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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

Respondents.

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

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

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

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

caveat that it contained hearsay.

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

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

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

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

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

Order may refer to the "Respondents."

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

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

STATEMENT OF THE ISSUE

Whether the Respondent Haas failed to comply with various Minimal Technical

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

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

472.0351, Florida Statutes (2012), and if so, what is the appropriate penalty.

STANDARD OF REVIEW OF RECOMMENDED ORDER

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

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

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

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

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

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

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

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

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

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

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

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

which it has substantive jurisdiction and interpretation of administrative rules over

which it has substantive jurisdiction. When rejecting or modifying such

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

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

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

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

than that which was rejected or modified.

RULING ON EXCEPTIONS

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

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

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

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

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

120.57(1)(k), Florida Statutes, the Board makes no ruling on the first four exceptions listed under

the heading "Exceptions."

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

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

and II of the Recommended Order.

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

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

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

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

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

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

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

paragraphs 9 and 1 0 in the Recommended Order.

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

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

paragraph.

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

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

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

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

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

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

not dated (Tr. p. 44).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

not be disturbed.

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

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

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

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

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

17.052(2)(a)8., F.A.C. The Respondent does not identify the portion of the Recommended Order;

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

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

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

paragraph.

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

the record establishes competent substantial evidence supports paragraph 19 in the

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

bounds (Tr. p. 61).

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

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

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

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

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

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

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

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

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

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

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

17.052(2)(b)7, F.A.C. is a reasonable interpretation of the rule and is more reasonable than that

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

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

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

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

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

to Recommended Order"

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

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

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

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

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

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

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

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

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

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

"Petitioner's Proposed Exceptions"

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

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

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

Department has jurisdiction over disciplinary proceedings under section 742.033, Florida

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

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

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

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

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

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

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

reference to the Board.

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

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

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

chapter 4 72, Florida Statutes."

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

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

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

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

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

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

this finding of fact.

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

Recommended Order is rejected.

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

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

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

472.0351(1)(h), Florida Statutes to include a fine of $250, probation, and compliance with legal

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

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

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

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

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

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

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

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

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

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

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

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

FINDINGS OF FACT

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

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

Florida Statutes.

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

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

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

herein.

CONCLUSIONS OF LAW

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

pursuant to Chapters 120 and 4 72, Florida Statutes.

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

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

fully set forth herein.

ORDER

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

fully advised in the premises it is hereby ORDERED that:

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

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

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

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

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

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

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

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

Department of Agriculture and Consumer Services.

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

Jenn . Harper, Exec ive Director

Florida Board of Professional Surveyors

and Mappers

For Nicholas Fusco, Chair

NOTICE OF RIGHT TO APPEAL

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

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

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

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

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

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

accompanied by any filing fees prescribed by law.

Copies furnished to:

Torben S. Madson, II

512 Peterson Avenue South

P.O. Box 1041

Douglas, Georgia

Wesley Brian Haas

6256 Saxon Blvd.

West Palm Beach, Florida 3 3417

Board Counsel

Division of Administrative Hearings

1230 Apalachee Parkway

Tallahassee, FL 32399