considered by this tribunal, other than documents previously submitted to the Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for licensure as a professional surveyor and mapper be DENIED, without prejudice to reapply. DONE AND ENTERED this 1st day of April, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1997. COPIES FURNISHED: Robert B. Curtis 940 Gorham Street Mount Dora, Florida 32757 Lealand L. McCharen, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent, Stephen Phillips Kilmon, committed the violations alleged in an Amended Administrative Complaint issued by the Petitioner Department of Business and Professional Regulation on January 25, 2007, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Board of Professional Surveyors and Mappers (hereinafter referred to as the "Department"), is the state agency charged in Chapter 472, Florida Statutes, with the duty, among other things, of regulating the practice of land surveying and mapping. At the times material to this proceeding, Stephen Phillips Kilmon, is and was a licensed Florida Surveyor and Mapper, having been issued license number LS 5439. At the times material to this proceeding, Mr. Kilmon was doing business as ViaLink, Inc., a licensed surveyor business, having been issued license number LB 6648. Mr. Kilmon's address is 2010 Northeast 122 Road, North Miami, Florida 33181. Mr. Kilmon obtained his license in January 1995. Before obtaining his license and beginning in 1980, he obtained experience in surveying, mapping, civil engineering, computer aided design drafting, and information management systems, which ultimately led to his licensure. The Fiddler's Creek Project. 951 Land Holdings, Ltd. (hereinafter referred to as "951"), through Holes Montes & Associates (hereinafter referred to as "Holes Montes"), was engaged in the development of a housing/golf course project in Naples, Florida (hereinafter referred to as the "Fiddler's Creek Project"). A portion of the Fiddler's Creek Project was being constructed by Atlantic Civil, Inc. (hereinafter referred to as "ACI"). Among other things, ACI was engaged in the excavation of several lakes and the creation of an upland golf course in a wetlands' area. ACI was, however, having difficulty completing the excavation of the lakes due to apparent back-fill which was preventing ACI from achieving the contracted depth of -18 feet National Geiodetic Vertical Datum 1929. Mr. Kilmon described the problem as follows: . . . each lake became mysteriously back- filled to a depth of -14 feet, National Geiodetic Vertical Datum 1929 (NGVD29) virtually overnight not allowing ACI to achieve reaching their contract depth of -18 NGVD29 for the bottom of any lake. The analogy is like digging a small hole in the sand a the beach near the water only to watch it fill with more sand and water each time you scoop out the material. The result of ACI's futile efforts to achieve and maintain -18 NGVD29 for any lake caused an over-excavation in cubic yards per lake, long before ACI could finish cutting out the lake pattern or design template. ACI filled its construction site limits to more than 110% of the cubic yards HMA [Holes Montes & Associates] designed for it, yet only completed 75% of the lakes final design template. ACI sought reasonable contract relief from 951 in achieving the unattainable contract required -18 NGVD29 lake bottom depth due to the natural back- fill of liquid sand conditions below the initial 4~6 feet of cap rock, and 951 refused. ACI's position then became that 951 was taking advantage of its contractor to force excessive extraction of "free" fill material for 951 at the unfair expense of ACI. . . . ACI then made the attempt hiring ViaLink to identify the approximate best known volume of excavated "fill" material placed onsite from the lakes, and to be paid according to material type cubic yard unit cost, rather than by the contract method of lake dredge percent complete. Petitioner's Exhibit 6. Involvement of ViaLink, Inc. and Mr. Kilmon in the Fiddler's Creek Project. As a result of the foregoing described problem, ACI hired ViaLink, Inc., and Mr. Kilmon to provide services described by Mr. Kilmon, in pertinent part, as follows: My initial role as Surveyor/Mapper for ACI was to monitor the mysterious back-filing of sandy material during the dredging process after reaching -18 NGVD29. I performed numerous measurements immediately following the backhoe digging, and recorded depths reaching the -18 NGVD29. . . . My second involvement came several months later. At this time I was requested by ACI to perform a survey which captures a topographic surface (less the hydrographic surfaces of the lakes, surveyed by HMA) in the form of a digital terrain model (DTM) of the contracted construction limits out to, and including the bordering lands matching to existing conditions beyond the ACI construction site limit for that moment in time. . . . My third and next involvement on this project site came when ACI informed me that their informal negotiations with 951 felt [sic] through at trying to convey the understanding of the amount of material already placed onsite exceeding the contracted and design intended volume for the ACI construction site limits. I was asked by ACI to contact HMA directly to compare my "ViaLink" DTM topographic surface . . . to the HMA DTM surfaces maintained on their computer systems . . . . From this point on legal counsel for both sides took over the control for resolution between ACI vs. 951, which sent everyone into court. . . . Petitioner's Exhibit 6. Ultimately, the parties turned to the courts to resolve their dispute. During this litigation process, Mr. Kilmon prepared what he titled a "Specific Purpose Survey Surveyor's Report" (hereinafter referred to as the "Surveyor's Report"). Petitioner's Exhibit 4. The Surveyor's Report was prepared in response to a subpoena from counsel for 951 and had to be prepared quickly: MR. KILMON: Because it was an evolutionary process -- ever since we were first hired to go and work on the site, the Judge said, "Wrap it up." That was exactly what he said, "Wrap it up," and he said "Wrap it up" because the other counsel on the other side was seeing that this evolution here of survey work was actually producing something, that I was actually able to recreate this [Digital Terrain Model] that they were hiding. I was actually able to come up with it again and actually produce a number. They cut it, and they go the Judge to say, "Okay, let's produce what he has, let's see what he has" My client said, "Please, you've got to say something. They've drawn a line in the sand and we're not allowed to cross it anymore. We have to come up with something." . . . . MR. KILMON: That was the first piece I gave them because of that subpoena, and that was the May 30 disk. . . . And then I ended up submitting the final version of it that I ran out of time with, and well, here you go, it's the last version. So I complied is all I did. I complied. . . . Transcript, Vol. II, Page 215, Lines 15-25, Page 216, Lines 1-4, and Page 217, Lines 6-12. The Surveyor's Report. The Surveyor's Report, dated July 10, 2002, and addressed to the president and CEO of ACI, states that it involves "Professional Forensic Surveying & Mapping Services; Earthwork Analysis" for the Fiddler's Creek Project. The Surveyor's Report contains the following "Mission Statement": Develop a stratum within a Digital Terrain Model (DTM) having two (2) surfaces for comparison; (a) compile an existing conditions surface (Surface 2[SRF2]) observed and recorded by Hole, Montes & Associates, Inc. (HMA) and their sub- consultants at the time Atlantic Civil, Inc. (ACI) began construction, and (b) compile a final surface (Surface 3 [Srf3]) observed hydrographically by HMA and topographically by ViaLink, Inc (ViaLink) at the time the ACI was terminated, less any areas even partially filled by others, though completed by ACI. Perform a calculation within the DTM which determines the amount of "FILL" material placed on the Fiddler's Creek, Phase 2A, Stage l (the "Site") by Atlantic Civil, Inc. between Srf2 and Srf 3. Methods of volume calculations include "Average End Area" by contract, and "Prismoidal" in support as a backup check calculation in verification. The Surveyor's Report also lists the data relied upon by Mr. Kilmon, many of the rules that govern the practice of surveyors and mappers, and information concerning the calculation of the amount of fill removed by ACI in its efforts to excavate the lakes made by Mr. Kilmon. The Surveyor's Report also included a compact disc (hereinafter referred to as the "CD"), which contained "AutoCAD drawing files depicting a Digital Terrain Model ('DTM')." The Digital Terrain Model (hereinafter referred to as the "DTM"), a digital representation of data, is, according to the Department, a "map." Petitioner's Exhibit 5. The CD contained "AutoCAD drawing files depicting a Digital Terrain Model (DTM)." A printed depiction of the Digital Terrain Model (hereinafter referred to as the "DTM"), contained on the CD was printed and admitted in evidence. It was never Mr. Kilmon's intention to prepare a "quantity survey" as those terms are defined in Florida Administrative Code Rule 61G17-6.002(8)(h), or provide a "map" with his report. As to the type of report he intended to issue, Mr. Kilmon testified, in part, as follows: I was left with a partial, if you will, quantity survey, and it's uncertified data, and I didn't want anyone to take off with an assumption, by just reading the title of my report, that there was some sort of real quantity surveying going on here. That’s why you have a specific purpose survey is when you have things that are really out of whack from what's normal for a survey type, slowing everything down. Making people take a look at the title, specific purpose survey, was my judgment call. I wanted to make everybody, including the public, know that right off the top of the bat, you're not going to see this as a quantity. You're going to have to break it down and understand what the data is that made the number. Transcript, Vol. II, Page 220, Lines 16-25, and Page 221, Lines 1-5. Mr. Kilmon recognized that to issuing a quantity survey or map was not appropriate for two reasons: First, some of the data he had available to him was unverified data from Holes Montes; and Second, he did not have all of the data necessary to complete an accurate quantity survey. As Mr. Kilmon further explained his intention during his testimony at hearing, agreeing "in part" with a question as to whether he had concluded that a quantity survey was not appropriate because of inappropriate data he had: . . . . The other part is that the end- all answer of what would be the quantity on that surface, because we didn't have enough data, not just uncertified, but we didn't have enough data to tell where every bit of fill was on that surface. There is no way to know that the end-all number would be. It's simply, as I put in my certification, the best-known number, and the reason is because we're just trying to determine whether or not it's in the 700, 600, a thousand cubit yard range, or are we talking about the 400,000 cubic yard range that the contractor got paid for. Is it worth another look at reevaluating with better cooperation from the other surveyor to get certified data and maybe look at their actual DTM, you know, to get to the bottom of this? Transcript, Vol. II, Page 218, Lines 22-25 and Page 219, Lines 1-12. In addition to styling his report as a "Specific Purpose Survey Surveyor's Report," rather than a quantity survey, Mr. Kilmon warned the reader of the uncertainty of some of the data he had relied upon. On page 14 of the Surveyor's Report, under the heading "Reviewed Survey Data" he identifies the following "Surveyor's and Mappers providing surveying data for review" (see also, page 1): Hole Montes & Associates, Inc. (HMA), . . .as the surveying and mapping consultant or agent to the Fiddler's Creek Developer (FCD), including aerial photogrammetry sub- consultants employed, though their identities are not disclosed. ViaLink, Inc. (ViaLink) . . . as the surveyor and mapping consultant to ACI. On January 24, 2001 the undersigned Surveyor and Mapper formally made a request of HMA and the FCD through ACI for a copy of specific survey instruments, in digital and hardcopy formats, to expedite the review of the Fiddler's Creek Ste, as identified above. To date no signed and sealed, or certified field notes, survey maps, sketches, or surveyor's reports, of any kind have been provided for evaluation. Further, HMA and the FCD insist all survey related information available from there [sic]file has been proffered for review. While originally requested of HMA and the FCD certain forms of helpful raw and finished survey product(s) developed by HMA (and/or it [sic] sub-consultants) and the FCD have if [sic] fact been withheld from this review. Examples being lawfully prepared certified plats of public record, their respective certified boundary surveys, and control surveys signed and sealed. Other examples of withheld survey information include all controlled aerial photogrammetry products observed at the time ACI was terminated. Certified survey data contained in the attached DTM to date is limited to that portion of information provided by this firm, ViaLink, Inc. All other survey data provided for this DTM review is NOT certified, and does not meet the Minimum Technical Standards (MTS) of Chapter 61G17-6 of the Florida Administrative Code as required by Florida Law. The lack of certification does not invalidate the accuracy of the survey data, just its backing. (Emphasis added). The Surveyor's Report, page 14, goes on to advise that there are "three(3) surfaces" contained within the CD's DTM and warns the following with regard to "Surface No. 1": "Surface No. 1 (Srf1) being simply the "Contract Surface" reportedly created by a mystery aerial photogrammetrist developing planimetrics and derived three-dimensional spot elevations as a sub-consultant to HMA in and about a Fiddler's Creek pre- construction Site. " Beginning at the bottom of page 14 and continuing on to page 15, the Surveyor's Report describes where more specific data concerning all three surfaces was obtained, the accuracy or lack thereof of the data, and whether the data is certified. Much of the data listed is acknowledged to be of "unknown" accuracy and to lack certification. Finally, on pages 25 and 26, under the heading "Surveyor's & Mapper Notes," Mr. Kilmon noted the following concerning the inadequacy of data used in the report: 4.) This SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT is the direct result of geometric calculation, in large part due to the availability of qualified data provided by others, but without any certification of the responsible surveyor and mapper. . . . . 8.) Under Florida Law, this firm, ViaLink, Inc., and the undersigned Surveyor & Mapper can not certify survey information provided by others when the survey is not conducted under the direct supervision of the undersigned Surveyor & Mapper. Therefore this firm, ViaLink, Inc., and the undersigned Surveyor & Mapper will not assuming [sic] any liability; for information provided by others used in this SPECIFIC PURPOSE SURVEY for Earthwork Analysis. Mr. Kilmon goes on to make the following ultimate findings in the Surveyor's Report: 10.) It is this undersigned Surveyor & Mapper's certain opinion that the earthwork calculation which determined a FILL quantity of 688,080 cubic yards of material reflects an extremely conservative volume of material placed onsite by ACI for the area known as Phase 2A, Stage 1. Additionally, extreme measures have been taken to exclude any and all areas of Srf3 were even in part FILL was placed by others. These pocketed areas of partial FILL formerly reflected within SRF3 have been extensively sought out and totally removed by ACI personnel having direct personal knowledge of the site prior to any construction by ACI. Aerial photography taken by Aerophoto, Inc., on 07/15/1999 independently supports these efforts depicting the same identified regions of partial FILL. The result of this additional effort to meet and/or exceed the Mission Statement of this Surveyor's Report now actually benefits the FCD. Omitted partially filled regions by ACI and others are now not claimed by ACI in any way, but are instead 100% credited to the FCD. 11.) It is the undersigned Surveyor & Mapper's certain opinion that HMA conducted its surveying practices with the positive intension to reflect the actual conditions of Fiddler's Creek, Phase 2A, State 1 topographic and hydrographic surfaces, as no evidence was found to the contrary. 12.) The Average End Area computed total FILL quantity of 688,080 represents FILL to form higher uplands regions and placed in lakes, and may contain a variety of earth materials from rock to sand. On the last page of the Surveyor's Report is the following note: Not Valid without the signature and the original raised seal of a Florida licensed surveyor and mapper. Further this Surveyor's Report is not valid without the original CD-ROM displaying the original signature of this same undersigned Surveyor & Mapper. As noted, supra, a CD was provided by Mr. Kilmon with the Surveyor's Report. The DTM contains a large "N" with an arrow at the bottom. Under this symbol is the following identifying information: Specific Purpose Survey Fiddler's Creek, Phase 2A, Stage 1 (NAD 83/99 FL E. 901 & NGVD 29) Mr. Kilmon did not intend for the DTM to be a "map." Toward this end, he notes the following in the Surveyor's Report on page 26 under the heading "Surveyor's & Mapper Notes": "This is NOT a BOUNDARY SURVEY." Consistent with his intent to only prepare a "report" and not a "report and map", Mr. Kilmon consistently refers to the Surveyor's Report throughout the report (except for what appears to be typographical error), as a "Specific Purpose Survey & Map Surveyor's Report." He does not refer to the report as a "Specific Purpose Survey and Map." To the extent that it is considered a "map," the DTM does not contain the information required by Florida Administrative Code Rule 61G17-6.003 alleged to be missing in the Amended Administrative Complaint. Mr. Kilmon signed and sealed the Surveyor's Report under the following "Surveyor's Certification:" THIS IS TO CERTIFY that this SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT is the result of compiled topographic and hydrographic data in part provided by others for the limited purpose of calculating best known "FILL" quantities as mentioned in the Mission Statement herein. I FURTHER CERTIFY that this SPECIFIC PURPOSE SURVEY & MAP SURVEYOR'S REPORT meets or exceeds the evaluation, analysis, and result finding accuracies established by the Minimum Technical Standards as set forth by the Florida Board of Surveyors and Mappers in Chapter 61G17-6.0052, Florida Administrative Code, pursuant to Chapter 472.027 of the Florida Statutes. Summary Findings. The ultimate issues of fact in this case are whether the Surveyor's Report constitutes a "quantity survey" and whether the DTM is a "Map." Credible expert witnesses for the Department and Mr. Kilmon gave inconsistent testimony on these issues. Ultimately, as to the first question, whether the Surveyor's Report constitutes a "quantity survey," the testimony of the Department's expert witnesses was more convincing. It is concluded that the Surveyor's Report, regardless of what Mr. Kilmon named it, is a quantity survey, which is defined in Florida Administrative Code Rule 61G17-6.002(8)(h) and (j), as "a survey to obtain measurements of quantity." The Surveyor's Report comes within this definition: First, the Surveyor's Report is a "survey", which is defined in Florida Administrative Code Rule 61G17-6.003(8) as "the orderly process of determining facts of size, shape, identity, geodetic location, or legal location by viewing and applying direct measurement of features on or near the earth's surface using field or image methods. . . ."; and Second, the survey, by admission of Mr. Kilmon at hearing and on the face of the Surveyor's Report, was intended to obtain and report a measurement of quantity even if only a rough estimate thereof. While Mr. Kilmon did qualify his calculations and openly disclosed the shortcomings of the data relied upon, the bottom line is Mr. Kilmon concluded that "[i]t is this undersigned Surveyor & Mapper's certain opinion that the earthwork calculation which determined a FILL quantity of 688,080 cubic yards of material reflects an extremely conservative volume of material placed onsite by ACI for the area known as Phase 2A, Stage 1." The second issue, as to the proper characterization of the DTM, is more difficult to resolve. The Department's experts unequivocally characterized the DTM as a map. Mr. Kilmon's expert testimony emphasized the issue of whether a map was required rather than whether the DTM was a map. While it seems that the DTM is nothing more than a depiction of data during an intermediate step in the process of manipulating that data, it would not be reasonable to reject the testimony of the Department's experts. It is, therefore, found that the DTM is a map. The Department's witnesses did not, however, prove clearly and convincingly that the DTM is the type of map for which the information specified in Florida Administrative Code Rule 61G17-6.003 is required. Mr. Kilmon's expert, on the other hand, testified convincingly that the DTM is not a map to which the standards and requirements of Florida Administrative Code Rule 61G17-6.003(3) apply.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Board enter a final order finding that Stephen Phillips Kilmon committed the violation described in this Recommended Order, issuing a written reprimand, and requiring that he pay a fine of $500.00 within 30 days of the entry of the final order. DONE AND ENTERED this 19th day of July, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 2006. COPIES FURNISHED: Eric R. Hurst Charles F. Tunnicliff Assistants General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen Phillips Kilmon 2010 Northeast 122 Road North Miami, Florida 33181 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Morrison, Executive Director Board of Professional Land Surveyors And Mappers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact On February 27, 1984, Respondent, Department of Transportation, (DOT), advertised for letters of submittals by pre-qualified surveying firms interested in bidding on the project in question. This project was for miscellaneous survey work in the amount of $100,000.00 to be performed at the will of the DOT District II Engineer throughout the District II area. The work was to be done as need for it arose rather than on projects already existing and specifically identified. It was to be primarily for overflow surveying work that could not be handled by regular state survey crews. DOT District II covers North Central Florida from the Georgia border on the North to a line extending from just south of Jacksonville on the East, toward the West below Gainesville, and ending just at Yankeetown on the West. The Western boundary is a line extending from Georgia to the Gulf of Mexico approximately twenty five miles East of Tallahassee. The District is headquartered in Lake City. Four letters of intent were received from prospective bidders of which one was disqualified immediately because it had not been pre-qualified. The remaining three bidders were: Petitioner (Hale) L. L. Lee & Associates (Lee), and Bennett R. Wattles & Associates (Wattles). Thereafter, these three prospective bidders were evaluated according to a selection process which is multi-stepped. The first step involves an evaluation of the submitted letters of intent to determine the prospect's capability to meet schedules and do the anticipated work. These evaluations, made at the District headquarters and received in Tallahassee on March 20, 1984 resulted in the following scores assessed: (1) Hale 33 (2) Lee 37 (3) Wattles 33. To those scores, numbers are added for work load and location by the Contractual Services Office on an objective basis which resulted in new scores of: (1) Hale 58 (2) Lee 62 (3) Wattles 56. Since at this point there were only three prospective bidders left, DOT requested proposals from all three. Proposals were submitted by all three concerns on or about June 18, 1984. When received, they were sent to District II central officer personnel for evaluation by a three man committee convened there and consisting of the Deputy District Engineer, the District Location Engineer, and the Assistant District Design Engineer. At this point, Lee withdrew from the competition due to outside considerations leaving only Hale and Wattles. These two firms were rated by the committee as follows: Technical Plan Management Plan Project Schedule Other Total Hale 35 25 18 8 86 Wattles 35 25 18 6 84 The two point edge awarded to Hale by the committee was due to the fact that its office was located in the center of the district at Lake City whereas Wattles' office being on the edge of the district in Jacksonville would be inconvenient. At this point, though fee schedules had been received, they were not viewed by the District Committee. The proposals once evaluated by the District Committee are then evaluated by the Technical Committee in Tallahassee which consists of the Chief of Pre-Construction and Design, the Bureau Chief of Aerial Photography (for survey work), and the District Design Engineer. When this evaluation was completed, the combined score of the District and Technical Committees averaged: Hale 75, and Wattles 82. At this point, the complete evaluation report is furnished to Mr. Berry and the preference for Wattles was based on the facts that over 50 percent of the projected work under the contract would exist in Duval County and there are already three DOT survey crews located permanently in Lake City. When this committee report was published, the committee did not know of the price proposals submitted by the parties. This information, in its pertinent particulars, shows that the average 5-man party rate proposed by Hale was $619.83 and by Wattles was $650.00. The analysis of price proposals submitted by all three original bidders, completed in July, 1984, reflected that Hale was low bidder in every category of crew and mileage criteria. When this analysis was furnished to the Technical Committee, it came back with a recommendation that the best cost value would be furnished by Petitioner, Hale. Thereafter, the proposal was submitted to the Selection Committee which consisted of the Secretary, the Assistant Secretary, and the Deputy Assistant Secretary, all of DOT, and Mr. Berry, for final selection. The selection is made considering all the evaluation committee work and the price quotation. The Selection Committee met on August 29, 1984. It considered the evaluation report sheet of the Technical Committee along with all other relevant information and the selection is made based on the answers to questions asked by the committee members. Here, Wattles was selected based on the conclusion that more than 50 percent of the prospective work under this contract was to be done in Duval County and that there were already three DOT survey teams located in Lake City. No DOT survey teams are located in Duval County. On this basis, Wattles would be under 30 miles for the majority of the trips and would charge $600.00 per day for a 5-man party. On the other hand, for more than 50 percent of the work, Hale would have to come from Lake City, a trip within the 51-75 mile range and his fee for a 5-man party for that distance is $661.00 per trip. Therefore, even though Hale's fees are uniformly lower for equivalent trips, because his trips would be longer for a majority of the work, his overall cost to the DOT would be greater. Utilizing the expected trip distances and numbers, a weighted average was computed to demonstrate the relative costs. These figures showed that for all work under the contract, Hale's price would be $630.12 and Wattles' would be $618.75 per trip. On the basis of this information and, inter alia, the fact that DOT survey teams have until now done most of the work outside of Duval County, the Selection Committee decided to award the contract to Wattles and the parties were so notified. The weighted cost figures were calculated by Mr. Berry on a hand-held calculator during the Selection Committee meeting at the request of the Secretary. All other calculations and analyses of costs were done by Mr. Alligood, a professional statistician. Information to the fact that in excess of 50 percent of the work would be done in the Duval County area was not communicated to the prospective bidders at the time the proposals were solicited. While the terms of the advertisement are not in evidence, it may be presumed that the advertisement either expressly or impliedly indicated the work was to be done throughout District II. No indication was given to the bidders that weighted consideration would be given to the historical information on prior activity as to the location of most of the work. This factor was inserted into the framework of the consideration only after the evaluation and selection process had progressed to the Selection Committee level, the last step in the process before award.
The Issue Whether Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, in violation of Florida Administrative Code Rules 5J- and 5J-17.052, or were guilty of negligence in the practice of surveying and mapping, all in violation of section 472.0351, Florida Statutes (2012),1/ and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state entity charged with regulating the practice of land surveying and mapping, pursuant to chapter 472, Florida Statutes. At all times material to this case, Mr. Haas was licensed as a professional surveyor and mapper in the state of Florida, with license number LS3708. Mr. Haas was employed by Exacta, which holds license number LB7337. A complaint was filed with the Department on January 27, 2014, by Mr. Charles B. Hatcher of Associated Surveyors, Inc., alleging numerous minimum technical standards errors on a survey prepared by Mr. Haas on September 25, 2012. Petitioner has failed to prosecute Mr. Haas or Exacta for the violations alleged in the complaint made by Mr. Hatcher, on January 27, 2014. Administrative complaints alleging identical counts were filed against Mr. Haas and Exacta. Count I alleges that some of the field data was not dated. Count I also alleges that the coordinates are not on the same datum as the survey, and thus, the survey map cannot be substantiated. Page 12 of Exhibit P-1, a page of computation notes, does not contain the date the information was observed and collected. Further, it is clear that page 12 is not simply a continuation of pages 10 and 11 (which are two halves of the same document) but is instead a separate document that is undated. Data shown in the raw data file and coordinates list differed from that reflected on the survey map. It appeared, however, that the data had been rotated and translated. Rotation and translation is an accepted survey technique which allows modern instrumentation to record data based upon an assumed initial point and bearing, and then calculate all further points and bearings relative to that initial measurement. This information recorded by the instrument must then be rotated and translated back to match the actual points and bearings on a parcel. The Department failed to show that the survey map could not be substantiated. As Mr. Gloer testified during cross examination: Q. My question is, wasn't it clear to you that the assumed bearing that Mr. Blackmon made, our party chief, on page 4 in his instrument-–in his data collector between Points 1 and 2 of a bearing of north zero degrees, or an azimuth of north zero degrees--isn't it clear to you that then in order for it to make sense on this drawing and all the other lines too, that you would have to rotate that to get on the same bearing basis? Doesn't that jump out to you as an expert, having done over 2,000 surveys? A. At the time two years-–well, it's been a year. A year ago when I did this original review, I based it on the data that was supplied to me. Now that you have explained it to me and I see that there is a note here that said they rotated it, yes, it's clear to me now, yes. Count II alleges that the field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work date of 9/25/12. The parties stipulated as to the different dates shown on these documents.2/ The dated field notes show that field work was performed on September 24, 2012. The clear and convincing evidence is that the date of data acquisition was September 24, 2012, while the date on the survey drawing is September 25, 2012. Count III notes that the survey shows a found 3/4" iron rod at the point of beginning, notes that this appears to be the same corner shown on the coordinate list as point number 8, and states that the field notes do not show the setting or locating of the corner. The complaint concludes that this corner is not supported by accurate survey measurements. The notation "P.O.B." is found at the lowest corner of the property on the survey map, and underneath the corner is found the note "3/4 FIR NO ID." According to the Surveyor's Legend found on page 2, this indicates that the point of beginning is marked by a 3/4 inch found iron rod without identification, as Mr. Gloer testified. While page 12 shows a point marked as "set #8 @ DEED Dist/Dist frm 5 & 152" on the lot corner, it indicates this monument was set, and does not indicate a found iron rod. Point "6" has no notation at all on page 12 and does not appear to be aligned on the southeast property line, but point 6 is reflected in the raw data file and the coordinates list. The measurements to point 6, and description of it, are consistent with and support the property corner marked as the P.O.B. on the survey map. Count IV alleges that bearings shown on the survey as measured are not substantiated by the survey measurements in the raw data or coordinate list. Mr. Gloer testified that he inversed the data from the coordinates and that the bearings were different. However, as he admitted, he did not consider that the recorded survey measurements might reflect an assumed initial location and bearing and that they would therefore need to be rotated and translated to substantiate the bearings shown on the survey map. The Department failed to show by clear and convincing evidence that the bearings shown on the survey were not substantiated by measurements. Count V alleges that the three points used to locate the improvements, monumentation, and control for the survey are not part of a closed traverse and are not based on redundant measurements. As Mr. Gloer testified, the distance between points 1 and 2 was verified by redundant measurements: once measuring the distance from point 1 to point 2, and once measuring the distance from point 2 back to point 1. However, the angle created between points 2, 1, and 150 was not similarly measured on more than one occasion or from the opposite direction. Respondents argue that use of an instrument such as the robotic total station used here, which takes numerous measurements very quickly and then averages them, is, by definition, taking redundant measurements. However, Mr. Gloer testified that in his expert opinion, "redundant" measurement has a more specific meaning. It requires that an "independent check" be made. He noted that if a rodman had the rod on his toe, all of the measurements almost instantaneously taken and averaged by an instrument would reflect the same incorrect information and so these multiple readings would not serve the purpose of revealing the mistake and preventing the error. Only an independent measure, like shooting the distance backwards, would likely reveal the error and thus meet the purpose of a "redundant" measurement. The angle created between points 2, 1, and 150 was not verified by redundant measurements. Count VI alleges that the survey is based on found monumentation on the parcel being surveyed. No attempt was shown to find the point of commencement or boundary monumentation along the boundary of Beauclerc Gardens Replat, both of which are called for in the description. The legal description provides in part, "commence at an iron pipe located in the northeasterly line of Section 40, Township and Range aforementioned, at a point where said line is intersected by the line dividing Sections 31 and 32." Mr. Gloer testified that to ensure that the position of the boundary of real property was determined in complete accord with this real property description, an attempt to find the point of commencement and the boundary of Beauclerc Gardens Replat was required, and that there was no evidence that this was done. However, no evidence was presented to indicate that the survey as conducted was not in complete accord with the property description as attached to the survey map. Count VII alleges that the survey does not tie to an established identifiable real property corner. As Mr. Gloer testified, the parcel being surveyed was described by metes and bounds. Nothing on the survey tied into any identified corner of Beauclerc Gardens. The survey did not tie into a real property corner of either lot 1 or 2 of Beauclerc Gardens, which were the closest lots. Instead, the survey was tied to a monument on the line south of Beauclerc Terrace on that right-of-way, identified on page 12 as point "151." That point was not an established identifiable real property corner of Beauclerc Gardens. As Mr. Gloer testified, the survey did not tie to an established identifiable real property corner. Count VIII alleges that the field notes and raw data do not show either the fence corner or the water meter that supposedly made the two nearby corners inaccessible. The computation notes at page 12 and the survey map on page 1 do not show a monument set at the most easterly corner of the lot, but they do show an offset point and reasonably indicate that a water meter is at the corner. Similarly, neither the computation notes nor survey map show a monument set at the most westerly corner of the lot, but the survey map shows an offset monument and has an indication that there is a fence post at the corner. Mr. Gloer noted that neither the water meter nor the fence post, if they existed, had been positively located on the field notes or raw data as being at the corners.3/ Mr. Gloer noted that the coordinates list indicated that the location of the water meter was calculated. Count IX alleges that there is a monument shown in the field notes, point number 6, but not shown on the survey. As discussed earlier in connection with Count III, the field computation notes appear to show two monuments in fairly close proximity to the southernmost corner of the property. The survey map at page 1 shows only one monument at this corner, labeled "P.O.B." and described as "3/4 FIR NO ID" which, as noted above, refers to a 3/4 inch found iron rod without identification. This descriptive information appears to correlate with the side shot of point 6 found on page 6 of the raw data file and page 9 of the coordinates list. While the field notes are confusing, the Department did not show by clear and convincing evidence that point number 6 was not shown on the survey. Count X alleges that all the monuments were tied by side shots without a redundancy of the measurements. The raw data at page 4 indicate that the 1/2 inch found iron pipe and cap marked with "R. Miller," which is shown as the easternmost monument on the survey, was located by a side shot, a single measurement, and that Mr. Blackmon only turned one angle and one distance to that point. Similarly, the data at page 5 show that the 1/2 inch found iron pipe with no identification which is shown as the northernmost monument on the survey was located by a single side shot. Again, the data on page 6 show that the 3/4 inch found iron rod without identification which is shown as the southernmost monument and point of beginning on the survey was located by a side shot. The data sheets show no other ties to these points taken from another position, or otherwise demonstrate that redundant measurements were taken. Count XI alleges that the survey dated September 25, 2012, was negligently prepared. On this point, the Transcript records: Q. And then one final question, Mr. Gloer. In your professional opinion, expert opinion, do you believe that these ten MTS violations that you have discovered, taken as a whole constitutes-–of the minimum technical standards, taken as a whole, constitutes negligence in the practice of surveying and mapping in the State of Florida? A. I do. This question and answer, predicated on considering ten other violations as a whole, offers no insight as to whether a fewer number of violations might constitute negligence, or whether some of the violations are so serious, or are of such a nature, that they might do so even standing alone. No evidence was introduced at hearing to indicate that Mr. Haas' professional license has been previously disciplined. Exacta was the subject of five earlier administrative complaints alleging violations of Minimal Technical Standards, which were the subject of a Settlement Stipulation. Given the terms of the stipulation, there is no competent evidence showing that Exacta committed prior offenses. However, the Corrected Final Order Approving Settlement Stipulation constitutes prior disciplinary action against Exacta.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Agriculture and Consumer Services, Board of Professional Surveyors and Mappers: Finding Wesley Brian Haas and Exacta Land Surveyors, Inc., in violation of section 742.0351(1)(h), Florida Statutes, for failing to conduct surveying and mapping in accordance with the minimum technical standards prescribed by Florida Administrative Code Rules 5J-17.051(2)(b)3., 5J-17.051(3)(b)3., 5J-17.051(3)(b)15.b.(II), 5J-17.052(2)(a)8., and 5J- 17.052(2)(b)7.; imposing an administrative fine of $1500.00 on Wesley Brian Haas; and imposing an administrative fine of $4000.00 on Exacta Land Surveyors, Inc. DONE AND ENTERED this 14th day of April, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2015.
