15-000087PL Department Of Agriculture And Consumer Services, Board Of Professional Surveyors And Mappers vs. Wesley Brian Haas
 Status: Closed
Recommended Order on Tuesday, April 14, 2015.


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Summary: Respondents failed to abide by various minimal technical standards applicable to the practice of surveying and mapping, but were not guilty of negligence in the practice of surveying and mapping.

1Florida Statutes. On January 8, 2015, the cases were referred to the Division of Administrative

16Hearings for assignment of an administrative law judge (ALJ). The cases were consolidated on

30January 16,2015, and set for final hearing on February 20, 2015. 1

43On January 8, 2015, the Respondents jointly filed a "Motion to Dismiss with Prejudice."

57The motion sought the dismissal of the Administrative Complaint based on various grounds such

71as the Respondents were not afforded more rights during the probable cause proceeding,

84Respondent Haas wished to assert a right to remain silent, and the so-called "double jeopardy"

99clause of the Fifth Amendment to the United States Constitution protected the Respondents. On

113Januay 26, 2015, the ALJ entered an "Order Denying Motion to Dismiss."

125On February 20, 2015, the final hearing was held by video teleconference at locations in

140West Palm Beach and Tallahassee, Florida before ALJ F. Scott Boyd. Mr. Patrick Creehan, Esq.

155appeared on behalf of the Petitioner. Mr. Torben S. Madson, Esq. appeared on behalf of the

171Respondents.

172At the hearing, the Petitioner presented the testimony of Mr. Alvin T. Gloer, who was

187accepted, without objection, as an expert in surveying and mapping. Petitioner's Exhibits P1

200through P3 were admitted into evidence. Respondent Haas asserted his right to remain silent and

215was not present at the hearing. Respondent offered exhibit R-1, which was admitted with the

230caveat that it contained hearsay.

235The transcript of the hearing was filed on March 12, 2015. Both parties timely filed

250proposed recommended orders. The ALJ's recommended order was entered on April 14, 2015.

263On April 20 and 27, 2015, the Respondents filed exceptions to the Recommended Order. On

278April23, 2015, the Petitioner filed its exceptions to the Recommended Order. By agreement, the

2921 Where appropriate and due to joint filings by the Respondent Haas and Exacta Land Surveyors, Inc., this Final

311Order may refer to the "Respondents."

317Petitioner filed its responses to the Respondent's exceptions on May 4, 2015. The Respondents

331filed their response to the Petitioner's exceptions on April27, 2015.

341STATEMENT OF THE ISSUE

345Whether the Respondent Haas failed to comply with various Minimal Technical

356Standards, in violation of Rules 5J-17.051 and 5J-17.052, Florida Administrative Code (F.A.C.),

368or was guilty of negligence in the practice of surveying and mapping, all in violation of section

385472.0351, Florida Statutes (2012), and if so, what is the appropriate penalty.

397STANDARD OF REVIEW OF RECOMMENDED ORDER

403The Administrative Procedure Act grants the Board limited authority to reject or modify

416findings of fact in a Recommended Order. See Section 120.57(1)(1), Florida Statutes ("The

430agency may not reject or modify the findings of fact unless the agency first determines from a

447review of the entire record, and states with particularity in the order, that the findings of fact

464were not based upon competent substantial evidence or that the proceedings on which the

478findings were based did not comply with essential requirements of law.").

490In determining whether challenged findings of facts are supported by the record evidence

503in accord with this standard, the Board may not reweigh the evidence or judge the credibility of

520witnesses. See Rogers v. Dep 't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005).

537The Administrative Procedure Act also addresses the manner that the Board must address

550conclusions oflaw in a Recommended Order. Section 120.57(1)(1), Florida Statutes provides:

561The agency in its final order may reject or modify the conclusions of law over

576which it has substantive jurisdiction and interpretation of administrative rules over

587which it has substantive jurisdiction. When rejecting or modifying such

597conclusion of law or interpretation of administrative rule, the agency must state

609with particularity its reasons for rejecting or modifying such conclusion of law or

622interpretation of administrative rule and must make a. finding that its substituted

634conclusion of law or interpretation of administrative rule is as or more reasonable

647than that which was rejected or modified.

654RULING ON EXCEPTIONS

657Respondent's "Exceptions to Recommended Order" filed on April20, 2015

666The Respondent's first four exceptions listed under the heading "Exceptions" do not

678identify any disputed portion of the Recommended Order, do not identify a legal basis, and do

694not include any appropriate citations to the record, as required by Rule 28-106.217, F.A.C. The

709four exceptions appear to be general opinions and/or citations of law. In accordance with section

724120.57(1)(k), Florida Statutes, the Board makes no ruling on the first four exceptions listed under

739the heading "Exceptions."

742The Respondent's next exception, labeled "Count I and II Exceptions to Recommended

754Order," is generally directed to the findings of fact and conclusions of law relating to Counts I

771and II of the Recommended Order.

777As to Count II, the Respondent argues the ALJ "incorrectly concluded that: "since the

791field notes that are dated show a date of 9/24/12, while the survey drawing shows a field work

809date of 9/25/12. The parties stipulated as to the different dates shown or: these documents. The

825dated filed notes show that filed work was performed on September 24, 2012. The clear and

841convincing evidence is that the date of data acquisition was September 24, 2012, while the date

857on the survey drawing is September 25, 2012." The Respondent does not identify the portion of

873the Recommended Order by page number or paragraph; however, the above quote appears to be

888paragraphs 9 and 1 0 in the Recommended Order.

897This general exception fails to comply with Rule 28-106.217, F.A.C. in thai the

910Respondent did not identify the portion of the Recommended Order by page number or

924paragraph.

925Notwithstanding this failure to comply with section Rule 28-106.217, F.A.C, a review of

938the record establishes competent substantial evidence supports paragraphs 9 and 1 0 in the

952Recommended Order. The parties stipulated to these facts and Mr. Gloer's testimony supports

965these findings (Tr. p. 12 and pp. 47-48).

973As to Count I, there is competent substantial evidence to support the fmdings of fact and

989conclusions of law related to Count I. Mr. Gloer testified that page 12, a computation note, was

1006not dated (Tr. p. 44).

1011The Respondent also argues "That Petitioner failed to prove by clear and convincing

1024evidence that no field work was performed on this survey on September 25, 2012, and therefore

1040Count I and II must be dismissed." The Petitioner's burden is to show by clear and convincing

1057evidence that the date of data acquisition was not the date on the survey drawing. The ALJ found

1075that the Petitioner proved by clear and convincing evidence that the date of data acquisition was

1091September 24, 2012 and the date on the survey drawing was September 25, 2012, and therefore

1107the Respondent violated Rule 5J-17.051(2)(b)3 and 5J-17.051(3)(b)3, F.A.C. The ALJ's findings

1118are based upon competent substantial evidence and should not be disturbed (Tr. p. 12, p. 44, and

1135pp. 4 7 -48). The Board may not reweigh the evidence or resolve conflicts therein. See Rogers v.

1153Dep 't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005).

1166The Respondent's "Count I and II Exceptions to Recommended Order" are denied.

1178The Respondent's next exception, labeled "Count V Exceptions to Recommended Order"

1189is generally directed at the findings of fact and conclusions of law relating to Count V of the

1207Recommended Order. The Respondent does not identify the portion of the Recommended Order

1220by page number or paragraph. At the Board meeting held on May 6, 2015, the Respondent

1236clarified the exception to be the Respondent could not have violated Rule 5J-17.051(3)(b)15.b.ii,

1249F.A.C. as a matter of law because the term "redundant measurement" is not defined. The

1264Respondent therefore argues that each licensed person or entity should be entitled to make up its

1280own interpretation of the rule. However, Mr. Gloer testified that redundancy and redundant

1293measurements are common principles and terms used in the industry (Tr. pp. 112-116). The

1307ALJ's interpretation of Rule 5J-17.051(3)(b)15.b.ii, F.A.C. is a reasonable interpretation of the

1319rule and is more reasonable than that advanced by the Respondent. The ALJ' s findings of fact in

1337paragraph 15 in the Recommended Oder are based on competent substantial evidence and should

1351not be disturbed.

1354The Respondent's "Count V Exceptions to Recommended Order" is denied.

1364The Respondent's next exception, labeled "Count VII Exceptions to Recommended

1374Order" is generally directed at the findings of fact and conclusions of law relating to Count VII

1391of the Recommended Order. Essentially, the Respondent argues the survey is not part of a metes

1407and bounds survey, therefore he could not have been found in violation of Rule 5J-

142217.052(2)(a)8., F.A.C. The Respondent does not identify the portion of the Recommended Order;

1435however, the exception appears to be directed at paragraph 19 in the Recommended Order.

1449This general exception fails to comply with section Rule 28-106.217, F.A.C. in that the

1463Respondent did not identify the portion of the Recommended Order by page number or

1477paragraph.

1478Notwithstanding this failure to comply with section Rule 28-106.217, F.A.C, a review of

1491the record establishes competent substantial evidence supports paragraph 19 in the

1502Recommended Order. Mr. Gloer testified the parcel being surveyed was described by metes and

1516bounds (Tr. p. 61).

1520The Respondent's "Count VII Exceptions to Recommended Order" is denied.

1530The Respondent withdrew his "Count VIII Exceptions to Recommended Order" at the

1542Board meeting held May 6, 2015. Thus, no explicit ruling is required.

1554The Respondent's next exception, labeled "Count X Exceptions to Recommended Order"

1565is a general exception to the findings of fact and conclusions of law relating to Count X of the

1584Recommended Order. The Respondent does not identify the portion of the Recommended Order

1597by page number or paragraph. At the Board meeting held on May 6, 2015, the Respondent

1613clarified that his argument was identical to his argument regarding Count V in that he could not

1630have violated Rule 5J-17.052(2)(b)7, F.A.C. as a matter of law because the term "redundancy of

1645measurements" is not defined. As explained above, Mr. Gloer testified that redundancy is a

1659common term and principle used in the industry, and the ALJ's interpretation of Rule 5J-

167417.052(2)(b)7, F.A.C. is a reasonable interpretation of the rule and is more reasonable than that

1689advanced by the Respondent. The ALJ' s findings of fact in paragraph 25 in the Recommended

1705Order are based on competent substantial evidence and should not be disturbed.

1717The Respondent withdrew his "Count XI Exceptions to Recommended Order" at the

1729Board meeting held May 6, 2015. Thus, no explicit ruling is required.

"1741Respondent's Additional Exceptions and Response to Petitioner's Proposed Exceptions

1750to Recommended Order"

1753At the Board meeting held May 6, 2015, the Respondent explained that his additional

1767exceptions, filed on April 27, 2015 were merely filed in support of, and to summarize, his initial

1784exceptions filed on April20, 2015. As such, the additional exceptions addressing Counts I, II, V,

1799VIII, and V are rejected for the reasons stated above.

1809Finally, at the Board meeting held May 6, 2015, the Respondent raised, for the first time,

1825an objection to the ALJ's recommendation of a total administrative fine, as opposed to a separate

1841fine for each proven violation. The Respondent's written exceptions do not raise this issue.

1855The total administrative fine of $1,500.00 for 5 proven violations is clearly and

1869undisputedly within the range of fines established in the Board's disciplinary guidelines found in

1883Rule 51-17.011(2) and (4), F.A.C.

"1888Petitioner's Proposed Exceptions"

1891The Petitioner's first exception is directed at the ALJ's finding in paragraph 1 in the

1906Recommended Order that the Department of Agriculture and Consumer Services (Department) is

1918the state entity charged with regulating the practice of land surveying and mapping. While the

1933Department has jurisdiction over disciplinary proceedings under section 742.033, Florida

1943Statutes, the Board has the sole authority to impose disciplinary action against licensees. See

1957section 472.0355, Florida Statutes. The Board also has sole authority for fmal agency action. See

1972section 472.033(6), Florida Statutes. Lastly, the Board has sole authority to establish Standards

1985of Practice (formerly Minimum Technical Standards). See section 472.027, Florida Statutes.

1996The Petitioner correctly points out that the Department and the Board are charged with

2010regulating the practice of land surveying and mapping. Paragraph 1 in the Recommended Order

2024is not supported by competent, substantial evidence and should be modified to include a

2038reference to the Board.

2042The Petitioner's first exception is accepted and paragraph 1 in the Recommended Order

2055is hereby modified as follows: "The Department and the Board of Professional Surveyors and

2069Mappers are charged with regulating the practice of land surveying and mapping, pursuant to

2083chapter 4 72, Florida Statutes."

2088The Petitioner's second exception is directed at the ALJ's finding of fact in paragraph 5

2103in the Recommended Order. At the beginning of the hearing, the parties stipulated to several

2118fmdings of fact proposed in the Respondent's Unilateral Preheating Aamission to the Facts and

2132Law. However, this finding of fact was not part of the stipulation. See Tr. p. 11 and

2149Respondent's Unilateral Preheating Admission to the Facts and Law, page 3, stipulated fact

2162number 7. A review of the record does not reveal any competent substantial evidence supporting

2177this finding of fact.

2181The Petitioner's second exception is accepted and the finding of fact in paragraph 5 in the

2197Recommended Order is rejected.

2201The Petitioner's third exception is directed at the ALJ's recommended penalty for

2213Respondent Haas. The Petitioner recites those portions of the Recommended Order that discuss

2226Rule 5J-17.011(2), F.A.C. establishes a minimum penalty for a first time offender of section

2240472.0351(1)(h), Florida Statutes to include a fine of $250, probation, and compliance with legal

2254obligation. The Petitioner correctly points out that the ALJ stated "none of the aggravating or

2269mitigating circumstances are present here to the extent necessary to warrant deviation from the

2283range of penalties already permitted within the guidelines with respect to Respondent Haas."

2296Thus, the Petitioner argues the ALJ's failure to include probation in his recommended penalty

2310for Respondent Haas is not supported by competent substantial evidence and is impermissibly

2323excludes an important discipline the Board imposes on all first time offenders.

2335Because Rule 51-17.011(2), F.A.C. establishes a minimum penalty for a first time

2347offender of section 472.0351(1)(h), Florida Statutes to include a fine of $250, probation, and

2361compliance with legal obligation, and the Board routinely imposes probation consistent with this ·

2375rule, the Petitioner's third exception is accepted. The record contains competent substantial

2387-------------------------------

2388evidence; and provides a basis to conclude that Respondent Haas, a first time offender found in

2404violation of section 4 72.0351 (1 )(h), Florida Statutes, shall at a minimum be placed on probation.

2421FINDINGS OF FACT

24241. The Department and the Board of Professional Surveyors and Mappers are

2436charged with regulating the practice of land surveying and mapping, pursuant to chapter 4 72,

2451Florida Statutes.

24532. After review of the record, it is determined that the Findings of Fact set forth in

2470paragraphs 2 through 4 and 6 through 28 of the Recommended Order are supported by

2485competent, substantial evidence and the Board adopts and incorporates them as if fully set forth

2500herein.

2501CONCLUSIONS OF LAW

25043. The Board has jurisdiction over the subject matter and parties to this proceeding

2518pursuant to Chapters 120 and 4 72, Florida Statutes.

25274. The Conclusions of Law set forth m paragraphs 29 through 84 of the

2541Recommended Order are supported by law and the Board adopts and incorporates them as if

2556fully set forth herein.

2560ORDER

2561Based on the foregoing Findings of Fact and Conclusions of Law, and being otherwise

2575fully advised in the premises it is hereby ORDERED that:

2585The ALJ' s Recommended Order is adopted in its entirety as herein modified;

2598In accordance with Rule 5J-17.011(2)(h), F.A.C., Respondent Wesley Brian Haas is

2609hereby placed on probation pursuant to Rules SJ-17.016, SJ-17.083, and SJ-17.085, F.A.C.;

2621In accordance with Rule SJ-17.011, F.A.C., Respondent Wesley Brian Haas shall pay an

2634administrative fine of $1,500.00 within 90 days of the date this Final Order is filed with the

2652Agency Clerk of the Department of Agriculture and Consumer Services, and;

2663This Final Order shall be placed in and become a part of the Respondent's official

2678records and shall take become effective on the date of filing with the Agency Clerk of the

2695Department of Agriculture and Consumer Services.

2701DONE and ORDERED at Tallahassee, Florida, this _3_ """' day of July, 2015

2714Jenn . Harper, Exec ive Director

2720Florida Board of Professional Surveyors

2725and Mappers

2727For Nicholas Fusco, Chair

2731NOTICE OF RIGHT TO APPEAL

2736Any party to these proceedings adversely affected by this Final Order is entitled to seek

2751judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, and Rule 9.110,

2766Florida Rules of Appellate Procedure. Judicial review proceedings must be instituted by filing a

2780Notice of Appeal with the Department's Agency Clerk, 407 South Calhoun Street, Suite 509,

2794Tallahassee, Florida, 32399-0800, within thirty (30) days of rendition of this order. A copy of

2809the Notice of Appeal must be filed with the Clerk of the appropriate District Court of Appeal

2826accompanied by any filing fees prescribed by law.

2834Copies furnished to:

2837Torben S. Madson, II

2841512 Peterson Avenue South

2845P.O. Box 1041

2848Douglas, Georgia

2850Wesley Brian Haas

28536256 Saxon Blvd.

2856West Palm Beach, Florida 3 3417

2862Board Counsel

2864Division of Administrative Hearings

28681230 Apalachee Parkway

2871Tallahassee, FL 32399

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Date
Proceedings
PDF:
Date: 07/14/2015
Proceedings: Agency Final Order filed.
PDF:
Date: 07/13/2015
Proceedings: Agency Final Order
PDF:
Date: 04/20/2015
Proceedings: (Respondent's) Exceptions to Recommended Order (filed in Case No. 15-000089).
PDF:
Date: 04/15/2015
Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Proposed Exhibits to Respondent.
PDF:
Date: 04/14/2015
Proceedings: Recommended Order
PDF:
Date: 04/14/2015
Proceedings: Recommended Order (hearing held February 20, 2015). CASE CLOSED.
PDF:
Date: 04/14/2015
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/07/2015
Proceedings: Notice of Filing (filed in Case No. 15-000089).
PDF:
Date: 04/01/2015
Proceedings: Petitioner's Notice of Filing (filed in Case No. 15-000089).
PDF:
Date: 03/24/2015
Proceedings: (Respondent's Amended) Proposed Recommended Order filed.
PDF:
Date: 03/23/2015
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 03/23/2015
Proceedings: Petitioner's Proposed Recommended Order (filed in Case No. 15-000089).
PDF:
Date: 03/20/2015
Proceedings: (Respondent's) Proposed Recommended Order filed.
Date: 03/12/2015
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 02/24/2015
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 02/20/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/09/2015
Proceedings: Petitioner's Unilateral Prehearing Statement filed.
PDF:
Date: 02/09/2015
Proceedings: Petitioner's Unilateral Prehearing Statement (filed in Case No. 15-000089).
PDF:
Date: 02/02/2015
Proceedings: Respondent's Unilateral Pre-hearing Admissions to Facts and Law, List of (Proposed) Exhibits and Witnesses filed.
PDF:
Date: 01/26/2015
Proceedings: Order Denying Motion to Dismiss.
PDF:
Date: 01/23/2015
Proceedings: Respondent's Response to Petitioner's Response to Respondent's Motion to Dismiss filed.
PDF:
Date: 01/16/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/16/2015
Proceedings: Notice of Hearing by Video Teleconference (hearing set for February 20, 2015; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 01/16/2015
Proceedings: Order of Consolidation (DOAH Case Nos. 15-0087PL and 15-0089).
PDF:
Date: 01/15/2015
Proceedings: Petitioner's Unilateral in Part and Joint in Part Response to Initial Order filed.
PDF:
Date: 01/08/2015
Proceedings: Initial Order.
PDF:
Date: 01/08/2015
Proceedings: Petitioner's Response to Respondent's Motion to Dismiss filed.
PDF:
Date: 01/08/2015
Proceedings: Motion to Dismiss with Prejudice filed.
PDF:
Date: 01/08/2015
Proceedings: Notice of Appearance (Torben Severin Madson, II ).
PDF:
Date: 01/08/2015
Proceedings: Request for Administrative Hearing filed.
PDF:
Date: 01/08/2015
Proceedings: Answer to Administrative Complaint filed.
PDF:
Date: 01/08/2015
Proceedings: Administrative Complaint filed.
PDF:
Date: 01/08/2015
Proceedings: Agency referral filed.

Case Information

Judge:
F. SCOTT BOYD
Date Filed:
01/08/2015
Date Assignment:
01/08/2015
Last Docket Entry:
07/14/2015
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (13):

Related Florida Rule(s) (4):