The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent, Stephen Philips Kilmon, is presently licensed as a professional surveyor and mapper, having been issued license number LS5439 on January 26, 1995. On or about November 4, 1994, the Respondent filed an application for licensure as a professional surveyor and mapper on a form provided by the Board of Professional Surveyors and Mappers. In order to be eligible for licensure as a professional surveyor and mapper, the Respondent had to be a high school graduate. The Respondent graduated high school in 1976 and included proof of his graduation with his license application.3 In order to be eligible for licensure as a professional surveyor and mapper, it was not necessary that the Respondent have any formal education beyond graduation from high school. Among other things, under the caption "EDUCATIONAL HISTORY" the application form requested the following information: "Name of School, College, or University Attended," "Year of Graduation," and "Degree." On his application form the Respondent wrote that he had attended the University of Maryland, that he graduated in 1980, and that his degree was "BSCE." At one time the Respondent studied civil engineering at the University of Maryland, but he never obtained a degree in civil engineering from the University of Maryland. During the course of a deposition taken on April 1, 1998, the Respondent described his education formal education following high school as follows: Q. Okay. And what was your major course of study while you were attending the University of Maryland? A. Civil engineering. Q. And did you obtain a degree? A. No, I did not. Q. What years did you attend the University of Maryland? A. I attended the University of Maryland between 1976 and 1979. Q. All right. Whay did you leave school without a degree; was there any particular reason why? A. No particular reason. * * * Q. Okay. What year did you leave the University of Maryland? A. In 1979. * * * Q. Okay. How many credit hours did you accumulate prior to leaving college? A. I don't recall what the final number really was. Q. How many was [sic] required for graduation? A. Because I never graduated, I don't really recall what was required. * * * Q. All right. I'm trying to determine, and perhaps you can help me, did you leave in your sophomore year, junior or senior year? A. It was in my sophomore year. Later, in a letter dated September 30, 2001, the Respondent wrote to the Board of Professional Surveyors and Mappers and explained his education after high school as follows: While being a "Fact" and "Expert" witness for a Plaintiff in Court, it has been brought to my attention by attorneys on our team that my University of Maryland Bachelor of Science Civil Engineering (BSCE) degree had become unaccredited over time due to University administrative circumstances beyond a student's (my) control. When I was at the age of 18, I was severely handicapped with chronic vision disorientation (Lazy Eyes). Following my freshman first semester I underwent major eye surgery to begin to correct my handicap. I transferred from UM, College Park Campus to become enrolled at the University of Maryland Baltimore County (UMBC) Campus in a specialized handicapped program for persons with various disabilities for nearly two and a half years completing my MSCE degree there. Within a few days of my graduation in May of 1979, my degree I received was taken back and held in limbo due to a program administration accreditation error (University Red Tape Error) which went on for years contested by several sets of parents, and by my father on my behalf. At this same time my mother pas[sed] away in a car accident and I left Maryland behind. I moved to Miami in late November of 1979 and began my career in Surveying with Zurwelle-Whittaker on Miami Beach. My father indicated to me in 1991 before he pas[sed] away from liver cancer, that after litigation settled the dispute, my degree was reinstated. After all this time had pas[sed] I never used or mentioned having a degree unaccredited or otherwise, because I knew technically I didn't keep it. Besides[,] my life went on without any need for a degree. In 1994 I applied to obtain a Surveyor and Mapper's license, which does not require a college degree, only a high school diploma. However, on my license application I did write that I received my Bachelor of Science Civil Engineering (BSCE) degree from the University of Maryland, which as I recall, my father said it became reinstated. Well here's an update - it wasn't. And in hindsight I should have checked out my degree status myself, but I didn't. I don't wish to misrepresent my credentials to anyone. Its [sic] hard enough to have done the time in school, and not be rewarded with the credit for it. Which brings me to this conclusion. I have learned over the past 25 years what really matters most. I acquired the discipline and knowledge to successfully open doors in life and move on, without regrets. If you have any further questions or need additional information please do not hesitate to contact me, directly.4 Item 4 of the application form required that the Respondent provide the following: Proof of employment in responsible charge as a photogrammetric mapper in the state for 24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state which maps were prepared by or under the supervision of the applicant using photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map. Item 5 of the application form required that the Respondent provide a sworn affidavit including the following: The name and address of the applicant. Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards. Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards. A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping. In response to the foregoing requirement, the Respondent included information about six specific projects he had worked on while he was employed with Carr Smith Associates. Those specific projects were described as: Palmetto Expressway Improvement Project [From SW 16 St. to SW 2 St.]; Florida Board of Regents [FL Inter. Univ., University Park Campus]; Metro-Dade County, Port of Miami Authority [Port of Miami Landbase Model]; Florida Board of Regents [FL. Inter. Univ., North Miami Campus]; City of Coral Gables, FL. Public Works Dept. [City-Wide GIS]; Broward County Aviation Department [Ft. Lauderdale-Hollywood International Airport GIS Project and North Perry Airport GIS Project]. With regard to all six of the itemized projects mentioned immediately above, the Respondent submitted the maps and the verified, itemized reports "detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map," as required by item 4 of the application form.5 Those maps and reports were sufficient to establish that the six projects described immediately above were all performed under the supervision of the Respondent. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates did not have the equipment necessary to do photogrammetry. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted photogrammetric services to Southern Resource Mapping of Miami, Inc. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted with Southern Resource Mapping of Miami, Inc., for photogrammetric services for the projects described in paragraph 9, above. The fact that these projects were subcontracted to Southern Resource Mapping of Miami, Inc., was disclosed in affidavits submitted with the Respondent's application.6 At all times material to this case, Joseph Bilu has been a certified aerial photogrammetrist, and has been a vice- president of Southern Resource Mapping of Miami, Inc. Joseph Bilu provided photogrammetric mapping services in the name of Southern Resource Mapping of Miami, Inc., on all of the projects itemized in paragraph 8, above. The photogrammetric mapping services provided by Joseph Bilu under his subcontracts with Carr Smith Associates for the projects itemized in paragraph 9, above, were all performed under the supervision of the Respondent. The Respondent was in responsible charge of the photogrammetric mapping projects itemized in paragraph 9, above.7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing in its entirety the Administrative Complaint issued against the Respondent. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2006.
Findings Of Fact At all times pertinent to the matters contained herein, Respondent was licensed as a professional land surveyor in Florida and held license No. LS 0002934. On October 9, 1984, the Petitioner, Board of Professional Land Surveyors, after an informal hearing at which Respondent was present, entered a Final Order finding that he had, in several instances in the practice of professional land surveying, failed to perform in accordance with the minimum technical standards for land surveying and ordered his license to be suspended for 6 months; that he pay a $500.00 fine within 30 days of the Order; and that he submit a series of surveys and field notes for the review of the Board over a period of time subsequent to the reinstatement of his license. Respondent contends he agreed to an informal hearing because of recommendations from a representative of the Department of Professional Regulation's, (DPR), local investigative office. However, he was present at the hearing, was afforded an opportunity to present matters in his behalf, and through counsel, filed an appeal to the 4th District Court of Appeals of the Final Order in question which appeal, he subsequently dismissed. Respondent failed to pay the $500.00 fine on time as required. He contends this was because he had appealed the Final Order and was only one month late. Respondent also failed to file the required sets of surveys after the reinstatement of his license. The first was 6 months late and he cannot give a reason for that other than he was in mild shock as he felt he was a victim of "judicial error." His attorney was appealing the Final Order and he didn't pay attention to the dates. The 4th set of surveys was due in February, 1987 and has not been submitted as of this date. He contends it was not his intention to drag his feet in these submissions. After receiving the reviewer's criticisms of his earlier submissions, he felt they were not in keeping with the minimum standards and he requested clarification. He claims this is the reason for the delay but this excuse is not persuasive. His comment that he failed to pay attention to the dates for compliance with the requirements of the Final Order seems to be somewhat indicative of his attitude toward the practice of land surveying as will be seen from the evidence as discussed below. Consistent with the Board's Order, however, Respondent submitted several surveys which were considered to be of poor quality. The first set was returned with numerous negative comments and the third set was returned for further preparation and correction to prevent "further disciplinary action." The second set was considered to be "in substantial compliance with the terms of the [Board's] Final Order." Specifically identified for comment were surveys done by the Respondent for Mark and Betty Sivik, Carolyn Riddle, Eugenio Gonzalez, Teresa and Dane Curry, and Silvia Garcia. As to the individual surveys, the following discrepancies were noted: Sivik field notes showed no measurements made by Respondent. field notes showed no angles turned by Respondent. field notes showed no relationship to fractional corners. Riddle field notes show no E-W measurement by Respondent. field notes show no angles turned by Respondent. no plat was submitted with the survey. Gonzalez field notes do not show complete measurements by Respondent. field notes do not show angles turned by Respondent. field notes do not show relationship to fractional corners. field notes show a fence on three sides but the survey does not. Curry field notes do not show angles turned by Respondent. there is a .9 foot discrepancy as to one line between field notes and the survey with no explanation. as a result of this it cannot be determined if the survey is accurate. Garcia measurements to corners shown in field notes are not shown on survey. Respondent did not submit a plat without which it cannot be determined if the survey is complete or accurate. (Without the appropriate field notes, there is no way to tell if the survey is accurate, complete, or in accord with the legal description of the property.) In respect to all of the above surveys, none states on its face the type of survey it is. Respondent contends, in this regard, that his use of the letters "P.L.S.", (Professional Land Surveyor) after his signature indicates all are land surveys. This is not sufficient identification since professional land surveyors do various different types of surveys including land surveys, topographical surveys, reestablishment surveys, and the like. Respondent takes exception to the Board reviewer's comments about and approach to his surveys. As to the issue of angles, he contends that the minimum standards applied by the Board require only that the minimum angles shall be listed and do not require that all angles be turned in the field. He contends that the angles in question were a matter of record in his office. Mr. Cole, the Boards expert, agrees, stating it is not necessary to turn every angle but enough should be turned to insure an accurate description of the property and to verify the actual angles. There are other ways of verifying angles than turning them, but in Respondent's field notes, there was insufficient evidence to show any type of verification of the angles done by others previously. As to the discrepancies between field measurements and the legal descriptions in some cases, Respondent nonetheless contends they are all within standards. Respondent's approach here is somewhat cavalier. Any discrepancies which exist must be shown. The purpose of a survey is to show the current status of the property and it is improper and ineffective to rely solely on the previous record. To list discrepancies does not clutter up the survey nor is it likely to confuse. A failure to show them could well create major problems for a future user of the survey. The .9 foot discrepancy, described by the Respondent as well within the 1:5,000 error standard, is incorrectly described. It is more like an error of 1:200 and is, therefore, not insignificant. It should have been commented on. The survey done for the Currys can readily be classified as a topographical survey as it describes elevation in at least two places. Therefore, it should have been identified as a topographical survey on the face of it, but this is a minor discrepancy. The fence running across the back of the Gonzalez property should have been identified as such by the use of appropriate x's on the survey. It was not. Respondent has been in the private practice of surveying since he passed the state examination in February, 1976. He feels that the Board's case is based on the use of a hypothetical survey to establish standards against which his work was compared. The minimum standards set out in the statute are what, he feels, should control as they speak for themselves. He has always tried, throughout his years in practice, to protect his clients, and to his knowledge, his work has never cause anyone to lose money. He defines precision as the way that a line or angle is measured and accuracy as the manner in which the finished drawing portrays that there are or are not problems in the subject of the survey. With regard to the attack on his field notes, Respondent contends that the minimum standards merely call for field notes. Their sufficiency is determined by the standards of the practice in the community. He believes his notes contain measurements, calculations and ancillary information sufficient to show the required identifying information. The laws that govern surveyors' performance require many factors to be considered such as encroachment, senior rights, acquiescence and adverse possession, and the Respondent urges that in the interest of simplicity for the benefit of the users of the survey, it is necessary to reduce the quantity of evidence on the survey to the minimum necessary to allow it to be used effectively, not for the convenience of the state examining board. If there are no problems, then there is nothing else to show and his backup office records are adequate. Though Respondent feels the Board's criticisms of his notes are irrelevant, the better weight of the evidence is that they are not. Though Respondent contends his work in all cases exceeds the requirement for error, (1:5,000; 1:7,500; and 1:10,000 as appropriate), the error in the Curry survey shows his possible lack of understanding of the rules. He considers himself to be a mixture of the textbook and practical surveyor applying his extensive practical field experience to the textbook requirements. The evidence indicates, however, he does not always do so with the required degree of accuracy and skill. Respondent agrees with the 20 minimum standards set out in Rule 21HH- 6.003. They relate to all surveys and, he believes, should be followed. They constitute the community standard and a failure to follow them would be a failure to follow the community standards. His quarrel is not with the rule but with the agency's interpretation and alleged expansion of its own rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered land surveyor be suspended for one year and that upon reinstatement his license be placed on probation for five years under such terms and conditions as imposed by the Board as will insure current and continuing review of his activities within the profession. RECOMMENDED this 24th day of August, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1987. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the proposals of the parties. Petitioner's Proposed Findings of Fact (FOF). 1. Accepted in FOF 1. 2. Accepted in FOF 2. 3 - 7. Accepted in FOFs 2 and 4. 8. Accepted. 9 - 11. Incorporated in FOF 4. 12, 13. Accepted. 14, 15. Incorporated in FOF 4. 16. Incorporated in FOF 5. 17, 18. Accepted. 19, 20. Incorporated in FOF 5. 21 - 30. Incorporated in FOF 6. 31 - 33. Accepted. 34. Incorporated in FOF 7. 35 - 37. Incorporated in FOFs 8 and 9. 38, 39. Incorporated in FOF 16. 40. Redundant to Proposed FOF 2. COPIES FURNISHED: ALLEN R. SMITH, JR., EXECUTIVE DIRECTOR DEPARTMENT OF PROFESSIONAL REGULATION DIVISION OF LAND SURVEYORS 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DAVID R. TERRY, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32301 KENNETH O. HART 3198 RIDDLE ROAD WEST PALM BEACH, FLORIDA 33406 VAN POOLE, SECRETARY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 JOSEPH A. SOLE, GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 ================================================================= AMENDED AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF PROFESSIONAL LAND SURVEYORS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, DOAH CASE NO. 87-2158 vs. DPR CASE NO. 0078982 KENNETH O. HART, Respondent. /
The Issue The issue in this case is whether Brevard County's 1999 Comprehensive Plan Amendments B.12, B.13, and B.14 (the Plan Amendments) are "in compliance."
Findings Of Fact General Besides the introduction of the Plan Amendments themselves and a few other documents, Petitioners case-in-chief consisted of examination of Susan Poplin, a Planning Manager for DCA, as an adverse witness, and the testimony of Petitioner, Charles F. Moehle. Most of Poplin's testimony was directly contrary to the positions Petitioners were seeking to prove. Moehle's testimony consisted primarily of conclusions and statements disagreeing with the Plan Amendments. Petitioners provided no data or analysis in support of Moehle's statements and conclusions. Often, Moehle's testimony did not identify specific errors allegedly made by the County. Much of Moehle's presentation was disjointed and difficult to understand. Petitioners also challenged several items which should have been challenged following prior amendments to the County's Plan. For example, Poplin testified that all of the wetland provisions in the challenged Conservation Element B.12 amendments were part of a prior plan amendment and were not changed by the Plan Amendments. See Findings of Fact 7-8, infra. Standing Petitioners' allegations of standing are in paragraph 6 of the Amended Petition for Formal Review: EFFECT ON PETITIONERS' SUBSTANTIAL INTERESTS Petitioner, MODERN owns property in Brevard County, the value of which will be reduced by THE AMENDMENT. Additionally, petitioners MODERN and MOEHLE own property in Brevard County and pay property taxes in Brevard County. Additionally, THE AMENDMENT will cause property tax receipt's of Brevard County to decline because of the reduction in value caused to MODERN'S, MOEHLE'S, and other similarly situated property in the county. Additionally, THE AMENDMENT will cause MODERN'S and MOEHLE'S property taxes to increase due to the additional government employees required to implement and enforce THE AMENDMENT and due to the fact that the property taxes imposed upon property which are not effected [sic] by THE AMENDMENT will necessarily increase in order to offset the loss of property tax revenue from private property which is devalued as a result of THE AMENDMENT. MOEHLE and MODERN have appeared before the Brevard County Board of County Commissioners at public meetings and hearings as well as communicating (verbally and in writing) with their growth Management/Planning & Zoning Departments concerning these matters for several years. In an attempt to prove Petitioners' standing, Moehle testified that he has been a resident of Brevard County since 1958. He also testified that he is President of and owns a substantial interest in Petitioner, Modern, Inc. He testified that both he himself and Modern own real property in Brevard County, and that, as such, both are taxpayers. Moehle also testified that he is "affected by these regulations." He gave no specifics as to how he is affected. He also did not testify that Modern was affected. Before concluding his brief testimony on standing, Moehle asked the ALJ if he had to "ramble on some more" about standing and was asked whether he submitted "oral or written comments, comments, recommendations or objections to the County between the time of the transmittal hearing for the Plan amendment and the adoption of the Plan amendment." Moehle answered: I submitted during the whole period of this - I attended a number of hearings that I knew about during this whole process and I would say that, yes, I did, but not all hearings. Some were questionable - some of my problems or some of the meetings that the action was taken on. So they do have my comments, they've had my comments from me on various issues complete back before and including the Settlement Agreement. The evidence was that all hearings and meetings relating to the "Settlement Agreement" to which Moehle referred in his testimony occurred prior to the transmittal hearing for the Plan Amendments at issue in this case on November 30, 1999. The referenced "Settlement Agreement" was the Stipulated Settlement Agreement entered into in May 1997 to resolve DOAH Case No. 96-2174GM. The County amended its Comprehensive Plan to implement the Stipulated Settlement Agreement on August 24, 1999, by Ordinance 99-48. By Ordinance 99-52, adopted October 7, 1999, the remedial amendments were clarified to include the correct Forested Wetlands Location Map. Ordinance 99-49 and 99-52 both state that the plan amendments adopted by them "shall become effective once the state planning agency issues a final order determining the adopted amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(9), or until the Administration Commission issues a final order determining the amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(10)." The stated "Justification" for Policy 5.2 of the B.12 Plan Amendments at issue in this case was: "The above language was part of a stipulated settlement agreement between DCA and the County. This agreement became effective after the transmittal of the 99B Plan Amendments." Apparently for that reason, the B.12 Plan Amendments at issue in this case, specifically under Objective 5 and Policies 5.1 and 5.2, underlined the wetland provisions previously adopted by Ordinance 99-48. This underlining may give the misimpression that these wetlands provisions were being amended through adoption of Ordinance 2000-33. To the contrary, those amendments already had been adopted, and all hearings on those amendments already had occurred prior to transmittal of the Plan Amendments at issue in this case. Other than testifying that he attended hearings and made submittals "before and including the Settlement Agreement," Moehle did not specify when he attended, or what if anything he said or submitted. Nor did he offer any testimony or evidence that he appeared on behalf of Modern. No minutes or other evidence were produced for the record showing his appearance or comments, recommendations or objections. To the contrary, Petitioners' evidence indicates that Moehle was not one of the individuals who offered public comment at either the transmittal hearing on November 30, 1999; the Land Use Citizens Resource Group meeting on November 4, 1999; or the Local Planning Agency Adoption Meeting on May 15, 2000. Paragraph 6 of the Amended Petition, also alleged: that the value of property owned by Modern will be reduced; that the Plan Amendments will cause property tax receipts to decline because of a reduction in the value caused to Petitioners' property; and 3) that the Plan Amendments will cause Petitioners' property taxes to increase due to additional government employees required to implement and enforce the Plan Amendments and due to an increase in taxes for properties not directly affected by the Plan Amendments. None of these allegations were supported by record evidence. Notice Petitioners' allegation of improper notice is contained in paragraph 7.I. of the Amended Petition: Petitioners allege that THE AMENDMENT is subject to the notice requirements of Florida Statute subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2), and or 125.66(4) and that Respondent COUNTY has failed to comply with said statutes. (Several other paragraphs of the Amended Petition also allege inadequate notice. See Findings of Fact 19, 28, 44, 50, 54, 63, 65, and 76, infra.) Petitioners filed copies of the applicable advertisements. Moehle testified that the type was "wrong" and the size was "wrong" - the exact nature of the alleged error was not stated. But review of the advertisements for the transmittal and adoption hearings reveals that both are two columns wide, and the headline appears to be in a very large, bold type. Other than Moehle's general complaint about the type being "wrong," there was no testimony or other evidence that the type is not 18-point. Other aspects of the advertisements do not appear to be challenged by Petitioners. The advertisements themselves show that the transmittal hearing was held on November 30, 1999 (a Tuesday) and that the advertisement was run on November 22, 1999, eight days prior to the day of the hearing. They also show that the adoption hearing was on May 16, 2000 (a Tuesday). The advertisement for the adoption hearing was run on May 10, 2000, six days prior to the meeting. The proof of publication shows that the advertisements were not in a portion of the newspaper where legal notices or classified ads appear and that the Florida Today is a newspaper of general circulation. The evidence also included advertisements for local planning agency hearings and meetings relating to the Plan Amendments other than the transmittal and adoption hearings. These other advertisements appear to have been published in legal ad sections, and the type is smaller than that used for the transmittal and adoption hearings. It appears that Moehle was referring to these advertisements when he said the type and size was "wrong." Species and Wetlands Preservation Versus Promoting Infill Development Paragraph 7.IV. of the Amended Petition alleges: The challenged provisions of the THE AMENDMENT, as set forth herein below, violate the legislative intent and spirit of Fl. Stat. Ch. 163, Part II because they place species and wetland preservations over the stated policy goal of promoting infill and development in areas which have concurrency and infrastructure available. The challenged provisions promote leap frog development by making the development of parcels of private property which have concurrency and appropriate infrastructure but also have any quantity of listed species habitat or wetlands unusable. Fl. Stat. Sections 163.3177(10)(h), 163.3177(11). No evidence was offered supporting the claim that species and wetland preservation were "placed over" the goal of promoting infill. Nor was there any evidence provided by Petitioners to show that leapfrog development or urban sprawl was caused by protecting wetlands. To the contrary, Poplin's testimony discussed urban sprawl and leapfrog development in terms of impacts to services and facilities. She clearly stated: "[T]here are no set priorities. We look at each individual local government on a case by case basis. . . . So . . . [it] depends on the context in which its based [sic] in the plan." Poplin also testified that the County had levels of service in place for facilities and services pursuant to Rule 9J-5.0055(1)(a), and that the County's Plan and the subject Plan Amendments have level of service standards which meet the requirements of Rule 9J- 5.0055(2). Poplin also testified that the County had a Capital Improvements Element which was in compliance with Rule 9J- 5.0055(1)(b). She also testified that there was coordination of the various comprehensive plan elements as required by Section 163.3177. Thus, she concluded, the conservation and capital improvements (infrastructure) elements interacted properly. There was no evidence to the contrary. Section 163.3177(10)(h) states that it is the intent of the Legislature to provide public services concurrently with development. Section 163.3177(11) discusses the legislative intent to have innovative planning to address urbanization, protection of environmentally sensitive areas, land use efficiencies in urban areas and conversion of rural land uses. No evidence of any kind was presented regarding these provisions. Certainly, no data and analysis showing failure to meet these statutory provisions were presented by Petitioners. Listed Species Definition Paragraph 8.I.A.2 of the Amendment Petition states: Listed Species definition - pg 11. This change should not be made because the updated Glossary of the Comprehensive Plan was not made available timely for public review and public comments per the hearing and notice requirements of Fl. Stat. Sections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and or 125.66(4). Prior to the Plan Amendments, the Conservation Element had a Directive entitled "Wildlife." The "Wildlife" directive stated in part: "Development projects should avoid adverse impacts to species listed as endangered, threatened, or species of special concern." The directive also included a definition of the term "listed species": "those species which are listed as either endangered, threatened or as species of special concern." The Plan Amendments deleted these provisions. The stated Justification for deleting the first provision was: "Objective 9 embodies the intent of this directive." The stated Justification for deleting second provision was: "'Listed species' have been defined in the updated Glossary of the Comprehensive Plan." As in several other places in the Amended Petition, Petitioners complain about lack of notice and an opportunity for a hearing as to the updated Glossary. Actually, it appears that the Glossary was not updated along with the Plan Amendments. For that reason, there were no Glossary changes to be noticed. Although the Glossary was not updated to provide the definition of the phrase "listed species," as indicated in the Justification for deleting it from the Directives, the phrase is commonly used to refer to species are listed as threatened or endangered under various state and federal regulations. Rule 9J-5.013(1)(a)5. requires identification and analysis of natural resources including "species listed by federal, state, or local government agencies as endangered, threatened or species of special concern." Species that are federally listed as endangered or threatened (50 C.F.R., Section 17.11) fall under the jurisdiction of the U.S. Fish and Wildlife Service in accordance with the Endangered Species act of 1973, as amended (16 U.S.C. Section 1531, et. seq.). Listed and unlisted bird species, other than waterfowl and game birds, are also federally protected by the Migratory Bird Act (16 U.S.C. Section 703 et. seq.). The bald eagle has additional federal protection under the Bald and Golden Eagle Protection Act (16 U.S.C. Section 668- 668d). Marine animals (including whales, dolphins, and the West Indian Manatee) are also protected by the Marine Mammal Protection Act of 1972 (16 U.S.C. Section 1361 et. seq.) In addition, 24 species of vertebrates are listed by the State as endangered, threatened or species of special concern and are under the jurisdiction of the Florida Fish and Wildlife Conservation Commission, Chapter 39, Florida Administrative Code. Both snook and Atlantic sturgeon receive further state protection under Chapter 46, Florida Administrative Code. The Florida Endangered and Threatened Species Act, 1977, also protects species listed as endangered, threatened or species of special concern under Chapter 372, Florida Statutes (2000). Chapter 372, Florida Statutes (2000), provides additional protection for the American alligator as defined in the Alligators/Crocodilla Protection Act. Sea turtles and the West Indian manatee are further protected by the State through the Marine Turtles Protection Act (Chapter 327, Florida Statutes (2000)) and the Florida Manatee Sanctuary Act (Chapter 327, Florida Statutes (2000)). Petitioners did not prove beyond fair debate that the phrase "listed species" cannot be understood without a specific definition within the comprehensive plan. Conservation Element Policy 8.5, Protection Of Vegetative Communities Paragraph 8.I.B. of the Amended Petition states: Policy 8.5 - pg 41. This change should not be made because the justification is not correct. These referenced lists were not made available to the public at the relevant public hearing for review and comment in violation of the requirements of Fl. Stat. Section 163.3184. The modification goes beyond the stated intent to merely improve readability and clarify the existing policy in that it actually modifies existing policy. . . . (The last clause was stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. Before the Plan Amendments, Policy 8.9 of the Conservation Element provided that the County would develop a program for the protection of vegetative communities from inappropriate development by 1992. The former provision was replaced with Policy 8.5, which revises the action date to 2002 and states that the County shall protect vegetative communities from inappropriate development. G1 and G2 vegetative communities, as contained in the Florida Natural Areas Inventory, were added to S1 and S2 communities (which were already in the Plan) for consideration for protection. Poplin testified that the G1 and G2 categories were defined by the Florida Natural Areas Inventory and were synonymous with the S1 and S2 categories which were already defined in the Plan. The adopted "Justification" for new Policy 8.5 itself indicates that the addition of the G1 and G2 categories "did not add additional vegetative communities that may be considered for protection." In other words, nothing actually changed as to the vegetation (or types of vegetation); only the nomenclature or titles of categories changed. Conservation Element, Objective 9 and Policy 9 Species of Special Concern, Crucial/Critical Habitat Paragraph 8.I.C.,D., and E. of the Amended Petition states: Objective 9 and Policy 9, including sub- sections A, B, C, D, E, of 9.2 (species of special concern, crucial/critical habitat) - pg 43. Species of special concern should not be added. It was discussed at a properly advertised public hearing and its addition was rejected. It was added back at a subsequent and not properly noticed workshop meeting and did not allow proper public input. It is unjustifiably onerous to the regulated public as added, in violation of Fl. Stat. 120.52(8)(g). Crucial habitat should not be allowed to [be] substituted for critical habitat because the new glossary of definitions was not completed timely to allow public review and comment. The resource maps to be used are not identified or indicated that they have been created beyond "draft" status or had proper notice, public review or comment. The reduction from 5 acres to 1 acre in 9.2.C was improperly added at a workshop subsequent to the properly noticed public hearing at which this item was disposed of with public hearing and comment and leaving the size of 5 acres. The provision that the "acquisition of land by the Brevard County Environmentally Endangered Lands Program shall be voluntary, and shall not include the use of eminent domain" should not be removed in Policy 9.4 (pg. 45). These new provisions do not meet the requirements of Fl. Stat. Sections 120.58(8) and 120.525, Fl. Stat. Sections 163.3161(18), Fl. Stat. Sections 163.3181, Fl. Stat. Sections 163.3184(15), Fl. Stat. Sections 125.66(2), and or Fl. Stat. Sections 125.66(4). (The identified sentence and references were stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. As to "crucial habitat," amended Policy 9.2 of the Conservation Element requires that an ordinance be developed by 2002 requiring a "crucial habitat" review at the pre-application stage of certain projects. Previously, the plan required development of an ordinance in 2004 requiring a "critical habitat" review in those situations. Apparently, "critical habitat" was defined in the pre-amendment Glossary. (Neither the Glossary nor the rest of the County's Comprehensive Plan prior to the Plan Amendments was put in evidence.) No regulations regarding "crucial habitat" were in effect as of final hearing. A definition of the term "crucial habitat" might well be desirable. (Apparently, an amendment to the Glossary to include such a definition is being considered by someone--it is not clear from the evidence by whom.) But it is possible to use dictionary definitions of "crucial" and "habitat" to derive a useful meaning of the term "crucial habitat" used in Policy 9.2 of the Conservation Element. Petitioners did not prove beyond fair debate that the term "crucial habitat" cannot be adequately understood without a specific definition in the comprehensive plan. "Species of special concern" is a phrase used by Rule 9J-5.013(1)(a)5. in describing natural resources to be identified and analyzed in a local government's conservation element. The "resource maps" mentioned in paragraph 8.I.C., D., and E. of the Amended Petition are not new to the County's Comprehensive Plan. Prior to the Plan Amendments, Policy 10.2.A. stated that the County's Office of Natural Resources Management must "develop resource maps showing potential areas for critical wildlife habitat for threatened and endangered wildlife species." Amended Policy 9.2.A. requires that Office to "use resource maps which show potential areas of crucial wildlife habitat for threatened and endangered wildlife species and species of special concern." While the descriptions of these maps were changed by the amendment, the general manner in which they are identified is the same. It was not proven beyond fair debate that the amendments cannot be adequately understood without identification in a more specific manner or reference to maps already completed. Petitioners' next complaint in paragraph 8.I.C., D., and E. of the Amended Petition was that the threshold for required crucial habitat review in Policy 9.2.C. of the Conservation Element should not have been changed from five-acre projects to one-acre projects. Petitioners' primary argument was that the County discussed this change at a workshop. The only evidence in support of this argument was Moehle's testimony: "[T]he changes that show up in here were rejected in those previous hearings so the public has the impression well, that item is done and settled. Then all of a sudden at a workshop it shows up when nobody - they are not necessarily -- you can't obtain the advance agenda for that and you find a notice in the paper from time to time." In fact, the workshops were noticed in the newspapers. In addition, the transmittal and adoption hearings were noticed. See Findings of Fact 12-14, supra. As for Petitioners' request for reinstatement of the language regarding voluntary acquisition of environmentally endangered lands, former Policy 10.4 addressed development of an acquisition program; amended Policy 9.4 addresses a continuation of that program. The Justification explains that the amendments were "intended to reflect the achievement of this policy as a result of the EELs [Environmentally Endangered Lands] Program." There was no evidence to support the argument that removal of the voluntary acquisition language in any way changes the EELs Program or creates a compliance issue. Conservation Element Policy 9.13, Species of Special Concern Paragraph 8.I.G. of the Amended Petition stated: Policy 9.13 - species of special concern, habitat rarity, pg 48. This change is inconsistent with the same Florida Statutes and for the same reasons as I.C, I.D, I.E (A, B, C, E, E) and I.F above. Policy 9.13 contains a requirement to develop model management plans for species of special concern dependent on habitat rarity and loss rates. The amendment to former Policy 10.13 merely changes the target date (from 1990 to 2002) and adds "species of special concern" to the other resources sought to be addressed by the model management plans. The provision does not establish new regulations. It merely calls for future action in the development of model management plans. Again, there was no evidence to support the argument that these changes created a compliance issue. See Findings of Fact 32-33, supra. Scrub Habitat Map Paragraph 8.I.H. of the Amended Petition stated: Appendix - List of Maps, pg 52. The Scrub Habitat Map should not be included because it is part of the Scrub Habitat Study done in Brevard County which was not adopted/accepted as a final map by the Brevard County Board of County Commissioners. The map is a "draft" map done over 5 years ago, not finalized, and not accurate. Objections at public meetings, with Brevard County Staff, and with the outside consultants preparing the map have never been addressed on the map. Among the inaccuracies are hundreds (maybe thousands) of acres on government lands. The map is wholly deficient and incorrect to become an official map representing the scrub habitat of Brevard County. It doesn't come close to accurately depicting the scrub situation of Brevard County. The map is not supported by competent substantial evidence, has not been officially adopted by the County Commission, the requisite public notices have not been held. Any policy or regulation based upon the map would be equally erroneous and would result in unnecessary regulatory costs, and would be arbitrary or capricious and would be based upon inadequate standards. At final hearing, Moehle testified: "The scrub habitat map as included in the amendments does not include the best available information which information has been available for a number of years." But the Scrub Jay Habitat map Petitioners sought to use to prove this contention (Petitioners' Exhibit 6) was not admitted into evidence because it was not authenticated. The Scrub Habitat Map apparently added to the Appendix of Conservation Element maps through the B.12 Plan Amendments does not appear to map scrub on federal lands. (At least, no scrub is indicated in the extensive federal lands on the map.) But there was no competent evidence as to the significance of the failure to map scrub habitat on federal lands. (Nor did Petitioners cite to any authority for the proposition that excluding federal lands outside the County's jurisdiction is a violation of Chapter 163 or Rule 9J-5.) While Petitioners never clearly articulated their concerns about the Scrub Habitat Map, it appeared that they might have had concerns about the impact of the map on protection of scrub jays. Specifically, Petitioners seem to contend that some scrub jays will not be protected as a result of the map's omission of scrub on federal lands. But, in that regard, amended Conservation Element Policy 9.2. in the B.12 Plan Amendments provides for the development of an ordinance by 2002 that would provide, among other things, that if any endangered or threatened species or species of special concern are found on a project site, or there is evidence that such a species is onsite, the relevant state and federal agency permits would have to be obtained and documented prior to issuance of a building or construction permit. Once adopted, these regulations would protect scrub jays wherever the birds exist. Another apparent concern was that the Scrub Habitat Map allegedly was over 5 years old. Meanwhile, other maps allegedly have been or are in the process of being developed. But Petitioners' evidence was insufficient to prove beyond fair debate that the Scrub Habitat Map was not the best available data at the time of adoption of the Plan Amendments. Land Use Element, Administrative Policies Paragraph 8.II. of the Amended Petition states: Comprehensive Plan Amendment 1999B.13 The Administrative Policies 1 thru 8 (pg iv) which have been proposed for inclusion in the future Land Use Element by the County Attorney and added by a April 29, 2000 workshop were not timely provided for public review and comment by a properly noticed hearing in violation of the notice requirements of Florida Statutes subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and 125.66(4). They are over- broad, too general in nature, vague, and fail to establish adequate standards for county staff decisions, and vest unbridled discretion in the county staff in violation of Florida Statute 120.54(8). Detailed examples of this include: In Administrative Policy 1 - Brevard County zoning officials, planners and the director of planning and zoning should not be arbitrarily, capriciously, and without adequate defined standards be recognized as expert witnesses. Standards with detailed qualifications should be developed and included for each category of expert before this provision is considered for adoption. In Policy 2 (page iv) county staff recommendation should not automatically be considered expert testimony without qualifications. Page 1 under DIRECTIVES. The Future Land Use paragraph should not be deleted until sufficient emphasis has been placed in the requirement to ensure that sufficient land uses are available to support the anticipated population. It has not been at this time, in violation of Florida Statutes subsections 163.3177(2), 163.3177(3)(a), 163.3177(6)(a) and 163.3177(6)(f). As to 8.II.A., the evidence indicated that the advertisements were published in the time frames required and according to the standards set out by statute. See Findings of Fact 12-14, supra. Furthermore, Petitioners failed to establish that the Administrative Policies 1-8 were unavailable at the public hearing or that the Board of County Commissioners was not authorized to consider those policies. The language of the last sentence of paragraph 8.II. should have been stricken with similar provisions at the beginning of the final hearing because of its reliance on Section 120.54(8), which addresses rulemaking activities and not the compliance requirements of Chapter 163. There was no competent, substantial evidence to support any of the other allegations in paragraph 8.II.A. As to 8.II.A.(iii), there was only Moehle's statement regarding the lack of land availability while he was questioning Poplin. Poplin testified that the County should provide an adequate amount of different land uses to accommodate a variety of people and activities. She also testified that the County had provided more than enough residential land to accommodate projected populations. Poplin noted that the County's EAR (Evaluation and Appraisal Report) included or referenced several sources indicating that the County has more than enough land to meet their residential and non-residential needs through the planning time frame. In fact, she testified that land allocated for residential use is over 170 percent of the land necessary for the County's projected population. In explaining the "right-sizing" undertaken in the Plan Amendment, Poplin testified that two major changes have occurred since the adoption of the original County Plan. First, the County sold a substantial amount of land to the water management district; this land is now designated as Conservation. Secondly, some developments have been built to less than their full potential. Poplin testified: "My understanding of the County's actions is that this right sizing is to recognize areas that have developed and maybe have developed at lower densities. So by revising the densities on the map, they're recognizing this." Finally, Poplin testified that the future land use map (FLUM) and the policies proposed in the subject Plan Amendment are consistent with previous actions, previous development patterns, and previous purchases that have occurred within the County. As for Section 163.3177(2), cited by Petitioners at the end of paragraph 8.II.A.(iii) of the Amended Petition, the statute requires coordination of the land use elements. Poplin testified that the County has adequate facilities and services to provide for the land use plan proposed in its FLUM. Section 163.3177(6)(f) requires a housing element. There was no evidence that these elements do not exist in the County's comprehensive plan. Land Use Element Policy 1.1, Residential Land Use Designations Almost all of Paragraph 8.II.B. of the Amended Petition was stricken. See Preliminary Statement. Only the title and last sentence remained: Residential Land Use Designations, Policy 1.1 (reduced densities - pg 14). Property owners (including PETITIONERS) whose land use/zoning classification is no longer in compliance with the comprehensive plan amendment have not been notified as required by Florida Statutes subsection 125.66. Petitioners themselves provided evidence establishing that the statutory notice was properly given. See Findings of Fact 12- 14, supra. Land Use Element Policy 1.2, Public Facilities and Services The last sentence of Paragraph 8.II.C. of the Amended Petition was stricken. See Preliminary Statement. The remaining allegation was: Public Facilities and Services Requirements, Policy 1.2 (page 15). In subsection E, the prohibition by use of the words "shall not" are too harsh, restrictive, and confiscatory and should be replaced "shall not be required at the expense of the County." But the language of Criterion F under Future Land Use Element (FLUE) Policy 1.2 already states what Petitioners seek. Simply stated, Petitioners want the policy to state that private parties were not prohibited from building additional public facilities. The second sentence of the policy states: "This criterion is not intended to preclude acceptance of dedicated facilities and services by the county through . . . other means through which the recipients pay for the service or facility." Finally, the language of Criterion F under Policy 1.2 existed elsewhere in the Comprehensive Plan prior to the Plan Amendments; it is not new. The Plan Amendments simply changed the location of the language in the Plan. Land Use Policies 1.31 and 1.4 Paragraph 8.II.D. of the Amended Petition stated: Residential 30, Policy 1.31 and Residential 15, Policy 1.4 (pgs. 16, 18). In subsections 1.31.A.1.3 and 1.4.A. respectively, the limitation of this designation to east of Interstate 95 is arbitrary, capricious and is not supported by substantial evidence. It imposes excessive regulatory costs upon regulated property owners. It is confiscatory and fails to recognize the vested rights of property owners. There are areas west of Interstate 95 just as suitable and qualifying as areas east of Interstate 95. This policy fails to recognize existing or new infrastructure which services areas west of I-95 and is therefore inconsistent with other policies. New policy 1.4 is similar and related and also limits densities west of Interstate 95 under all circumstances. This change and any other related restrictions to all areas west of I-95 should be eliminated. FLUE Policies 1.3 (the proper number, not 1.31) and 1.4 deal with residential densities. Pertinent to Petitioners' complaint, Residential 30, allowing up to 30 units per acre, is located east of Interstate 95; generally, maximum residential density west of Interstate 95 is 15 units per acre in Residential 15, except where "adjacent to existing or designated residential densities of an equal or higher density allowance." Petitioners presented no evidence in opposition to these residential densities or designations or the data and analysis supporting them. To the contrary, Poplin testified that there was adequate data and analysis to support the changes. See Finding of Fact 47, supra. The other issues raised, such as excessive regulatory costs, relate to Section 120.52, Florida Statutes (2000), standards and are not at issue in the proceeding. Land Use Policy 2.8, Community Commercial Designation Paragraph 8.II.E. of the Amended Petition stated: Locational and Development Criteria for Community Commercial Uses, Policy 2.8 (pg 38). Subsection B regarding community commercial complexes should not be limited to 40 acres at an intersection for properties that have existing land use or zoning designations compatible to the new Community Commercial designation. The same is true for the limitations of subsections, C, D, and E. These new limitations are confiscatory, fail to recognize existing land use and zoning and vested rights of property owners, are arbitrary, capricious, are not supported by competent substantial evidence, enlarge existing regulations without justification. They impose additional regulatory costs on regulated property owners when the goal of Florida Statutes Chapter 163 could be met by less restrictive and costly regulatory alternatives. Other provisions of Policy 2.8, Table 2.2, Policy 2.9, Policy 2.10 that exceed the present regulation of properties having existing land use or zoning designations or actual use should not be allowed for the same reasons. Additionally, many of these amendments were added at a April 29, 2000 workshop without complying with applicable public notice requirements. Public review and input as to these elements was therefore lacking. The plain language of Criterion B under FLUE Policy 2.8 demonstrates that the restrictions have been relaxed, not increased. Previously, Criterion C under Policy 2.8 stated: "Sites for community commercial complexes should not exceed 20 acres." The letter designation of the criterion was changed, and the criterion was amended to read: "Community commercial complexes should not exceed 40 acres at an intersection." The Justification for the change states: "Site size has been enlarged to 40 acres maximum at an intersection. Previously, this criterion could be interpreted to permit a maximum of 80 acres at an intersection (20 acres at each corner). Forty acres has been chosen as this is the DRI threshold for commercial development." On its face, the purpose of amended Criterion B under Policy 2.8 was twofold: to enlarge the site size restriction from 20 to 40 acres; and to clarify that the restriction (now 40 acres) was meant to apply to all community commercial regardless whether they are located at intersections; locating a project on different sides of the street at an intersection was not supposed to double, triple, or even quadruple the maximum site size. Petitioners' position that amended Criterion B under Policy 2.8 shrinks maximum allowable the site size is based on Moehle's assumption that 80-acre projects were permitted at intersections under prior to amended Criterion B under Policy 2.8. But there was no competent, substantial evidence to support Moehle's assumption. Petitioners also seem to contend that the phrase "at an intersection" is imprecise, leading to uncertainty that undermines the required residential allocation analysis. But it is at least fairly debatable that no more precise definition is necessary. Contrary to Moehle's speculation, it is not reasonable to construe the phrase "at an intersection" to also mean "at an indeterminate distance away from an intersection." Petitioners also took the position that "folding" previous land use classifications into Community Commercial greatly expanded the practical effect of the acreage limitation in amended Criterion B under Policy 2.8. Petitioners' evidence did not explain their position in any detail or specificity. It is possible that they had reference to Criterion D under Policy 4.5 prior to the Plan Amendment, which allowed "regional commercial centers to incorporate up to 100 acres." If so, under the B.13 Plan Amendments, amended Policy 2.12 addresses regional commercial centers by requiring their location in a new Development of Regional Impact (DRI) future land use designation. The Justification for this change was: "With the proposed establishment of a Development of Regional Impact (DRI) land use category, regional uses will no longer be permitted in a commercial future land use designation. Review in accordance with Chapter 380, F.S. standards is intended to simplify readability and maintain consistency with state statutes." Reading amended Criterion B under Policy 2.8 together with amended Policy 2.12, commercial complexes larger than 40 acres are not prohibited under the Plan Amendment; they just have to be developed in a DRI land use category under Chapter 380 DRI standards. The reasonableness of these amendments is at least fairly debatable. Meanwhile, Poplin specifically testified that the data and analysis provided by the County were adequate to support the residential and nonresidential changes, including Community Commercial and Neighborhood Commercial changes. No contrary evidence was provided. Policies 2.9 and 2.10 allow minimal extensions of commercial boundaries. No evidence was presented addressing these items. The clear evidence was contrary to Petitioners' claim of notice violations. See Findings of Fact 12-14, supra. Transitional Commercial Activities Paragraph 8.II.F. of the Amended Petition states: Transitional Commercial Activities - Community Commercial - General Tourist Commercial (TU-1) - Highway Transient Tourist (TU-2). Existing properties with Mixed Use Land Use Designations and General Tourist Commercial (TU-1) and Highway Transient Tourist (TU-2) zoning classifications have not been protected with their existing regulation constraint in the transformation into the new Neighborhood Commercial and Community Commercial Regulations as has been asserted by the COUNTY in the revised objective and policies in the provisions covering these classifications as asserted by the COUNTY. Either proposed changes should conform or the changes should not be made. The same objections and changes are made for the new confiscatory provisions of the COUNTY for existing Industrial Land Use Designations and Zoning classifications under Industrial Land Uses (Objective 3, Policy 3, pg 55). The same objections and challenges are made for new confiscatory provisions of Agricultural Land Uses (pg 67) for existing Land Use Designations and densities of lands including reductions of densities to 1 unit per 5 acres by changes from a residential classification (including existing recorded subdivision plats). Many new items of the above were made at the April 29, 2000 workshop and proper public notices, review, and comment was not available. Petitioners failed to demonstrate any impact on actual development as a result of these future land use designation changes. No defect in notice was established by the evidence. Rather, the evidence indicated that all advertising requirements were met. See Findings of Fact 12-14, supra. Finally, Poplin testified that the majority of land uses remained the same based on existing uses, and that all changes were supported by data and analysis. Future Land Use Maps Update Paragraph 8.III.A. of the Amended Petition states: Comprehensive Plan Amendment 1999 B.14. The Future Land Use Maps Update Report - The Geographic Information Systems (GIS) maps are not consistent with the existing FLUM and RDG maps. There are corrections and amplifications needed before they are acceptable. The COUNTY did not either have available or make available to the public for review and comment the map(s) as transmitted to DCA at any properly noticed Public Hearing. It was asserted by the COUNTY that no Land Use Designations, Zoning, or Density Allocation changes, were being made to property owners. That is not true. Some specific examples are Sections 3 & 15, located within Township 22 South, Range 34 East, which were changed from Residential to Agriculture Use (density from 1 unit per acre to 1 unit per 5 acres) and Sections 1, 2, 11, 12, 13, 14 within Township 22 South, Range 34 East, from density of 1 unit per acre to 1 acre per 2.5 acres. The FLUM Report explains that the FLUM series was converted from graphic format to computerized geographic information system (GIS) format; as a result, the Residential Density Guidelines (RDG) map series could be combined with the FLUM series. Petitioners failed to establish any facts demonstrating that the new GIS FLUM series was not available or discussed at properly noticed public hearings. As to notice, see Findings of Fact 12-14, supra. There was no evidence of errors on the GIS maps. Petitioners complained that the GIS maps are unusable because they are too hard to read, especially because they were black and white. But actually the FLUM series is in color. There was no competent, substantial evidence that the color maps were too hard to read or unusable. Petitioners generally complained about residential density reductions but failed to present any competent, substantial evidence as to what supposedly was wrong with those reductions. Petitioners seem to believe that they should be able to obtain all information regarding their property from the Comprehensive Plan. There is no regulation cited by Petitioners requiring that the maps be of sufficient detail to enable someone to determine all possible uses of property based solely on a review of the maps. As a practical matter, additional site-specific information is nearly always necessary. In addition, GIS maps are computerized maps which are merely referenced by the Plan. The GIS system must ultimately be consulted regarding site-specific information. Poplin testified that the GIS updating of the FLUM and RDG map series was done primarily to streamline and consolidate the two previously separate maps. Contrary to Petitioners' assertions, Poplin testified that the conversion from two graphic maps to the GIS maps was a very positive change. Mixed Use District Conversion Paragraph 8.III.B. of the Amended Petition stated: Under the MIXED USE DISTRICT CONVERSION (pg 1) - Mixed Use District (MUD) land use designation and zoning classification of General Tourist Commercial (TU-1) or Highway Tourist Commercial (TU-2) existing classifications were not listed as being reclassified (to be designated as Community Commercial). Petitioners base this contention solely on the FLUM Update in the B.14 Plan Amendments. Petitioners' contention ignores FLUE Policy 2.7 in the B.13 Plan Amendments, one of the operative policies relating to the conversion from MUD. Policy 2.7 states which uses are allowed under the Community Commercial designation. Subparagraph "c" lists "Tourist Commercial uses" as being a use under Community Commercial. In their response to the motion for involuntary dismissal, Petitioners finally acknowledged Policy 2.7 but still maintain that it cannot be determined whether TU-1 and TU-2 zoning will be classified as Community Commercial or as Neighborhood Commercial. In making this argument, Petitioners ignore FLUE Policy 2.5, another operative policy in the B.13 section of the Plan Amendment, relating to the conversion from MUD. Policy 2.5 lists "[d]evelopment activities which may be considered within Neighborhood Commercial" and omits any "tourist commercial" development activities. Based on the evidence, it seems clear that both TU-1 and TU-2 zoning will be classified as Community Commercial, and not as Neighborhood Commercial. Petitioners' allegations that they were omitted from the MUD conversion are incorrect. More About the Glossary Paragraph 8.I.V. of the Amended Petition stated: Glossary, Definitions, Thresholds, Maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14. Revised Glossary. A new Glossary and definitions was never completed and made available to the public before any properly noticed Public Hearing to properly allow public review, input, comment, etc. Incomplete or inaccurate data on thresholds and maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14 were also not available. As previously found, the Glossary was not amended, and it would be inappropriate to advertise the Glossary for changes. There is no requirement that a glossary be included in a comprehensive plan. When a glossary is included, not every word in a comprehensive plan must be included. Forested Wetlands Location Map At final hearing, Petitioners asserted that the Forested Wetlands Location Map referred to and incorporated by reference in Policy 5.2.F.3. of the Conservation Element was not the best available data. This issue was not raised in the Amended Petition, and consideration of the merits of the assertion has been waived. In addition, as previously found, the language of Policy 5.2.F.3. was adopted prior to the Plan Amendments at issue in this case. See Finding of Fact 8, supra. On the merits of the argument, three forested wetlands maps were offered into evidence (as Petitioners' Exhibits 2, 3, and 4.) Only Petitioners' Exhibit 2 was admitted into evidence. Petitioners' Exhibit 2 reflects the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan. Without Petitioners' Exhibits 3 or 4 being in evidence, or any other evidence on the issue, Moehle's testimony was insufficient to prove beyond fair debate that the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan was not the best available data at the time of incorporation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order dismissing the Amended Petition and finding that Brevard County's Plan Amendments B.12, B.13, and B.14 are "in compliance." DONE AND ENTERED this 21st day of May, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 21st day of May, 2001. COPIES FURNISHED: Eden Bentley, Esquire Brevard County Attorney's Office 2725 St. Johns Street Viera, Florida 32940 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Charles F. Moehle Modern, Inc. Post Office Box 321417 Cocoa Beach, Florida 32932 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
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.
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
Findings Of Fact On or about December 10, 1987, the Department filed Proposed Rules 9J- 14.006 and 9J-15.006 with the Department of State, and published notice of its intent to adopt these proposed rules in the December 18, 1987 edition of the Florida Administrative Weekly. In pertinent part, these proposals disapprove certain Map Amendments requested by Petitioners, and approved by the Monroe County Board of County Commissioners in October, 1987. Petitioners timely filed petitions for draw-out proceedings pursuant to Section 120.54(17), Florida Statutes, and in March, 1988, the Department transmitted these petitions to the Division of Administrative Hearings for a hearing under the provisions of Section 120.57, Florida Statutes. The Department has determined that normal rule-making proceedings under Section 120.54 are not adequate to protect Petitioners' substantial interests, and has suspended rule-making regarding these Petitioners and the Map Amendments at issue in this case. Petitioners' standing is not at issue in this proceeding. The Florida Keys' Comprehensive Plan was adopted by the Monroe County Board of County Commissioners in February, 1986, and Volume III of the Plan, consisting of land development regulations, was approved by the Department and the Administration Commission in July, 1986. The Department uses, and relies upon, the provisions of this Plan in interpreting and applying the Principles For Guiding Development set forth at Section 380.0552(7), Florida Statutes, and in determining if proposed changes in land development regulations or Plan amendments are in compliance with said Principles. As part of its Comprehensive Plan, Monroe County adopted land use district maps in February, 1986, which depict the approved land use and zoning of individual parcels. Petitioners herein urge that the zoning of their parcels in February, 1986, as portrayed on the district maps, is in error or is not justified due to their particular circumstances. Therefore, they have sought Map Amendments which were approved by the Monroe County Board of County Commissioners in October, 1987, but which the Department proposes to disapprove as not in conformance with the Principles for Guiding Development. All proposed changes to land use district maps must take into account the uses and restrictions applied to the districts by the development regulations, as well as the goals and policies set forth in the Plan. The Keys' Comprehensive Plan states that amendments or changes may be considered by the Board of County Commissioners based on: changed projections, such as public service needs, from those on which the text or boundary was based; changed assumptions, such as regarding demographic trends; data errors, including errors in mapping, vegetative types and natural features; new issues; recognition of a need for additional detail or comprehensiveness; and data updates. However, no change may be approved if it results in an adverse community change. Typographical or drafting errors may be corrected by the Board at any time, without notice or hearing. In pertinent part, the land development regulations set forth in Volume III of the Keys' Comprehensive Plan provide: Existing Uses All uses existing on the effective date of these regulations which would be permitted as a conditional use under the terms of these regulations shall be deemed to have a conditional use permit and shall not be considered nonconforming. * * * Sec. 5-201. Uses permitted as of right are those uses which are compatible with other land uses in a land use district provided they are developed in conformity with these regulations. * * * Sec. 5-301. Conditional uses are those uses which are generally compatible with the other land uses permitted in a land use district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location. * * * Sec. 7-101. The purpose of this Chapter is to regulate and limit the continued existence of uses and structures established prior to the enactment of these regulations that do not conform to the provisions of these regulations. Many non-conformities may continue, but the provisions of this Chapter are designed to curtail substantial investment in non-conformities and to bring about their eventual elimination in order to preserve the integrity of these regulations. * * * Sec. 7-103. Nonconforming Uses. Authority to continue. Nonconforming uses of land or structures may continue in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions. Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located; or Occupancy of additional lands. Relocation. A structure in which a nonconforming use is located may not be moved unless the use thereafter shall conform to the limitations of the land use district into which it is moved. Change in use. A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Termination. Abandonment or discontinuance. Where a nonconforming use of land or structure is discontinued or abandoned for six (6) consecutive months or one (1) year in the case of stored lobster traps, then such use may not be re-established or resumed, and any subsequent use must conform to the provisions of these regulations. Damage or destruction. ... if a structure in which a nonconforming use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for uses which conform to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. Sec. 7-104. Nonconforming Structures. Authority to continue. A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this Section. Ordinary repair and maintenance. Normal maintenance and repair of registered nonconforming structures may be performed. Relocation. A nonconforming structure, other than an historic structure previously listed on the National Register of Historic Places or the Florida Inventory of Historic Places, or designated as historic by the Board of County Commissioners, shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. Termination. Abandonment. Where a nonconforming structure is abandoned for twelve (12) consecutive months, then such structure shall be removed or converted to a conforming structure. Damage or destruction. Any part of a nonconforming structure which is damaged or destroyed to the extent of less than fifty percent of the fair market value of said structure may be restored as of right if a building permit for reconstruction shall be issued within six (6) months of the date of the damage. ... any nonconforming structure which is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Director of Planning, by comparing the estimated cost of repairs or restoration with the fair market value. THE BROTHERS' PROPERTIES Map Amendment 48 was requested by R. Krajfasz, Bruce Barkley and Betty Brothers Rein (Case No. 88-1071 RP) concerning certain property they own on the west shore of Little Torch Key which is currently zoned NA (native area) , and which they are seeking to have rezoned SC (suburban commercial). This is an undeveloped parcel with 700 feet adjacent to, and to the south of, U.S. 1, which is surrounded by other, larger, undeveloped properties zoned NA and SR (suburban residential). The property is a salt marsh wetland which cannot be developed without substantial filling. Existing conditions include scrub mangroves, buttonwood and mangrove stands. The Keys' Comprehensive Plan recognizes the unique and irreplaceable character of the area's natural environment and seeks to protect the quality of nearshore waters, wetlands, and transitional areas through the designation, NA. It expresses the policy of prohibiting the destruction, disturbance or modification of any wetland, except where it is shown that the functional integrity of such wetland will not be significantly adversely affected by such disturbance. There has been no such showing regarding Map Amendment 48. It is also an expressed policy in the Plan to establish and promote a scenic corridor along U.S. 1, and prohibit development along U.S. 1 that disturbs the natural horizon. (See Sections 2-103, 104, 105 and 109, Vol. II, Keys' Comprehensive Plan.) Approval of this Map Amendment is inconsistent with these policies since SC zoning allows much more intensive use of the property, placing a greater demand on water resources and other infrastructure in the Keys. Bud and Patricia Brothers have requested the rezoning of certain undeveloped properties they own on Big Pine Key, known as Long Beach Estates, consisting of approximately 14 acres planned for a motel site, and 30 lots of greater than one acre each. These requests are for Map Changes 61 and 63 (Case Nos. 88-1074 and 88-1075 RP). These properties are currently zoned NA, and the rezoning sought is SR. Existing conditions consist of red mangrove, hammock species, sea grape, pond apple, bay cedar and similar species. Map Amendments 61 and 63 have not been shown to be consistent with the Future Land Use Element in that they would reasonably result in development which would have significant adverse affects on wetland areas, beaches, berms and the quality of nearshore waters. (See Sections 2-104, 105 and 107.) The requested rezonings of the Brothers' Properties (Map Amendments 48, 61 and 63) would be inconsistent with the Principles for Guiding Development. Specifically, they would adversely affect the shoreline and marine resources, including mangroves and wetlands, native tropical vegetation, dunes, water quality and the natural scenic resources of the Florida Keys. Petitioners failed to present competent substantial evidence in support off these requested Map Amendments. There is no demonstrated need for additional commercial development in the Little Torch Key area. BIG PINE KEY Petitioners Schirico Corporation and BHF Corporation have filed Map Amendments 66 and 67, respectively, (Case Nos. 88-1076 and 88-1077 RP) which seek to rezone their properties on Big Pine Key to SC from NA and SC (Schirico), and from SR (BHF). Although there was conflicting evidence concerning the exact extent of wetlands on the Schirico property, both the Petitioner and the Department presented evidence demonstrating that a significant portion of the property in Map Amendment 66 is wetland with wetland species, including black, white and red mangroves, and buttonwood. The property is in a transition zone between uplands and wetlands, and is crisscrossed with mosquito ditches. The requested Amendment is for the entire undeveloped parcel of almost ten acres, designating it all SC. The BHF parcel is approximately 5 acres in size, undeveloped, and is located off of U.S. 1 with SC property between it and U.S. 1. The property is also adjacent to SR and IS (improved subdivision) properties. The traffic flow along an arterial road from this parcel to U.S. 1 is very heavy due to existing commercial development and the county road prison camp located in close proximity. This parcel acts as a buffer between commercial uses, and would be an ideal site for affordable housing. There is an excess of undeveloped SC property on Big Pine Key, and, therefore, both of these proposals are inconsistent with sound economic development. Map Amendment 66, requested by Schirico, is inconsistent with the Principles of Guiding Development which seek to protect mangroves, wetlands, fish and wildlife, and their habitat, as well as native tropical vegetation, and to limit adverse impacts of development on water quality in the Keys. Map Amendment 67, requested by BHF, is inconsistent with the Principles for Guiding Development which emphasize the need to strengthen local government's land use management capabilities, provide affordable housing, and to protect the public welfare. THE MEDIAN STRIP The following Petitioners own property which comprise the median strip between U.S. 1 and County Road 5 on Plantation Key: Robert Vaughn (Map Amendment 170; Case No. 88- 1094 RP); Diane Droney (Map Amendment 172; Case No. 88-1095 RP); Jean Anderson (Map Amendment 173; Case No. 88-1096 RP); Monte Green (Map Amendment 174; Case No. 88-1097 RP); Harry Palen (Map Amendment 175; Case No. 88-1098 RP); Robert Vaughn (Map Amendment 176; Case No. 88-1099 RP); and Karl Beckmeyer and William Horton (Map Amendment 177; Case No. 88-1100 RP). In addition, Petitioners Outdoor Advertising of the Keys (Case No. 88-1067 RP), Dorothy M. Baer (Case No. 88-1092 RP) and C. W. Hart (Case No. 88-1093 RGA) support Map Amendments 170, 172-177. The median strip between U.S. 1 and County Road 5 is 120 feet deep and individual lots in the median are generally 60 feet wide. Petitioners each own from one to six lots in the median strip which are currently used and developed for substantially commercial purposes, such as cabinet making and sales, greeting card and novelty shop, retail plant nursery and office, a mini-mall with 17 stores, gas station and a professional office building. Current zoning of this property is SR, and Petitioners seek SC zoning with these Map Amendments. Although there is some undeveloped property in the median strip, there is no residential development in this strip. A 120 foot wide strip between highways is not appropriate for residential development. This median strip is primarily a commercial area, and Petitioners in this case have existing commercial uses, or own property adjacent to such commercial uses. Therefore, these applications should be dealt with together, as one package, rather than individually, according to Maria Abadal, the Department's planning manager who directs the critical area program in the Keys. Abadal testified that commercial areas should be zoned for commercial uses, and SC is a commercial zoning classification. Donald Craig also testified that some of these Map Amendments should be approved because SR is intended to encourage residential development, and residential uses are not appropriate in a median strip. He noted that other median strips in the Upper Keys have SC zoning. Finally, Bernard Zyscovich confirmed that the character of this strip is clearly commercial, and it is not appropriate for residential development. Of particular relevance to these Map Amendments are the following provisions of the Keys' land development regulations: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. Sec. 9-107. Purpose of the Sub Urban Residential District (SR) The purpose of this district is to establish areas of low to medium density residential uses characterized principally by single-family detached dwellings. This district is predominated by development; however, natural and developed open space create an environment defined by plants, spaces and over-water views. All of Petitioners' properties allow access from County Road 5, and, therefore, can be used without disrupting the flow of traffic along U.S. 1. Most of Petitioners' existing commercial buildings are less than 2500 square feet. Buildings of this size are allowed as a matter of right in SC zoning, but are a conditional use in SR zoning. Therefore, if destroyed by fire or natural disaster, Petitioners could not replace existing structures as a matter of right under their current SR zoning, but could do so under SC zoning sought by these Map Amendments. Maria Abadal expressed the Department's opposition to these Map Amendments, which she stated ware inconsistent with the policies expressed in the Keys' Comprehensive Plan to restrict upland clearing along U.S. 1, prohibit development that is disruptive of the natural horizon along U.S. 1, and promote a scenic corridor along U.S. 1. However, these parcels are already cleared, and have been used for commercial purposes for many years. There is, therefore, no basis for a finding of inconsistency based upon these policies. She also testified that these Amendments are inconsistent with the Principles for Guiding Development which seek to protect the historical heritage, character, and natural scenic resources of the Keys. There is no basis to find that an existing commercial area will be inconsistent with these Principles since there is no evidence in the record of any unique historical heritage, character or scenic resources associated with these commercial uses. By recognizing the existing character of these parcels, and allowing their continued commercial use as a matter of right in the event of destruction by fire or a natural disaster, approval of these Map Amendments would appear to reduce the need for new commercial uses elsewhere on Plantation Key, while assuring continued citizen access to long-standing commercial activities. THE SEWAGE PLANT NEIGHBOR Robert and Judy Wittey have filed Map Amendment 194 which seeks to rezone their 100 foot by 152.47 foot lot on Plantation Key from IS (Improved Subdivision) to SC (Case No. 88-1113 RP). Petitioners currently use this property to operate a commercial air conditioning business, with fiberglassing, welding and associated storage. There is a 5200 square foot commercial building on the property. Surrounding uses include a condominium, with its sewage treatment plan located immediately adjacent to the Wittey property, a high school athletic field, with a sewage treatment facility within 150 feet of this property, the high school's automotive repair garage and vocational training facilities, and a commercial contracting business. A generator for the condominium is also located next to this property. There are no single-family residential uses on the street where this property is located. The Wittey property is not part of a platted subdivision. Under its current IS zoning, the building located on this property is a nonconforming use, and may not be expanded or reconstructed if destroyed by fire or a natural disaster. SC is the lowest intensity land use designation that could be applied to this property which would result in the current structure being a conforming use. In pertinent part, the Keys' land development regulations provide that the purpose of the IS designation is to accommodate the legally vested residential development rights of the owners of subdivision lots that were lawfully established and improved prior to the adoption of the regulations. There was no showing of inconsistency with the Principles for Guiding Development if Map Amendment 194 were to be approved. Specifically, it was not shown that approval of this Map Amendment would have an adverse impact on public facilities or the natural resources. The Petitioners demonstrated that SC is, in fact, the appropriate zoning for this property, and that IS is totally inappropriate since this property is not part of a platted subdivision. There is no basis to zone this property IS based upon the existing uses surrounding this property. THE PILOT/FISH HOUSES Map Amendments 242, 243 and 245 involve the applications filed by Petitioners Coral Lake Realty, Inc. (Case No. 88-1114 RP), Jack and Dorothy Hill (Case No. 88-1115 RP) and Shirley Gunn (Case No. 88-1117 RP) for the rezoning of properties they own surrounding a basin, known as Lake Largo, on North Key Largo. The Coral Lake Realty property is the site of an existing restaurant, known as The Pilot House, and marina. The Gunn property is the former site of a commercial fish house, which was abandoned in 1985 due to a decline of commercial fish harvests and a loss of wholesalers. Gunn's property is also the location of a burned out building, a dive shop, and a few commercially leased docks. The Hill property is used to operate a commercial fish house, fish processing, and the patching and building of traps. These properties are one- half mile off of U.S. 1. Petitioners' properties are currently zoned CFSD-5 (Commercial Fishing-Key Largo), and they are seeking to have them rezoned MU (mixed use). In pertinent part, the Keys' land use regulations provide: Sec. 9-118. Purpose of the Commercial Fishing Special Districts (CFS). The purpose of these districts is to establish areas where various aspects of commercial fishing have been -traditionally carried out while prohibiting the establishment of additional commercial fishing uses which are inconsistent with the natural environment, immediate vicinity or community character of the area. Sec. 9-119. Purpose of the Mixed Use District (MU) The purpose of this district is to establish or conserve areas of mixed uses including commercial fishing, resorts, residential, institutional and commercial uses and preserve these as areas representative of the character, economy and cultural history of the Florida Keys. The only uses permitted as of right in a CFSD-5 district are commercial-fishing, detached dwellings and accessory uses. The MU designation allows, but does not encourage or promote, commercial fishing. It is designed for intense mixed uses, some of which would be inappropriate for this basin. There are areas in the Keys where fish houses are located in MU zoning. Petitioners have not demonstrated there is any shortage of MU areas in the Keys. According to Lane Kendig, an expert in comprehensive planning, promoting commercial fishing is one of the main aims of the Keys' Comprehensive Plan, and the CFSD zoning category is a primary method of implementing this aim. Because commercial fishing activities can only be located in areas such as this which have deep water access, CFSD zoning of properties with these site specific characteristics should be encouraged, and approval of these Map Amendments would be inconsistent with this objective of the Plan. The community character of the Lake Largo basin is heavily dominated by commercial fishing and associated activities, although some mixed uses are also present. (See Section 2-109.) It is surrounded by SR and IS districts, and existing residential uses. The Pilot House restaurant (Map Amendment 242; Case No. 88-1114 RP) is a nonconforming use in the CFSD-5 zone which could not be expanded, or replaced as of right if destroyed by fire or natural disaster. Bernard J. Costello, principal stockholder in The Pilot House, testified that MU zoning is being sought to allow the placement of more docks in the basin, and to make additional improvements to the restaurant which could not be allowed in CFSD-5. It is his intention to continue to use this property as a restaurant and marina if the Map Amendment is approved. The Hill fish house (Map Amendment 243; Case No. 88-1115 RP) processes, freezes and cooks fish which is primarily shipped in from other countries and states. Only 10 percent of the product handled through this fish house is caught locally in the Keys, while in 1972, all of the product was local. Due to the decline of local commercial fishing, about five years ago imported fish became the majority of product handled in this fish house. Some fishermen now sell directly to trucks, and bypass the fish houses. Recreational users now comprise a significant portion of boat slip renters on the basin. While there has been a decline in local commercial fishing, such uses are still present and the uses permitted as of right in CFSD-5 are more appropriate for this basin than those uses for which the MU designation was developed. These Map Amendments would be inconsistent with the community character of this basin, and would not comply with those Principles for Guiding Development which seek to strengthen the capabilities of local government for managing land use and development, limit adverse impacts of development on water quality, and protect the unique historic character and heritage of the Keys. "NOSEEUMS" Jerome and Mary Behrmann have filed Map Amendment 263 (Case No. 88- 1118 RP) seeking to have their property located on Key Largo rezoned from SR to SC. This property has been operated as a tropical plant nursery for about five years. Donald W. Ross has filed Map Amendment 268 (Case No. 88-1119 RP) seeking to also have property located on Key Largo rezoned from SR to SC. This property is used to operate an aluminum siding business. There is no access to these properties, except from U.S. 1. Petitioners' present uses are nonconforming in a district zoned SR, and, therefore, may not be modified, repaired or replaced if destroyed by fire or natural disaster. Both of these petitions deal with properties located on the same side of U.S. 1 in an area of intense natural vegetation and hardwood hammocks. With the exception of Petitioners' properties, the area immediately adjacent on the same side of U.S. 1 is undeveloped. However, on the opposite side of U.S. 1 is intense commercial development, including strip stores, used car sales, a flea market and convenience store. A power station is located to the north of these properties on the same side of U.S. 1. Due to the heavy infestation of microscopic insects, known locally as "Noseeums," resulting from natural vegetation on these and adjoining properties, residential development would be very difficult. These mosquito-like gnats become active in the early evening and at night, and are so small that they cannot be prevented from entering residences by screening. Local residents will not go outdoors after dark in areas infested with "Noseeums." Petitioners' commercial activities do not require them to be on these properties at night. In the area adjoining Petitioners' properties, U.S. 1 is a four lane divided highway which forms a natural land use, and zoning barrier from the commercial activities on the opposite side of the highway. Petitioners' parcels represent relatively small portions of an area zoned SR which extends approximately one mile along U.S. 1, and is from 650 to 700 feet deep. The only issue in this case is whether Petitioners' properties should be rezoned SC, which would leave the rest of this area zoned SR. Such a rezoning of these parcels to SC would be a classic case of spot zoning since it would confer special benefits to these owners without regard to adjoining owners, and would destroy and disrupt the overall integrity of this SR district. There are sufficient undeveloped SC properties in this immediate area, and there is, therefore, no demonstrated need for additional SC zoning. Petitioners' expert, Bernard Zyscovich, acknowledged that those properties presently zoned SR which adjoin Petitioners' properties could be used for residential development. This is an area in Key Largo where the County is attempting to direct residential development. Although it is not on the water and does not have a water view, there are other residential areas in the Keys which lack these amenities. The rezoning to SC sought by Map Amendments 263 and 268 would be inconsistent with the following objectives and policies of the Keys' Comprehensive Plan (Sections 2-106 and 109): To protect the functional integrity of upland hammocks that contribute to the tropical and native character of the Florida Keys, particularly along U.S. 1 and County Road 905. * * * To restrict the clearing of upland vegetation that contributes to the tropical and native character of the Florida Keys along the U.S. 1 and County Road 905 corridors. * * * To limit the development of new land uses to intensities and characters that are consistent with existing community character where a community character change would have undesirable social, cultural, economic or environmental impacts. * * * To establish and promote a scenic corridor along U.S. 1 and County Road 905. These Map Amendments would also be inconsistent with those Principles for Guiding Development that mandate protection of upland resources and native tropical vegetation such as hardwood hammocks, limiting adverse impacts of development on water quality, and enhancement of natural scenic resources. CAPTION'S COVE Robert Maksymec is the principal stockholder of development partnerships known as Tormac and Planmac which are Petitioners in Cases 88-1121 and 88-1122 RP, respectively, and which are seeking Map Amendments 135 and 136 for certain undeveloped, scarified properties owned by Petitioners surrounding a basin known as Captain's Cove on Lower Matecumbe Key. These properties are zoned CFA (commercial fishing area) and Map Amendments 135 and 136 seek SC zoning. Although this property is located between Captain's Cove and U.S. 1, it is accessible by arterial roads without using U.S. 1. Petitioners propose to develop these properties into a hotel with 52 boat slips, and marine shops. Deed restrictions on the property bar commercial fishing. The Department of Environmental Regulation has issued Permit Number 441008425 to construct a 52 boat slip and docking facility conditioned on non- commercial uses, and prohibiting fuel or storage facilities, as well as boat cleaning, hull maintenance and fish cleaning at the permitted facility. Under CFA zoning, Petitioners' proposed use is nonconforming. CFA allows more commercial and intense uses than CFSD-5. In pertinent part, the Keys' land use regulations provide: Sec. 9-106. Purpose of the Sub Urban Commercial District (SC) The purpose of this district is to establish areas for commercial uses designed and intended primarily to serve the needs of the immediate planning area in which they are located. This district should be established at locations convenient and accessible to residential areas without use of U.S. 1. * * * Sec. 9-116. Purpose of the Commercial Fishing Area District (CFA) The purpose of this district is to establish areas suitable for uses which are essential to the commercial fishing industry including sales and service of fishing equipment and supplies, seafood processing, fishing equipment manufacture and treatment, boat storage and residential uses. These properties are surrounded by commercial and marine commercial uses, and across the basin is a residential area. There is no demonstrated need for undeveloped SC properties in this area. Since these properties are located on a water basin with residential areas in close proximity, SC zoning is inappropriate and inconsistent with the Principles For Guiding Development, which seek to limit the adverse impacts of development on water quality, and ensure sound economic development. It also appears, however, that the current CFA zoning may also be inappropriate for this property due to existing deed restrictions, DER permit conditions, and the decline in commercial fishing activities in the Keys in recent years. Nevertheless, the only issue in dispute in this case is whether the SC designation sought in Map Amendments 135 and 136 is consistent with the Principles For Guiding Development, and it is not. THE OLD POST OFFICE Petitioner Catherine Nash has filed Map Amendment 215 (Case No. 88- 1128 RP) by which she seeks to have property she owns in Tavernier, known as The Old Post Office, rezoned from its current SR to SC. The subject property is currently used to operate an art gallery and related business, but was formerly used from 1926 to about 1960 as a grocery store and post office. The only access to this property is from U.S. 1. The property is surrounded by SR zoning. Across U.S. 1 there are SC zoned properties. There was conflicting testimony whether Petitioner's existing building could be rebuilt in SR zoning if destroyed by fire or natural disaster. It has, therefore, not been established that SC zoning is necessary to protect the present existing use of this property. Due to the lack of access to the property other than from U.S. 1, it fails to meet an essential requirement for SC zoning. Approval of Map Amendment 215 would also represent a clear case of spot zoning since this would be an isolated SC parcel amid an SR district. Petitioner's Map Amendment has not been shown to be consistent with the Principles For Guiding Development, and in particular those which seek to strengthen local government's capabilities for managing land use and development, and which seek to ensure sound economic development which is compatible with the unique historic character of the Keys. TROPIC SOUTH Petitioner Tropic South was represented at hearing, but no evidence in support of Map Amendment 91 (Case No. 88-1083 RP) was offered. ECONOMIC IMPACT STATEMENT There is no evidence that the Department has developed an economic impact statement (EIS) for those portions of the proposed rules disapproving the above referenced Map Amendments previously approved by Monroe County. The Department did prepare an EIS for those Map Amendments transmitted by Monroe County which the Department approved, but those Amendments, and that EIS, are not the subject of this proceeding.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department approve Map Amendments 170 and 172 through 177 (The Median Strip), as well as 194 (Sewage Plant Neighbor), and otherwise disapprove all other Map Amendments which are the subject of this proceeding, as proposed in Rules 9J-14.006 and 9J-15.006, Florida Administrative Code. Further, it is RECOMMENDED that the Department prepare an Economic Impact Statement which addresses the impact of its proposed action on Petitioners. DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, John William Renner (Respondent) was licensed as a land surveyor in the State of Florida, having been issued license number LS 0004739. Respondent has been a licensed land surveyor since July 13, 1989. The minimum technical standards for surveys are set forth in Rule 21HH- 6, Florida Administrative Code, (Rule) of the Board of Professional Surveyors and Mappers (Petitioner). The Rule sets forth minimum standards which are expected and required of all surveyors. No deviation from the required minimum standards are permitted. A surveyor must first satisfy the minimum technical standards before applying community standards of local custom to a survey. On or about March 30, 1992, Respondent performed a survey of a lot described as: Lot 13, Block 1, Plat I of Sky Lake, according to the plat recorded in Plat Book 39, Pages 133-134, as recorded in the public records of Palm Beach County, Florida. Different surveyors, examining Respondent's survey, would have differing opinions regarding his survey. However, no deviation from the required minimum technical standards is permitted. As part of Petitioner's investigation of Respondent's alleged violations of the Rule, Petitioner requested a copy of the original survey. Respondent had misplaced the original and never complied with Petitioner's request. Petitioner obtained the original survey from the title company. The survey was certified by Respondent with his signature and seal. It is undisputed that Respondent's product is a boundary survey. However, he failed to state on the survey the type of survey that the certified drawing represents. The subdivision in which the Lot is located is platted. The boundary survey plats the Lot. Since the filing of the administrative complaint against him, Respondent has become aware that his surveys must identify the type of survey that his certified drawings represent. Respondent made field notes during the preparation of the survey. Field notes are records of observations and measurements made in the field and support the survey. Also, as part of its investigation, Petitioner requested a copy of Respondent's field notes which contained the measurements that he had made in the field. Respondent could not locate his field notes and was, therefore, unable to produce them; but agreed to produce the field notes when he located them. Respondent failed to maintain his field notes. Prior to hearing, through discovery, Respondent informed Petitioner that he had located his field notes but again failed to produce them to Petitioner. Finally, at hearing, approximately two years after Petitioner's investigative request, Respondent produced his field notes. Respondent's boundary survey provides, among other things, that the "Bearings Are Based On Plat." The plat is not a line; it is a document. Respondent failed to provide the well-established line upon which the bearings are based. Groups of lots within a platted subdivision are controlled by permanent control points (PCP) and permanent reference markers (PRM). The PRMs define the boundaries of a subdivision. The distance between the PCPs is referred to as a record distance which is shown on the subdivision plat of record. After a surveyor locates the PCPs and the PRMs, the surveyor measures the distance from PCP to PCP and from PRM to PRM. The measured distance in the field is compared with the recorded distance. Rarely are the recorded distance and the measured distance the same. In a discrepancy, with the acceptable margin of error, each lot between the PCPs receives its proportionate share of the measurement. Respondent's field notes indicate that he measured from PCP to PCP. However, there is no indication on the survey that he made the measurement. Respondent failed to show on the survey drawing the discrepancy between the recorded distance and the measured distance in the field. The discrepancy is four-hundreths of a foot, which is not significant in and of itself, but is important because the discrepancy adds more that 600 feet to the PCP. The plat of the subdivision indicates a 180 foot wide canal right of way along the west property line of the Lot. It is undisputed that Respondent failed to show the canal right of way on his survey drawing. Respondent's survey drawing indicates a fence along the north property line of the Lot. Nevertheless, it is undisputed that Respondent's dimensions are inadequate and insufficient to show the distance from the fence to the property line, i.e., the proximity of the fence to the property line. Also, Respondent's survey drawing shows three squares drawn along the south side of the residence on the Lot, showing concrete improvements. Even though Respondent's field notes indicate measurements for the squares, his survey drawing fails to identify the squares, as to what they represent, and fails to show their dimensions. As a result, no determination can be made as to whether the concrete improvements may affect property value. A surveyor is given some latitude as to whether a concrete improvement is fixed and pertinent to the survey, and, therefore, deference is given to the surveyor's judgment. Respondent's survey drawing indicates that the concrete improvements are not fixed and not pertinent to the survey. Appearing on Respondent's survey drawing are the three abbreviations BM, C. B. S., and CL, with the C and L intersecting. These abbreviations are not generally used by the public. BM and C. B. S. are not shown in the legend. Even though the abbreviation CL is in the legend, the C and L are not intersecting. A finding is made that the abbreviation CL, with the C and L intersecting, is not included in the survey's legend. Respondent's survey indicates the basis for elevations, referencing that "Elevations Based on County BM CL Old Boynton", with the C and L intersecting. BM is the abbreviation for benchmark. The survey did not describe the benchmark, identify the county or provide the published elevation. Referenced elevations must be based on an established benchmark. If a benchmark is referenced, its description should be sufficient to locate the benchmark and use it. Respondent's benchmark description fails to provide a basis for locating the benchmark or determining its elevation. In June 1992, after attending a minimum technical standards seminar, Respondent responded to allegations made by a Mr. Dennis Painter regarding the survey. 1/ In his response, Respondent agreed with some of the allegations, and, as a result, Respondent indicated that he made the appropriate revisions to the survey. No evidence was presented at hearing regarding the nature of Mr. Painter's allegations, so there was no opportunity to examine Respondent's responses as they relate to the allegations made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Surveyors and Mappers enter a final order: Reprimanding Respondent; Imposing a $500 administrative fine; and Placing Respondent on probation for one (1) year under terms and conditions deemed appropriate by the Board. DONE AND ENTERED this 7th day of February, 1997, in Tallahassee, Florida. ERROL H. POWELL 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 7th day of February, 1997.
The Issue The matters in dispute in this cause concern the attempts by Petitioner to achieve licensure in the State of Florida as a registered land surveyor, pursuant to Chapter 472, Florida Statutes, and through Rule 21HH-3.01, Florida Administrative Code. In particular, Respondent asserts that Petitioner has not met the necessary prerequisites in Section 472.013, Florida Statutes, to allow him to stand the licensing examination. Moreover, Respondent has not allowed Petitioner to gain licensure by endorsement as defined in Subsection 472.015 (3) , Florida Statutes. Petitioner contends that he is entitled to licensure by endorsement or in the alternative, to stand the examination, leading to his licensure by testing. WITNESSES AND EXHIBITS Petitioner testified in this cause and offered two exhibits which were received. Respondent presented a composite exhibit which is constituted of file materials related to the Petitioner's application for licensure and responses to the application request.
Findings Of Fact Petitioner is a retiree from the United States Army, having served 22 years, commencing in 1955. During his service, he obtained military occupational specialties related to the field of surveying in the artillery branch. This experience included occupational training given to Petitioner and examinations of his skills following that training; practical surveying work, and instructional work by Petitioner performed for the benefit of other trainees. This work experience included surveying activities in Florida while in the military. Those surveying duties were military assignments. Material related to Petitioner's training and job performance is generally set forth in Respondent's Exhibit No. 1. Petitioner's Exhibits Nos. 1 and 2 are further statements related to the Petitioner's military occupational specialties. Petitioner has made application to be licensed as a land surveyor in Florida in keeping with the provisions of Chapter 472, Florida Statutes. Through this process, it is Petitioner's desire to be accepted for licensure through the endorsement process or be given the opportunity to sit for the examination. Respondent is unwilling to accent Petitioner as a candidate for licensure by endorsement. In this connection, he did not establish his successful completion of an examination identified in Subsection 472.015(3)(a), Florida Statutes, or that he holds a valid license from another jurisdiction within the meaning of Subsection 472.015(3)(b) , Florida Statutes. After reviewing Petitioner's application, Respondent through correspondence dated September 10, 1982, denied Petitioner's reguest for licensure by examination premised upon the fact that Petitioner's land surveying experience was not verified by a registered land surveyor who had employed or supervised Petitioner's work. In addition, the letter of denial of licensure indicated that the applicant's file was not complete in that it failed to account for work experience following Petitioner's retirement from the armed services in 1976. (In the course of the hearing, it was established that Petitioner has not practiced land surveying following his retirement.) Notwithstanding his considerable experience, Petitioner has failed to submit by application and/or in the course of the final hearing, documentation which would verify that Petitioner has gained his experience in the field of surveying as a sub- ordinate to a land surveyor as defined in Subsection 472.005(3), Florida Statutes. His documentation did not identify that Petitioner's supervisors or commanders were land surveyors as previously defined and Petitioner did not establish in the hearing that his superiors were land surveyors, as defined. As a consequence, Petitioner failed to provide references from land surveyors setting forth the quality and character of his duties and responsibilities while under the land surveyor's supervision. After receiving the letter of denial of the application, Petitioner made a timely request for a formal Subsection 120.57(1), Florida Statutes, hearing. This matter was transmitted to the Division of Administrative Hearings and received by that Division on October 18, 1982. An initial hearing date was established for December 8, 1982, and was continued to allow for the negotiations between the parties. The case was subsequently reset for final hearing on March 16, 1983, the date the final hearing was conducted.
