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.
Recommended Order on Tuesday, April 14, 2015.
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

- Date
- Proceedings
-
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 cover letter identifying the hearing record referred to the Agency.
-
PDF:
- Date: 03/23/2015
- Proceedings: Petitioner's Proposed Recommended Order (filed in Case No. 15-000089).
- 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 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: 01/23/2015
- Proceedings: Respondent's Response to Petitioner's Response to Respondent's Motion to Dismiss filed.
-
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).
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
-
Patrick Francis Creehan, Esquire
Address of Record -
Torben S. Madson, II, Esquire
Address of Record