94-000583RU Gary A. Burden vs. Board Of Land Surveyors Status: Closed DOAH Final Order on Friday, May 27, 1994.

Summary: Petitioner failed to prove ""policies"" of Board and failed to prove various rules were arbitrary or illegal. No bad faith by either party. No fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY A. BURDEN, ) CASE NOS. 94-0583RU

) 94-0584RU, 94-0585RU,

Petitioner, ) 94-0586RU, 94-0587RU,

) 94-0588RU, 94-0589RU,

vs. ) 94-0590RU, 94-0591RU,

) 94-0592RU, 94-0593RU,

BOARD OF PROFESSIONAL LAND ) 94-0609RX, 94-0610RX,

SURVEYORS, ) 94-0611RX, 94-0612RX,

) 94-0613RX, 94-0614RX,

Respondent. ) 94-0615RX, 94-0616RX

___________________________________)

BOARD OF PROFESSIONAL LAND )

SURVEYORS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0925F

)

GARY A. BURDEN, )

(T. S. MADSON, ESQUIRE) )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled cases on March 8 and March 14, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: T. S. Madson, II, Esquire

Post Office Box 13158

Gainesville, Florida 32604

For Respondent: Virginia Daire, Esquire

Department of Legal Affairs

Office of the Attorney General

The Capitol

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

CASES NUMBER 94-583RU - 94-593RU

Eleven separate petitions were filed pursuant to section 120.535, F.S.

alleging various non-rule policies of the Board of Professional Land Surveyors

and requesting that those alleged policies be adopted by rule. The threshold

issue in these cases is whether such policies exist; if so, it must be

determined whether they are rules, as defined in section 120.52(16), and whether

rulemaking is feasible and practicable, as provided in section 120.535(1), F.S.

CASES NUMBER 94-0609RX - 94-0616RX

The eight petitions in these consolidated cases are challenges to specific

provisions within Chapter 61G17-6, F.A.C. (formerly 21HH-6, F.A.C.), "Minimum

Technical Standards", relating to the practice of land surveying, adopted by the

Board of Professional Land Surveyors. The issue in these cases is whether those

specific provisions are invalid exercises of delegated legislative authority, as

alleged by Petitioner.

CASE NUMBER 94-0925F

In this case, Respondent seeks attorney's fees and costs from counsel for

Petitioner pursuant to section 120.57(1)(b)5., F.S. The issue, therefore, is

whether an award under that section is appropriate.

OTHER ISSUES

Respondent does not dispute the standing of Petitioner in the sections

120.535 and 120.56, F.S. cases.

Petitioner, in his proposed order, argues that he, not Respondent, is

entitled to fees and costs. Petitioner also argues that his subpoena were

properly served by mail on various board members. Those two issues are thus

addressed in this order.

PRELIMINARY STATEMENT

Nineteen petitions challenging alleged unwritten policies and promulgated

rules were filed by Petitioner and were assigned by the Division Director on or

about February 9, 1994, to Hearing Officer Claude B. Arrington. The cases were

consolidated.

After a motion hearing, Hearing Officer Arrington ruled on pending motions

in an order entered on March 1, 1994. Thereafter, the cases were transferred to

Hearing Officer Don Davis. After considering a motion to recuse, Hearing

Officer Davis granted the motion and transferred the case to Hearing Officer

Clark, who convened the hearing as scheduled. Case Number 94-0925F was

consolidated with the underlying rule challenge cases.

At hearing, Petitioner presented the testimony of Benjamin Paul Blackburn,

qualified as an expert in land surveying. Petitioner's exhibits Number 1-11

were received in evidence.

Respondent presented the testimony of Diane Jones, qualified as an expert

in land surveying; and Miriam Wilkinson. Respondent's exhibits Number 1 and 2

were received in evidence. Without objection, official recognition was taken of

DBPR v. Gary A. Burden, DOAH Number 93-6433, pending a disciplinary case under

section 120.57(1), F.S. The hearing officer denied Respondent's request to

present testimony of T.S. Madson, counsel for Gary Burden in these cases and the

section 120.57(1) case.

After the hearing both parties submitted proposed orders. The findings of

fact proposed by each are addressed in the attached appendix.

FINDINGS OF FACT

1. Gary A. Burden (Burden) is a professional land surveyor registered in

the state of Florida pursuant to Chapter 472, F.S. The parties have stipulated

that he is substantially affected by the rules of the Board of Professional Land

Surveyors (Board).

2. On June 22, 1993, the Department of Professional Regulation (now,

Department of Business and Professional Regulation, DBPR) issued an

administrative complaint alleging that Burden failed to follow minimum technical

standards for land surveying in a boundary survey he performed for Lot 33,

Lafayette Forest, in Seminole County, Florida. The complaint alleged seven

specific deficiencies and cited the Board rule which applies to each.

(Petitioner's exhibit Number 9)

3. The seven specific violations are identified in a consultant's report

dated April 1, 1993, from Dianne Jones, PLS, to the Board. (Petitioner's Number

10)

4. Burden requested a formal hearing on the complaint and the case was

referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH

Case Number 93-6433. On February 14, 1994, Hearing Officer, Ella Jane P. Davis

issued an order on all motions pending as of that date. The order includes

these pertinent provisions describing discussions at a January 20, 1994,

conference call between the hearing officer and counsel for the parties:

2. The undersigned also advised the parties

that the instant Section 120.57(1), F.S.

proceeding was not the appropriate vehicle to

raise what appeared to be challenges in

existing rules named in Respondent's

affirmative defenses and that challenges to

existing rules can only be initiated pursuant

to Section 120.56, F.S. Further, the parties

were informed that challenges to existing

rules could not and would not be resolved by

the Recommended Order to be entered in the

instant Section 120.57(1), F.S. license

disciplining proceeding.

3. After hearing oral argument, the

undersigned further requested that the

parties file their respective memoranda as

to whether the instant case had any Section

120.535, F.S. ramifications.

5. Shortly after the January 20th telephone conference, Gary Burden,

through counsel, filed the nineteen petitions that are the subject of this

proceeding.

6. The eleven petitions filed pursuant to section 120.535, F.S. request

that these alleged policies of the Board be promulgated as formal rules:

a) The Board's refusal to allow land

surveyor registrants to incorporate other

recorded instruments into their drawings

by reference;

b) The Board's determination of what

constitutes "substantial compliance" to the

minimum technical standards;

c) The Board's application of a

"substantial compliance" standard to

probationary registrants, but a "strict

compliance" standard to accused registrants.

d) The Board's assessment of a single

penalty, no matter how major or minor the

offense;

e) The Board's refusal to utilize the simple

citation rule found at rule 61G17-9.004,

F.A.C. (providing for disciplinary citation

and fine);

f) The Board's refusal to allow its

registrants to mitigate damage to the public.

g) The Board's equating the determination of

boundaries to real property to the words

contained in recorded deeds and plats;

h) The Board's equating the standards of

practice for "corners" with the standards of

practice for "monuments".

i) The Board's need to define the meaning

of the term, "fixed improvements";

j) The Board's requirement that lot and

block numbers be shown on a survey drawing

in a specific location; and

k) The Board's requirement that registrants

measure distances and directions to

"reference points".

7. Burden did not testify at hearing, nor did he appear in person at the

hearing. His single witness, Benjamin Paul Blackburn, has been registered as a

land surveyor since 1969. Blackburn has been before the Board once on

allegations of minimum technical standard violations, and the charges were

dismissed; he has attended two Board meetings in the last year, and attended

once in 1981 when the Board was promulgating rules. He has been an active

member of the state professional association and was president of the

association in the past. Blackburn was an articulate and sincere witness;

however, he has no competent knowledge of the policies of the Board. His

information comes from talking with other surveyors and from attending training

seminars sponsored by the association. He freely admits that he has no direct

knowledge of many of the policies alleged by Burden; in some instances his

understanding of the Board's policy is contrary to that alleged by Burden. For

example, Blackburn believes the Board has allowed surveyors to mitigate damages;

he also believes the Board allows incorporation by reference on surveys and

maps.

8. Counsel for Burden attempted to compel the appearance of Board members

by mailing subpoena to them, certified mail, with witness checks enclosed. On

the advice of counsel that the service was defective, the members did not

appear. Documents sought by the subpoena duces tecum were voluntarily produced

by the Board's Executive Director, an employee of the DBPR, Angel Gonzalez, to

the extent that he was able to obtain the documents and records.

9. Diane Jones has been registered as a land surveyor for seven years and

worked as an intern in the field for fifteen years. She has been employed by

DBPR in the past as a consultant in cases the agency brings to the Board. She

was a consultant in the Burden case. Ms. Jones was unable to confirm that the

alleged policies were, in fact, Board policies. Her understanding was similar

to Blackburn's, generally. In her capacity as consultant to DBPR in discipline

cases, she has no difficulty interpreting and applying the minimum technical

standards or other rules of the Board, based on her knowledge of the rules and

her professional experience.

10. In addition to alleging unwritten policies by the Board, Burden

challenges a series of existing Board rules which he claims are invalid

exercises of legislative delegation. For each rule that is a subject of his

petitions, he claims invalidity based on excess of rulemaking authority,

enlargement or modification of the law, vagueness and capriciousness. More

specifically, Burden claims the following:

a) Rules 61G17-6.002(2) and

61G17-6.002(6)(g), F.A.C. (defining "corner"

and "land or Boundary Survey", respectively)

illegally attempt to grant the land surveyor

the right to establish or re-establish

"boundary lines";

b) Rule 61G17-6.003(4), F.A.C. illegally

requires a basis of bearing to be shown;

c) Rule 61G17-6.003(8)(a), F.A.C. is

non-specific about the location of lot and

block numbers on a survey drawing;

d) Rule 61G17-6.003(15), F.A.C. illegally

requires land surveyors to state certain

unnecessary data for survey corners.

e) Rule 61G17-6.003(18), F.A.C. illegally

requires the land surveyor to place almost

all abbreviations in a legend or not use such

abbreviations;

f) Rule 61G17-6.003(13), F.A.C. illegally

requires the land surveyor to show

unidentified "fixed improvements";

g) Rules 61G17-6.003(8)(c) and (d) illegally

require a land surveyor to perform a

comparative analysis to reference points

other than those described at

Rule 61G17-6.002(5), F.A.C.; and

h) Rule 61G17-6.003(10), F.A.C. illegally

requires the land surveyor to show adjoining

elements and rights of way which are shown

on instruments incorporated by reference into

the survey drawing.

11. Rules 61G17-6.002(2) and 61G17-6.002(6)(g) provide:

(2) Corner: shall mean a point on a land

boundary that designates a change in

direction, for example: points of curvature,

points of tangency, points of compound

curvature and so forth.

. . .

(6) Survey: shall mean the orderly process

of determining data relating to the physical

or chemical characteristics of the earth, and

may be further defined according to the type

of data obtained, the methods and instruments

used, and the purpose(s) to be served. All

surveys showing land boundary information

must be in accordance with Rule 61G17-6.003.

For purposes of this rule, types of surveys

shall include the following definitions:

. . .

(g) Land or Boundary Survey: shall mean a

survey, the primary purpose of which includes,

but is not limited to, the determining of the

perimeters of a parcel or tract of land by

establishing or re-establishing corners,

monuments, and boundary lines for the

purposes of describing, locating of fixed

improvements, or platting or dividing the parcel.

According to Blackburn, the deed rather than the surveyor establishes the land

boundaries. This argument or fact does not provide a basis to invalidate the

rules as the rules do not require or allow a surveyor to create boundaries as an

extent of legal possession. Rather, the purpose of the rules is clearly stated

in (6)(g). The language of the rules is consistent with treatises and textbooks

that are nationally recognized. The American Congress on Surveying and Mapping

(ACSM) and the American Society of Civil Engineers (ASCE) jointly adopted this

definition in 1978:

Land surveying is the art and science of:

(1) Re-establishing cadastral surveys and

land boundaries based on documents of record

and historical evidence; (2) planning,

designing and establishing property

boundaries; and (3) certifying surveys as

required by statute or local ordinance such

as subdivision plats, registered land

surveys, judicial surveys, and space

delineation. Land surveying can include

associated services such as mapping and

related data accumulation; construction

layout surveys; precision measurements of

length, angle, elevation, area and volume;

horizontal and vertical control systems; and

the analysis and utilization of survey data."

(Respondent's exhibit Number 2)

12. Rule 61G17-6.003(4), F.A.C. provides:

(4) A reference to all bearings shown must be

clearly stated, i.e., whether to "True North";

"Grid North as established by the NOS";

"Assumed North based on a bearing for a well

defined line, such as the center line of a

road or right of way, etc."; "a Deed Call for

a particular line"; or "the bearing of a

particular line shown upon a plat."

References to Magnetic North should be

avoided except in the cases where a

comparison is necessitated by a Deed Call.

In all cases, the bearings used shall be

referenced to some well-established line.

Both parties' experts agree that the purpose of this rule is to relate the

property surveyed to an established line so that subsequent surveyors could

retrace or reconstruct what the surveyor did with regard to angles and the like.

"Assumed north" is simply a direction assumed and does not relate to a compass

direction. If only angles are shown, and no bearings, the rule does not apply.

Bearings are a way of indicating angular relationships; an angle can be

developed from the bearings. The rule legitimately fulfills its purpose of

avoiding ambiguity.

13. Rule 61G17-6.003(8)(a), F.A.C. provides:

(8) Surveys of all or part of a lot(s) which

is part of a recorded subdivision shall show

the following upon the drawing:

(a) The lot(s) and block numbers or other

designation, including those of adjoining

lots.

This is not a complicated rule. Showing the lot numbers helps interpret and

orient the map. Even though the title of the survey or text on the survey may

identify the lot number of the lot being surveyed, including the number on the

face of the drawing makes the survey easier to read.

14. Rule 61G17-6.003(15), F.A.C. provides:

(15) The surveyor shall make a determination

of the correct position of the boundary of

the real property and shall set monuments,

as defined herein, unless monuments already

exist at such corners. All monuments, found

or placed, must be described on the survey

drawing. When the property corner cannot be

set, a witness monument shall be placed with

data given to show its location upon the

ground in relation to the boundary lines or

corner. The corner descriptions shall state

the size, material, and cap identification

of the monument as well as whether the

monument was found or set. The distance

along boundaries between monuments shall

not exceed fourteen hundred feet. When a

parcel has a natural and/or an artificial

feature such as a roadway, river, lake,

beach, marsh, stream or other irregular

boundary as one or more of its boundaries,

then a monument meander or survey line shall

be established either directly along or near

the feature. Dimensions shall be shown

between the meander or survey line and the

boundary line sufficient to show the

relationship between the two.

Even though monuments may be accidentally or deliberately moved by contractors,

property owners or neighbors, the monuments are still an important feature of a

survey. A prudent surveyor would not rely on an existing monument without

looking for signs of disturbance and verifying its placement. The efficiency of

showing and describing a monument outweighs any danger of including it.

15. Rule 61G17-6.003(18), F.A.C. provides:

(18) ABBREVIATIONS:

(a) Abbreviations generally used by the

public or in proper names that do not relate

to matters of survey are excluded from the

legend requirement.

(b) Acceptable abbreviations on the face of

maps, plats, or survey drawings are:

N = North

S = South

E = East

W = West

or any combination such as NE, SW, etc.

. = Degrees

' = Minutes when used in bearing

" = Seconds when used in a bearing

' = Feet when used in a distance

" = Inches when used in a distance

AC = Acres

= More or less (or Plus or Minus)

(c) Any other abbreviations relating to

survey matters must be clearly shown within a

legend or notes appearing on the face of the

drawing.

Blackburn contends that the legend requirement is time-consuming, expensive and

unnecessary. A surveyor, however, is not required to use abbreviations. To the

extent that they are used, they should be explained on the face of the document.

A legend facilitates interpretation of the survey and eliminates questions or

ambiguities. The rule establishes some clear exceptions to the legend

requirement in subsection (b). According to Diane Jones, subsections (a) and

(c) of the rule are vague and confusing. In her opinion, every abbreviation

that is not addressed in subsection (b) should be explained in a legend on the

survey. She, therefore, would prefer to see everything explained on the face of

the document, while Petitioner prefers to dispose of the legend altogether.

Reasonable minds plainly differ; although the rule could be improved with

rewording, as suggested by Ms. Jones, it is not invalid for the reasons advanced

by Petitioner.

16. Rule 61G17-6.003(13), F.A.C. provides:

(13) Location of fixed improvements

pertinent to the survey shall be shown upon

the drawing in reference to the boundaries,

either directly or by offset lines. If

fixed improvements are not located or do not

exist, a note to this effect shall be shown

upon the drawing. Pertinent improvements

are improvements made for the enjoyment of

the property being surveyed and shall

include docks, boathouses, and similar

improvements.

According to Blackburn, inclusion of fixed improvements on the survey should

depend on what the client has ordered. He also feels the rule results in

surveys that are misleading to the public as the inclusion of any fixed

improvements would imply that those are the only fixed improvements in the area.

These concerns are mutually inconsistent. The rule is clear and unambiguous.

It is also consistent with accepted principles of land survey practice.

17. Rules 61G217-6.003(8)(c) and (d), F.A.C. provide:

(8) Surveys of all or part of a lot(s) which

is part of a recorded subdivision shall show

the following upon the drawing:

. . .

(c) A comparison between the recorded

directions and distances with field measured

directions and distances to the nearest

street centerline, right of way intersection

or other identifiable reference points where

the block lines are straight.

(d) A comparison between the recorded

directions and distances or computed

directions and distances based upon the

recorded data with field measured directions

and distances to an identifiable reference

point where the block lines are curved.

The requirements of these rules are clear to a practicing land surveyor.

"Reference point" is described in rule 61G17-6.002(5), F.A.C. as ". . . any

defined position that is or can be established in relation to another defined

position." Contrary to Petitioner's assertion, there is no conflict between the

requirements of (c) and (d), and the definition of "reference point".

18. Rule 61G17-6.003(10), F.A.C. provides:

(10) All recorded public and private rights

of way shown on applicable recorded plats

adjoining or across the land being surveyed

shall be located and shown upon the drawing.

Easements shown on applicable record plats or

open and notorious evidence of easements or

rights of way on or across the land being

surveyed shall be located and shown upon the

drawing. If streets or street rights of way

abutting the land surveyed are not physically

open, a note to this effect shall be shown

upon the drawing. If location of easements

or rights of way of record, other than those

on record plats, is required, this

information must be furnished to the surveyor.

This rule requires that specific information be included even when that

information may already be found on material incorporated by reference, like a

plat, for example. The rule serves the legitimate purpose of saving the user

from time consuming research. The survey should stand alone as a complete

document.

19. In summary, the rules at issue are valid and reasonably clear and

consistent with establishing principles guiding the practice of professional

land surveying. According to Brown, Robillard, and Wilson, Evidence and

Procedures for Boundary Location, 2nd Ed (Respondent's Ex. 2):

A plat should tell a complete story; it

should show sufficient information to allow

any other surveyor to understand how the

survey was made and why the survey was

correct. It also should show complete

information on encroachments to enable any

attorney or others to evaluate properly the

effect of continued possession. (p.350)

. . .

A plat should be complete in itself and

should present sufficient evidence of

monuments (record and locative) and

measurements so that any other surveyor can

clearly, without ambiguity, find the locative

points and follow the reasonings of the

surveyor. A plat does not show the client's

land alone; it shows all ties necessary to

prove the correctness of location. If it is

necessary to measure from a mile away to

correctly locate a property, that tie, as

measured, is shown. (p. 360)

20. There is no evidence in this proceeding that either party or attorney

filed pleadings or papers for any improper purpose, such as delay harassment,

increase in cost or otherwise. The petitions are numerous, but they relate to

rules or alleged policies at issue in a separate disciplinary action, and, on

their face, they raise legitimate issues. Respondent's defense was necessary

and appropriate.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction in this

consolidated proceeding pursuant to sections 120.535, 120.56, and 120.57(1),

F.S.

22. Section 120.535, F.S. provides, in pertinent part:

120.535 Rulemaking required.-

(1) Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule under s.120.52(16) shall be

adopted by the rulemaking procedure provided

by s. 120.54 as soon as feasible and

practicable. Rulemaking shall be presumed

feasible and practicable to the extent

provided by this subsection unless one of

the factors provided by this subsection is

applicable.

A "rule" is an

. . . agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes

the organization, procedure, or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendment or

repeat of a rule. . . .

Section 120.52(16), F.S.

23. Petitioner failed to prove the existence of the policies he alleges

are applied by the Board. Moreover, if the "policies" described in the

petitions in cases Number 94-0584RU through 94-0593RU are being applied in

Petitioner's discipline case, there is no evidence whatsoever that these

"policies" are generally applied by the Board, to bring them within the

definition of a rule. Petitioner failed to prove the threshold element in his

section 120.535 cases, and it is unnecessary to address the feasibility or

practicality of rulemaking as to the "policies" at issue.

24. Section 120.56, F.S. describes the process through which any person".

. . substantially affected by a rule may seek an administrative determination of

the invalidity of the rule on the ground that the rule is an invalid exercise of

delegated legislative authority." As stipulated, Gary Burden is substantially

affected by the rules he seeks to have declared invalid in cases Number 94-

0609RX through 94-0616RX.

25. "Invalid exercise of delegated legislative authority" means

. . . action which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one or more of the following

apply:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency or

(e) The rule is arbitrary or capricious.

Section 120.52(8), F.S.

26. The specific authority for, and law implemented by, the existing rules

at issue is section 472.027, F.S., which provides:

472.027 Minimum technical standards for

land surveying.- The board shall adopt rules

relating to the practice of land surveying

which establish minimum technical standards

to assure the achievement of no less than

minimum degrees of accuracy, completeness,

and quality in order to assure adequate and

defensible real property boundary locations

and other pertinent information provided by

land surveyors under the authority of ss.

472.001-472.039.

Rulemaking authority of the Board is also found at section 472.008, F.S., which

provides, in pertinent part:

472.008 Rules of the board. - The board

shall adopt such rules not inconsistent with

law as may be necessary to carry out the

duties and authority conferred upon the board

by this chapter. . . .

27. Case law on rule challenges is succinctly summarized in the recent

case, Department of Labor and Employment Security, etc. v. Jack Bradley, et al,

19 Fla. Law Weekly D999 (Fla. 1st DCA opinion filed 5/3/94):

It is an established principle that "[w]here

the empowering provision of a statute states

simply that an agency 'may make such rules

and regulations as may be necessary to carry

out the provisions of this act,' the validity

of the regulations promulgated thereunder

will be sustained as long as they are

reasonably related to the purposes of the

enabling legislation, and are not arbitrary

or capricious." Adam Smith Enterprises v.

Department of Environmental Regulation, 553

So.2d 1260, 1271 (Fla. 1st DCA 1989). See

also General Telephone Co. of Florida v.

Florida Public Service Commission, 446 So.2d

1063, 1067 (Fla. 1984); General Motors Corp.

v. Department of Highway Safety & Motor

Vehicles, 625 So.2d 76, 78 (Fla. 1st

DCA 1993).

In a rule challenge, "the burden is upon one

who attacks a proposed rule to show that the

agency, if it adopts the rule, would exceed

its authority; that the requirements of the

rule are not appropriate to the end specified

in the legislative act; that the requirements

contained in the rule are not reasonably

related to the purpose of the enabling

legislation or that the proposed rule or the

requirements thereof are arbitrary or

capricious." Agrico Chemical Co. v.

Department of Environmental Regulation, 365

So.2d 759, 763 (Fla. 1st DCA 1978), cert.

denied, 376 So.2d 74 (Fla. 1979). Another

settled principle in the area of

administrative rulemaking is that-

agencies are to be accorded wide

discretion in the exercise of their

rulemaking authority, clearly conferred or

fairly implied and consistent with the

agencies' general statutory duties. ...

An agency's construction of the statute it

administers is entitled to great weight and

is not to be overturned unless clearly

erroneous . . . the agency's interpretation

of a statute need not be the sole possible

interpretation or even the most desirable

one; it need only be within the range of

possible interpretations.

Department of Professional Regulation, Board

of Medical Examiners v. Durrani, 455 So.2d

515, 517 (Fla. 1st DCA 1984). See also GMC

v. Dept. of Hwy. Safety, 625 So.2d at 77,

Florida League of Cities v. Department of

Insurance, 540 So.2d 850, 857 (Fla. 1st

DCA 1989).

Id., at D1001

28. Petitioner failed to meet his burden of proving the invalidity of the

Board's minimum technical standards. He and his expert witness disagree with

the Board's interpretations, but that simple disagreement, however sincere, is

insufficient to establish the rules' invalidity.

29. As found above, neither party is entitled to fees or other sanctions

pursuant to subsection 120.57(1)(b)5., which provides:

5. All pleadings, motions, or other papers

filed in the proceeding must be signed by a

party, the party's attorney, or the party's

qualified representative. The signature of

a party, a party's attorney, or a party's

qualified representative constitutes a

certificate that he has read the pleading,

motion, or other paper and that, to the

best of his knowledge, information, and

belief formed after reasonable inquiry, it

is not interposed for any improper purposes,

such as to harass or to cause unnecessary

delay or for frivolous purposes or needless

increase in the cost of litigation. If a

pleading, motion, or other paper is signed

in violation of these requirements, the

hearing officer, upon motion or his own

initiative, shall impose upon the person

who signed it, a represented party, or

both, an appropriate sanction, which may

include an order to pay the other party or

parties the amount of reasonable expenses

incurred because of the filing of the

pleading, motion, or other paper, including

a reasonable attorney's fee.

The sheer bulk of Petitioner's pleadings does not establish bad faith or

improper purpose.

30. Finally, Petitioner claims that his subpoena to Board members were

properly served by mail. His reliance on Rule 1.080(b), Fla. Rules of Civil

Procedure, is misplaced, as the rule, by its title and text relates to service

of pleadings and papers. Service of subpoena is entirely different. See rule

1.410(c), Fla. Rules of Civil Procedure; sections 48.011, .021 and .031, F.S.;

and section 120.58, F.S. Note that section 48.031(3), F.S., provides for

service by mail only for witness subpoena in misdemeanor criminal cases, and no

other cases.

ORDER

Based on the foregoing, it is hereby, ORDERED:

The petitions, in each and every case styled above, are DISMISSED.

DONE AND ORDERED this 27th day of May, 1994, in Tallahassee, Florida.

___________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of May, 1994.

APPENDIX

Pursuant to section 120.59(2), F.S., the following constitute specific

rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings

1. Adopted in paragraph 1.

2. As to the alleged policies that are the subject of the section 120.535

petitions, rejected as unsupported by competent evidence; otherwise, rejected as

unnecessary.

3. Addressed in conclusions of law.

4. Rejected as unnecessary.

5. Adopted in part in paragraph 8, otherwise rejected as unnecessary or

unsupported by competent evidence.

6.-7. Rejected as unnecessary.

8. Adopted in substance in paragraph 20.

9. Adopted in substance in paragraphs 4. and 5.

10.-19. Rejected as immaterial, unsupported by the record or argument,

rather than proposed findings of fact. The evidence failed to establish the

existence of alleged Board policy or that any such policy meets the definition

of "rule" in section 120.52(16), F.S.

20.-27. Rejected as unsupported by the weight of evidence, immaterial or

argument, rather than proposed finding of fact.

28.-29. Adopted in substance in paragraphs 4. and 20.

30.-33. Rejected as unsupported by competent evidence, and (as to the

conclusion that section 120.57(1)(b)5. was violated) unsupported by the law.

Respondent's Proposed Findings of Fact

1.-6. Addressed in Preliminary Statement.

7.-10. Addressed in Conclusions of Law.

11. Rejected as unnecessary.

12. Addressed in Conclusions of Law.

13. Rejected as unnecessary.

14. Addressed in Conclusions of Law.

15.-20. Rejected as statement of testimony, or as argument, rather than

proposed finding of fact.

21.-22. Rejected as contrary to the weight of evidence, and a conclusion

unsupported by the record.

COPIES FURNISHED:

T. S. Madson, II, Esquire

Post Office Box 13158

Gainesville, Florida 32604

Virginia Daire, Esquire

Department of Legal Affairs

Office of the Attorney General

The Capitol

Tallahassee, Florida 32399-1050

Angel Gonzalez, Executive Director

Board of Professional Land

Surveyors

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, Acting General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliot Building

401 South Monroe Street

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial

review pursuant to Section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of a notice of appeal with the agency clerk of the

Division of Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First District, or

with the District Court of Appeal in the appellate district where the party

resides. The notice of appeal must be filed within 30 days of rendition of the

order to be reviewed.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

GARY A. BURDEN, NOT FINAL UNTIL TIME EXPIRES

TO FILE REHEARING MOTION AND

Cross-appellee, DISPOSITION THEREOF IF FILED.

v. CASE NO. 94-2018

DOAH CASE NO. 94-0583RU

BOARD OF PROFESSIONAL LAND

SURVEYORS,

Cross-appellant.

____________________________/

Opinion filed July 26, 1995.

An appeal from order of the Division of Administrative Hearings.

Robert A. Butterworth, Attorney General and Virginia Daire, Senior Assistant

Attorney General, Tallahassee, for cross-appellant.

T.S. Madson, II, Douglas, Georgia, for cross-appellee.

PER CURIAM

AFFIRMED. Florida Rule of Appellate procedure 9.315(a).

ZEHMER, C.J., ALLEN and DAVIS, JJ. CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA

FIRST DISTRICT

To the Honorable, Mary Clark, Hearing Officer Division of Administrative

Hearings

WHEREAS, in that certain cause filed in this Court styled:

GARY A. BURDEN

vs. Case No. 94-2018

Your Case No. 94-0925F

BOARD OF PROFESSIONAL (CONSOLIDATED UNDER LOWEST

LAND SURVEYORS DOAH CASE NO. 94-583RU)

The attached opinion was rendered on July 26, 1995

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said

opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehrner

Chief Judge of the District Court of Appeal of Florida, First District and

the Seal of said court at Tallahassee, the Capitol, on this 30th day of October,

1995

___________________________________________

Jon S. Wheeler

Clerk, District Court of Appeal of Florida,

First District