07-000680PL Department Of Business And Professional Regulation, Board Of Professional Surveyors And Mappers vs. Stephen Phillips Kilmon Status: Closed Recommended Order on Thursday, July 19, 2007.

Summary: Respondent incorrectly named a "Quantity Survey" as a "Specific or Special Purpose Survey."

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF PROFESSIONAL SURVEYORS )

AND MAPPERS, )

)

Petitioner, )

)

vs. ) Case No. 07 - 0680PL

)

STEPHEN PHILLIPS KILMON, )

)

R espondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on May 10, 2007, in

Tallahassee, F lorida.

APPEARANCES

For Petitioner: Eric R. Hurst

Charles F. Tunnicliff

Assistants General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Stephen Phillips Kilmon, pro se

2010 Northeast 122 Road

North Miami, Florida 33181

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, Stephen

Phillips Kilmon, committed the violations alleged in an Amended

Administrative Complaint issued by the Petitio ner Department of

Business and Professional Regulation on January 25, 2007, and,

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On January 25, 2007, Petitioner issued a 20 - count Amended

Administrative Complaint in Department of Business a nd

Professional Regulation Case No. 2003 - 094756 against Respondent,

alleging that Respondent had committed violations of

Chapter 472, Florida Statutes, and rules adopted thereunder.

Respondent executed and filed a n Election of Rights form

request ing a form al hearing to contest the allegations of fact

contained in the Amended Administrative Complaint.

Respondent's request for hearing was filed with the

Division of Administrative Hearings on February 12, 2007, with a

request that it be assigned to an administ rative law judge. The

request was designated DOAH C ase number 07 - 0680 PL and was

assigned to the undersigned. The final hearing of this matter

was scheduled for May 10, 2007, by Notice of Hearing March 5,

2007.

Prior to the commencement of the final heari ng, the parties

filed a Joint Stipulation of Facts . To the extent relevant,

those stipulated facts have been included in this Recommended

Order.

At the final hearing, Petitioner presented the testimony of

Stephen Kellogg and Arthur Albert Mastronicola, Jr . Both were

accepted as experts in surveying and mapping. Petitioner's

Exhibits numbered 1 through 7, were admitted. Respondent

testified in his own behalf and presented the testimony of

Harley C. Gilmore, an expert in surveying and mapping .

Respondent off ered and had one E xhibit admitted.

A Transcript of the final hearing was filed with the

Division of Administrative Hearings on June 1, 2007 . By Notice

of Filing Transcript entered June 4, 2007 , the parties were

informed that their proposed recommended orders were to be filed

on or before June 11, 2007 . Both parties filed Proposed

Recommended O rders on or before June 11, 2007. Their proposals

have been fully considered in entering this Recommended Order.

All references to Florida Statutes and the Flor ida

Administrative Code in this Recommended Order are to the

versions applicable to this matter unless otherwise indicated.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Business and Professional

Regulation, Board of Professional Sur vey ors and Mappers

(hereinafter referred to as the "Department"), is the state

agency charged in Chapter 472, Florida Statutes, with the duty,

among other things, of regulating the practice of land surveying

and mapping.

2. At the times material to this p roceeding, Stephen

Phillips Kilmon , is and was a licensed Florida Surveyor and

Mapper, having been issued license number LS 5439.

3. At the times material to this proceeding, Mr. Kilmon

was doing business as Via L ink, Inc., a licensed surveyor

business, ha ving been issued license number LB 6648.

4. Mr. Kilmon's address is 2010 Northeast 122 Road, North

Miami, Florida 33181.

5. Mr. Kilmon obtained his license in January 1995.

Before obtaining his license and b eginning in 1980, he obtained

experience in su rveying, mapping, civil engineering, computer

aided design drafting, and information management systems , which

ultimately led to his licensure.

B. The Fiddler's Creek Project .

6 . 951 Land Holdings, Ltd. (hereinafter referred to as

"951") , through Holes M ontes & Associates (hereinafter referred

to as "Holes Montes") , was engaged in the development of a

housing/golf course project in Naples, Florida (hereinafter

referred to as the "Fiddler's Creek Project").

7 . A portion of the Fiddler's Creek Project was being

constructed by Atlantic Civil , Inc. (hereinafter referred to as

"ACI"). Among other things, ACI was engaged in the excavation

of several lakes and the creation of an upland golf course in a

wetlands' area. ACI was, however, having difficulty comple ting

the excavation of the lakes due to apparent back - fill which was

preventing ACI from achieving the contracted depth of - 18 feet

National Geiodetic Vertical Datum 1929 . Mr. Kilmon described

the problem as follows:

. . . each lake became mysteriously b ack -

filled to a depth of - 14 feet, National

Geiodetic Vertical Datum 1929 (NGVD29)

virtually overnight not allowing ACI to

achieve reaching their contract depth of - 18

NGVD29 for the bottom of any lake. The

analogy is like digging a small hole in the

sand a the be a ch near the water only to

watch it fill with more sand and water each

time you scoop out the material. The result

of ACI's futile efforts to achieve and

maintain - 18 NGVD29 for any lake caused an

over - excavation in cubic yards per lake,

long bef ore ACI could finish cutting out the

lake pattern or design template. . . . ACI

filled its construction site limits to more

than 110% of the cubic yards HMA [Holes

Montes & Associates] designed for it, yet

only completed 75% of the lakes final design

temp late. ACI sought reasonable contr a ct

relief from 951 in achieving the

unattainable contract required - 18 NGVD29

lake bottom depth due to the natural back -

fill of liquid sand conditions below the

initial 4~6 feet of cap rock, and 951

refused. ACI's positi on then became that

951 was taking advantage of its contractor

to force excessive extraction of "free" fill

material for 951 at the unfair expense of

ACI. . . . ACI then made the attempt hiring

ViaLink to identify the approximate best

known volume of exca vated "fill" material

placed onsite from the lakes, and to be paid

according to material type cubic yard unit

cost, rather than by the contract method of

lake dredge percent complete.

Petitioner's Exhibit 6.

C. Involvement of ViaLink, Inc. and Mr. Kilmon in the

Fiddler's Creek Project .

8 . As a result of the foregoing described problem, ACI

hired ViaLink, Inc ., and Mr. Kilmon to provide services

described by Mr. Kilmon, in pertinent part, as follows :

My initial role as Surveyor/Mapper for ACI

was to monit or the mysterious back - filing of

sandy material during the dredging process

after rea ching - 18 NGVD29. I performed

numerous measurements immediately following

the backhoe digging, and recorded depths

reaching the - 18 NGVD29. . . .

My second involvement came several months

later. At this time I was requested by ACI

to perform a survey which captures a

topographic surface ( less the hydrographic

surfaces of the lakes, surveyed by HMA ) in

the form of a digital terrain model (DTM) of

the contracted construct ion limits out to,

and including the bordering lands matching

to existing conditions beyond the ACI

construction site limit for that moment in

time. . . .

My third and next involvement on this

project site came when ACI informed me that

their informal ne gotiations with 951 felt

[sic] through at trying to convey the

understanding of the amount of material

already placed onsite exceeding the

contracted and design intended volume for

the ACI construction site limits. . . . I

was asked by ACI to contact HM A d irectly to

compare my "ViaLin k" DTM topographic surface

. . . to the HMA DTM surfaces maintained on

their computer systems . . . .

From this point on legal counsel for both

sides took over the control for resolution

between ACI vs. 951, which sent everyon e

into court. . . .

Petitioner's Exhibit 6.

9 . Ultimately, the parties turned to the courts to resolve

their dispute. During this litigation process, Mr. Kilmon

prepared what he titled a "Specific Purpose Survey Surveyor's

Report" (hereinafter referred to as the "Surveyor's Report").

Petitioner's Exhibit 4 . The Surveyor's Report was prepared in

response to a subpoena from counsel for 951 and had to be

prepared quickly:

MR. KILMON: Because it was an

evolutionary process -- ever since we were

first h ired to go and work on the site, the

Judge said, "Wrap it up." That was exactly

what he said, "Wrap it up," and he said

"Wrap it up" because the other counsel on

the other side was seeing that this

evolution here of survey work was actually

producing some thing, that I was actually

able to recreate this [Digital Terrain

Model] that they were hiding. I was

actually able to come up with it again and

actually produce a number. They cut it, and

they go the Judge to say, "Okay, let's

produce what he has, let's see what he has"

My client said, "Please, you've got to say

something. They've drawn a line in the sand

and we're not allowed to cross it anymore.

We have to come up with something. "

. . . .

MR. KILMON: That was the first piece I

gave them becau se of that subpoena, and that

was the May 30 disk. . . . And then I ended

up submitting the final version of it that I

ran out of time with, and well, here you go,

it's the last version. So I complied is all

I did. I complied. . . .

Transcript, Vol. II , Page 215, Lines 15 - 25, Page 216,

Lines 1 - 4, and Page 217, Lines 6 - 12.

D. The Surveyor's Report .

10. The Surveyor's Report, dated July 10, 2002, and

addressed to the president and CEO of ACI, states that it

involves "Professional Forensic Surveying & Ma pping Services;

Earthwork Analysis" for the Fiddler's Creek Project.

11 . The Surveyor's Report contains the following "Mission

Statement":

Develop a stratum within a Digital Terrain

Model (DTM) having two (2) surfaces for

comparison; (a) compile an existi ng

conditions surface (Surface 2[SRF2])

observed and recorded by Hole, Montes &

Associates, Inc. (HMA) and their sub -

consultants at the time Atlantic Civil, Inc.

(ACI) began construction, and (b) compile a

final surface (Surface 3 [Srf3]) observed

hydrogra phically by HMA and topographically

by ViaLink, Inc (ViaLink) at the time the

ACI was terminated, less any areas even

partially filled by others, though completed

by ACI.

Perform a calculation within the DTM which

determines the amount of "FILL" material

placed on the Fiddler's Creek, Phase 2A,

Stage l (the "Site") by Atlantic Civil, Inc.

between Srf2 and Srf 3. Methods of volume

calculations include "Average End Area" by

con t ract, and "Prismoidal" in support as a

backup check calculation in verification.

12 . The Surveyor's Report also lists the dat a relied upon

by Mr. Kilmon, many of the rules that govern the practice of

surveyors and mappers, and information concerning the

calculation of the amount of fill removed by ACI in its efforts

to excavate the lakes made by Mr. Kilmon. The Surveyor's Report

also include d a compact disc (hereinafter referred to as the

"CD"), which contained "AutoCAD drawing files depicting a

D igital T errain M odel ( 'DTM' ) ." The Digital Terrain Model

(hereinafter referred to as t he "DTM"), a digital representation

of data , is, according to the Department, a "map." Petitioner's

Exhibit 5. The CD contained "AutoCAD drawing files depicting a

Digital Terrain Model (DTM)." A printed depiction of the

Digital Terrain Model (hereinafte r referred to as the "DTM"),

contained on the CD was printed and admitted in evidence.

13 . It was never Mr. Kilmon's intention to prepare a

"quantity survey" as those terms are defined in Florida

Administrative Code Rule 61G17 - 6.002(8)(h) , or provide a "m ap"

with his report. As to the type of report he intended to issue,

Mr. Kilmon testified, in part, as follows :

I was left with a partial, if you will,

quantity survey, and it's uncertified data,

and I didn't want anyone to take off with an

assumption, by just reading the title of my

report, that there was some sort of real

quantity surveying going on here. That’s

why you have a specific purpose survey is

when you have things that are really out of

whack from what's normal for a survey type,

slowing everyt hing down. Making people take

a look at the title, specific purpose

survey, was my judgment call. I wanted to

make everybody, including the public, know

that right off the top of the bat, you're

not going to see this as a quantity. You're

going to have to break it down and

understand what the data is that made the

number.

Transcript, Vol. II, Page 220, Lines 16 - 25, and

Page 221, Lines 1 - 5.

14 . Mr. Kilmon recognized that to issuing a quantity

survey or map was not appropriate for two reasons:

a. First, some of the dat a he had available to him was

unverified data from Holes Montes; and

b. Second , he did not have all of the data necessary to

complete an accurate quantity survey.

15 . As Mr. Kilmon further explained his intention during

his testimony at h earing , agreeing "in part" with a question as

to whether he had concluded that a quantity survey was not

appropriate because of inappropriate dat a he had :

. . . . The other part is that the end -

all answer of what would be the quantity on

that surface, b ecause we didn't have enough

data, not just uncertified, but we didn't

have enough data to tell where every bit of

fill was on that surface. There is no way

to know that the end - all number would be.

It's simply, as I put in my certification,

the best - kno wn number, and the reason is

because we're just trying to determine

whether or not it's in the 700, 600, a

thousand cubit yard range, or are we talking

about the 400,000 cubic yard range that the

contractor got paid for. Is it worth

another look at reeval uating with better

cooperation from the other surveyor to get

certified data and maybe look at their

actual DTM, you know, to get to the bottom

of this?

Transcript, Vol. II, Page 218, Lines 22 - 25 and

Page 219, Lines 1 - 12.

16 . In addition to styling his r eport as a "Specific

Purpose Survey Surveyor's Report , " rather than a quantity

survey, Mr. Kilmon warned the reader of the uncertainty of some

of the dat a he had relied upon. On page 14 of the Surveyor's

Report, under the heading "Reviewed Survey Data" he identifies

the following "Surveyor's and Mappers providing surveying data

for review " (see also, page 1) :

(1) Hole Montes & Associates, Inc. ( HMA ),

. . .as t he surveying and mapping consultant

or agent to the Fiddler's Creek Developer

( FCD ), including ae rial photogrammetry sub -

consultants employed, though their

iden ti ties are not disclosed.

(2) ViaLink, Inc. ( ViaLink ) . . . as the

surveyor and mapping consultant to ACI.

On January 24, 2001 the undersigned Surveyor

and Mapper formally made a request of HMA

and the FCD through ACI for a copy of

specific survey instruments, in digital and

hardcopy formats, to expedite the review of

the Fiddler's Creek Ste, as identified

above. To date no sign ed and sealed, or

certified fiel d notes, survey maps,

sketches, or surveyor's reports, of any kind

have been provided for evaluation. Further,

HMA and the FCD insist all survey related

information available from there [sic]file

has been proffered for review. While

originally requested of HMA and the FCD

certain forms of helpful raw and finished

survey product(s) developed by HMA (and/or

it [sic] sub - consultants) and the FCD have

if [sic] fact been withheld from this

review. Examples being lawfully prepared

certified plats of public record, their

respective certified boundary surveys, and

control surveys signed and sealed. Other

examples of withheld survey information

include all controlled aerial photogrammetry

products observed at the time ACI was

terminated.

Certified survey data contained in the

attached DTM to d ate is limited to that

portion of information provide d by this

firm, ViaLink, Inc. All other survey data

provided for this DTM review is NOT

certified, and does not meet the Minimum

Technical Standards (MTS) of Chapter 61G17 - 6

of the Florida Administrativ e Code as

required by Florida Law. The lack of

certification does not invalidate the

accuracy of the survey data, just its

backing . (Emphasis added) .

17 . The Surveyor's Report, page 14, goes on to advise that

there are "three(3) surf aces" contained wit hin the CD's DTM and

warns the following with regard to "Surface No. 1": "Surface

No. 1 ( Srf1 ) being simply the " Contract Surface" reportedly

created by a mystery aerial photogrammetrist developing

planimetrics and derived three - dimensional spot elevation s as a

sub - consultant to HMA in and about a Fiddler's C reek pre -

construction Site. . . ."

18 . Beginning at the bottom of page 14 and continuing on

to page 15, the Surveyor's Report describes where more specific

data concerning all three surfaces was obtai ned, the accuracy or

lack thereof of the data, and whether the data is certified.

Much of the dat a listed is acknowledged to be of "unknown"

accuracy and to lack certification.

19 . Finally, on pages 25 and 26, under the heading

"Surveyor's & Mapper Notes ," Mr. Kilmon noted the following

concerning the inadequacy of data used in the report :

4.) This SPECIFIC PURPOSE SURVEY & MAP

SURVEYOR'S REPORT is the direct result of

geometric calculation, in large part due to

the availability of qualified data provid ed

by others, but without any certification of

the responsible surveyor and mapper.

. . . .

8.) Under Florida Law, this firm, ViaLink,

Inc., and the undersigned Surveyor & Mapper

can not certify survey information provided

by others when the survey is not conducted

under the direct supervision of the

undersigned Surveyor & Mapper. Therefore

this firm, ViaLink, Inc., and the

undersigned Surveyor & Mapper will not

assuming [sic] any liability; for

information provided by others used in this

SPECIFIC PURP OSE SURVEY for Earthwork

Analysis.

20 . Mr. Kilmon goes on to make the following ultimate

findings in the Surveyor's Report:

10.) It is this undersigned Surveyor &

Mapper's certain opinion that the earthwork

calculation which determined a FILL quantity

o f 688,080 cubic yards of material reflects

an extremely conservative volume of material

placed onsite by ACI for the area known as

Phase 2A, Stage 1. Additionally, extreme

measures have been taken to exclude any and

all areas of Srf3 were even in part FIL L was

placed by others. These pocketed areas of

partial FILL formerly reflected within SRF3

have been extensively sought out and totally

removed by ACI personnel having direct

personal knowledge of the site prior to any

construction by ACI. Aerial photog raphy

taken by Aerophoto, Inc., on 07/15/1999

independently supports these efforts

depicting the same identified regions of

partial FILL. The result of this additional

effort to meet and/or exceed the Mission

Statement of this Surveyor's Report now

actual ly benefits the FCD. Omitted

partially filled regions by ACI and others

are now not claimed by ACI in any way, but

are instead 100% credited to the FCD.

11.) It is the undersigned Surveyor &

Mapper's certain opinion that HMA conducted

its surveying prac tices with the positive

intension to reflect the actual conditions

of Fiddler's Creek, Phas e 2A, State 1

topographic and hydrographic surfaces, as no

evidence was found to the contrary.

12.) The Average End Area computed total

FILL quantity of 688,080 re presents FILL to

form higher uplands regions and placed in

lakes, and may contain a variety of earth

materials from rock to sand.

21 . On the last page of the Surveyor's Report is the

following note:

Not Valid without the signature and the

original raised seal of a Florida licensed

surveyor and mapper. Further this

Surveyor's Report is not valid without the

original CD - ROM displaying the original

signature of this same undersigned Surveyor

& Mapper.

As noted, supra , a CD was provided by Mr. Kilmon with t he

Surveyor's Report.

2 2 . The DTM contains a large "N" with an arrow at the

bottom. Under this symbol is the following identifying

information:

Specific Purpose Survey

Fiddler's Creek, Phase 2A, Stage 1

(NAD 83/99 FL E. 901 & NGVD 29)

23 . Mr. Kilmon di d not intend for the DTM to be a "map."

Toward this end, he notes the following in the Surveyor's Report

on page 26 under the heading "Surveyor's & Mapper Notes": "This

is NOT a BOUNDARY SURVEY."

24 . Consistent with his intent to only prepare a "report"

and not a "report and map", Mr. Kilmon consistently refers to

the Surveyor's Report throughout the report (except for what

appears to be typographical error), as a "Specific Purpose

Sur vey & Map Surveyor's Report." He does not refer to the

report as a "S pecific Purpose Survey and Map."

25 . To the extent that it is considered a "map," the DTM

does not contain the information required by Florida

Administrative Code Rule 61G17 - 6.003 alleged to be missing in

the Amended Administrative Complaint.

26 . Mr. Kil mon signed and sealed the Surveyor's Report

under the following "Surveyor's Certification:"

THIS IS TO CERTIFY that this SPECIFIC

PURPOSE SURVEY & MAP SURVEYOR'S REPORT is

the result of compiled topographic and

hydrographic data in part provided by others

for the limited purpose of calculating best

known "FILL" quantities as mentioned in the

Mission Statement herein. I FURTHER CERTIFY

that this SPECIFIC PURPOSE SURVEY & MAP

SURVEYOR'S REPORT meets or exceeds the

evaluation, analysis, and result finding

acc uracies established by the Minimum

Technical Standards as set forth by the

Florida Board of Surveyors and Mappers in

Chapter 61G17 - 6.0052, Florida Administrative

Code, pursuant to Chapter 472.027 of the

Florida Statutes.

E. Summary Findings .

27. The ult imate issues of fact in this case are whether

the Surveyor's Report constitutes a "quantity survey" and

whether the DTM is a "Map." Credible expert witnesses for the

Department and Mr. Kilmon gave inconsistent testimony on these

issues.

28. Ultimately, a s to the first question, whether the

Surveyor's Report constitutes a "quantity survey," the testimony

of the Department's expert witnesses was more convincing. It is

concluded that the Surveyor's Report, regardless of what Mr.

Kilmon named it, is a quanti ty survey, which is defined in

Florida Administrative Code Rule 61G17 - 6.002(8)(h) and (j), as

"a survey to obtain measurements of quantity." The Surveyor's

Report comes within this definition:

a. First, the Surveyor's Report is a "survey", which is

defin ed in Florida Administrative Code Rule 61G17 - 6.003(8) as

"the orderly process of determining facts of size, shape,

identity, geodetic location, or legal location by viewing and

applying direct measurement of features on or nea r the earth's

surface using fi el d or imag e methods . . . ."; and

b . Second , the survey, by admission of Mr. Kilmon at

hearing and on the face of the Surveyor's Report , was intended

to obtain and report a measurement of quantity even if only a

rough estimate thereof. While Mr. Kilmon d id qualify his

calculations and openly disclosed the shortcomings of the data

relied upon, the bottom line is Mr. Kilmon concluded that "[ i ] t

is this undersigned Surveyor & Mapper's certain opinion that the

earthwork calculation which determined a FILL qua ntity of

688,080 cubic yards of material reflects an extremely

conservative volume of material placed onsite by ACI for the

area known as Phase 2A, Stage 1."

29. The second issue, as to the proper characterization of

the DTM, is more difficult to resolve. The Department's experts

unequivocally characterized the DTM as a map. Mr. Kilmon's

expert testimony emphasized the issue of whether a map was

required rather than whether the DTM was a map.

30. While it seems that the DTM is nothing more than a

depict ion of data during an intermediate step in the process of

manipulating that data, it would not be reasonable to reject the

testimony of the Department's experts. It is, therefore, found

that the DTM is a map. The Department's witnesses did not,

however, prove clearly and convincingly that the DTM is the type

of map for which the information specified in Florida

Administrative Code Rule 61G17 - 6.003 is required. Mr. Kilmon's

expert, on the other hand, testified convincingly that the DTM

is not a map to whi ch the standards and requirements of Florida

Administrative Code Rule 61G17 - 6.003(3) apply.

CONCLUSIONS OF LAW

A. Jurisdiction .

31 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties the reto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2006).

B. The Burden and Standard of Proof .

32 . In the Administrative Complaint, the Department seeks

to impose penalties against Mr. Kilmon , including suspension or

revocation of his lic ense and/or the imposition of an

administrative fine. The Department, therefore, has the burden

of proving the allegations of the Amended Administrative

Complaint by clear and convincing evidence. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Nair v.

Department of Business & Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995).

33 . In Evans Packing Co . v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court defined "clear and convincing evidence" as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

C. The Charge s Against Mr. Kilmon .

34 . Section 47 2.033 , Florida St atutes, provides that

disciplinary action may be taken against the license of a

surveyor and mapper if it is found that the licensee has

committed certain enumerated offenses. In this matter, it has

been alleged that Mr. Kilmon committed the offense s desc ribed in

Section 47 2.033 (1)( g) and (h ), Florida Statutes, which provide s :

(g) Upon proof that the licensee is

guilty of fraud or deceit, or of negligence,

incompetency, or misconduct, in the practice

of surveying and mapping;

( h ) Failing to perform any statutory or

legal obligation placed upon a licensed

surveyor and mapper; violating any provision

of this chapter, a rule of the board or

department, or a lawful order of the board

or department previously entered in a

disciplinary hearing; or failing to comply

with a lawfully issued subpoena of the

department;

35 . As to the alleged violation of Section 472.033(1)(h),

Florida Statutes, it h as been alleged that Mr. Kilmon violated

19 provision s found in the "Minimum Technical Standards" of

Florida Admi nistrative Code Ru les 61G17 - 6.003 and 61G17 - 6.004 .

These alleged violations fall into three general categories:

the type of report issued (Count IV) ; the adequacy of the data

relied upon in the report (Counts I, II, and III) ; and the

adequacy of the DTM (Counts V through XIX) .

36 . Being penal in nature, Section 47 2.033 , Florida

Statutes, “must be construed strictly, in favor of the one

against whom the penalty would be imposed.” Munch v. Department

of Professional Regulation, Div. of Real Estate , 592 So . 2d

1136, 1143 (Fla. 1st DCA 1992).

D . Count XX; Section 472.033(1)(g), Florida Statutes .

37 . Given Mr. Kilmon's explanation as to what his

intentions were in issuing the Surveyor's Report, it is found

that the evidence failed to prove clearly and convi ncingly that

his conduct was fraudulent, deceitful, negligent, incompetent or

constituted misconduct in the practice of surveying and mapping.

38 . Mr. Kilmon was not shown to be guilty of, as suggested

in Petitioner's Proposed Recommended Order, "disregar ding the

minimum technical standards applicable to licensed surveyors and

mappers." At most, Mr. Kilmon may have misapplied the minimum

technical standards, but he did not disregard them.

E. Count IV; Adequacy of th e Type of Report Elected By

Mr. Kilmon .

39 . In Count IV, it is alleged that Mr. Kilmon violated

Florida Administrative Code Rule 61G17 - 6.003(3)(b) "by failing

to state the type of survey the report depicts consistent with

the types of surveys defined in Rule 61G17 - 6.002(10)(a) - (k),

Florida Adm inistrative Code. "

40 . Florida Administrative Code Rule 61G17 - 6.003(3)(b)

provides:

Each survey map and report shall state the

type of survey it depicts consistent with

the types of surveys defined in Rule 61G17 -

6.002(8)(a) - (k), F.A.C. The purpose of the

survey, as set out in Rule 61G17 -

6.002(8)(a) - (l), F.A.C. [sic] , dictates the

type of survey to be performed and depicted,

and a licensee may not avoid the minimum

standards required by rule of a particular

survey type merely by changing the name of

the su rvey type to conform with what

standards or lack of them the licensee

chooses to follow.

41 . Relevant to this case, are the two types of surveys

authorized in Florida Administrative Code Rule 61G17 - 6.002(8) (h)

and (j):

(h) Quantity Survey: a survey t o obtain

measurements of quantity.

. . . .

(j) Specific or Special Purpose Survey:

a survey performed for a purpose other than

the purposes detailed in (8)(a) - (j) or (k)

of this rule.

42 . The evidence proved clearly and convincingly that the

Surv eyor's Report was "a survey to obtain measurements of

quantity " :

a. First, the Surveyor's Report was clearly proved to be a

"survey", within the definition of Florida Administrative Code

Rule 61G17 - 6.003(8) ; and

b . Second , the Surveyor's Report was used to obtain a

measurement of quantity even if only a rough estimate thereof .

43 . While Mr. Kilmon clearly attempted to avoid the

characterization by any reader of the Surveyor's Report as a

quantity survey, his reliance upon Florida Administrative Code

Rule 61G17 - 6.0052 to call it a "Specific or Special Purpose

Survey" was not consistent with the intent of the rules. That

type of survey is only available where one of the other types of

surveys are not being performed.

44 . Florida Administrat ive Code Rule 6 1G17 - 6.0052, while

allow ing a surveyor and mapper to issue a report not listed in

Florida Administrative Code 61G17 - 6.002(8)(a) - (j) or (k) , does

so only if th e types of surveys , including a quantity survey,

listed in those portions of the rules are "imposs ible" to

perform :

Surveys which are performed for a purpose

other than the purposes encompassed by the

definitions in Rule 61G17 - 6.002(8)(a) - (j) or

(k), F.A.C., shall be permitted only where

unusual conditions make impracticable or

impossible the performan ce of one of the

types of surveys defined in Rule 61 G17 -

6.008(a) - (j) or (k), F.A.C. Such purposes

and conditions shall be clearly shown upon

the survey map or in the survey report.

45 . While it is true that the unusual circumstances of

this matter may h ave caused Mr. Kilmon to conclude that it was

not possible to prepare an accurate quantity survey, those

circumstances did not justify his conducting a quantity survey

and then calling it something else. Had Mr. Kilmon not made any

calculation of quantity , then a special or specific purpose

survey might have been appropriate. The evidence, however,

proved that a calculation of quantity was made. Just because

the calculation of quantity was not as reliable as Mr. Kilmon

should have realized is required wh en a surveyor and mapper

place their seal and signature to a report, does not mean he did

not measure a quantity requiring a quantity report.

46 . While the evidence proved clearly and convincingly

that Mr. Kilmon violated Section 472.0331(1)(h), Florida

S tatutes, by violating Florida Administrative Code Rule 61G17 -

6.003(3)(b), it was also clearly and convincingly proved that

Mr. Kilmon attempted in good faith to comply with his

understanding of the rules governing his report; he believed

that, by disclosin g as precisely as he could the shortcomings of

the data he had available and the limitations on his task, his

Surveyor's Report would be consistent with the minimum technical

standards.

F. Counts I through III; Adequacy of the Data .

47 . In Count s I throu gh III, it is alleged that Mr. Kilmon

violated Florida Administrative Code Rule 61G17 - 6.003(1) "by

failing to assume responsibility for certain data provided by

others, which Respondent did not verify, but nevertheless used

in preparing the survey" (Count I); Florida Administrative Code

Rule 61G17 - 6.003(1)(a) "by failing to meet the assuracy standard

required by this rule, since some calculations were between a

surveyed, verified surface and an unverified surface" (Count

II); and Florida Administrative Code Rule 61G17 - 6.003(3)(a) "by

failing to create a reliable survey, given that Respondent

disclaims responsibility for data provided by others, yet bases

his calculations on this same data" (Count III).

48 . Florida Administrative Code Rule 61G17 - 6.003(1) and

(3)(a), provide, in pertinent part:

(1) Survey and Map Accuracy

(a) REGULATIONAL OBJECTIVE: The public

must be able to rely on the accuracy of

measurements and maps produced by a surveyor

and mapper. In meeting this objective,

surveyors and mappers must achieve the

following minimum standards of accuracy,

completeness, and quality:

(b) The accuracy of the survey

measurements shall be premised upon the type

of survey and the expected use of the survey

and map. All measurements must be in

accorda nce with the United States standard,

using either feet or meters. Records of

these measurements shall be maintained for

each survey by either the individual

surveyor and mapper or the surveying and

mapping business entity. Measurement and

computation rec ords must be dated and must

contain sufficient data to substantiate the

survey map and insure that the accuracy

portion of thes e standards has been met.

. . . .

(3) Other Standards and/or Requirements

that Apply to All Surveys, Maps, and/or

Survey P roducts:

(a) In order to avoid misuse of a survey

and map, the surveyor and mapper must

adequately communicate the survey results to

the public through a map, report, or report

with an attached map. Any survey map or

report must identify the responsib le

surveyor and mapper and contain standard

content. . . .

49 . While the evidence proved that not all data relied

upon in the Surveyor's Repost was reliable because it was not

certified or had not been verified by Mr. Kilmon, Mr. Kilmon

thoroughly disclo sed the type of data relied upon and the

shortcomings of that data. He also adequately described the

limited purposes of the task he was performing (coming up with a

rough estimate of fill) and put the public on notice of the

shortcomings of that estimate .

50 . Because of the disclosures contained in the Surveyor's

Report, it is concluded that the public was informed that the

calculations were only being performed for a preliminary and

limited purpose and the extent to which the data relied upon was

reliab le or, more importantly, unreliable.

51 . It is also concluded that, given the "type of survey

and the expected use of the survey" as disclosed in the

Surveyor's Report, the accuracy of the survey measurements is

adequately premised.

52 . Finally, given th e full disclosure of the Surveyor's

Report, Mr. Kilmon " adequately communicate [d] the survey results

to the public through a . . . report . . . ."

53 . Based upon the foregoing, it is concluded that the

Department did not prove cl early and convincingly tha t

Mr. Kilmon committed the violations alleged in Counts I through

III.

G. Counts V through XIX; The DTM/Map .

54 . In Counts V through XIX, it is alleged that Mr. Kilmon

violated Florida Administrative Code Rules 61G17 - 6.003(3)(c)

(Count V), 61G17 - 6.003(3 )(d) (Count VI), 61G17 - 6.003(3)(e)

(Count VII), 61G17 - 6.003(3)(k) (Count VIII), 61G17 - 6.003(o)2.

(Count IX), 61G17 - 6.004(12)(a) (Count X), 61G17 - 6.003(3)(j)

(Count XI), 61G17 - 6.003(3)(l) (Count XII), 61G17 - 6.004(2)(a)8.a.

(Count XIII), 61G17 - 6.004(2)(a)8.c . (Count XI V ), 61G17 -

6.004(2)(b)3.d. (Count XV), 61G17 - 6.004(2)(b)4. (Count XVI),

61G17 - 6.004(2)(c)3. (Count XVII), 61G17 - 6.004(2)(c)4. (Count

XVIII), and 61G17 - 6.004(2)(d)4. (Count XIX). All of these

provisions provide requirements concerning what must b e

contained on any surveyor's map.

55 . There is no dispute that the information required in

the rule provision cited in Counts V through XIX to be contained

on a surveyor's map was not conta ined on the DTM prepared by

Mr. Kilmon .

5 6 . At first blush, it w ould appear that t he only real

issue is whether Mr. Kilmon, by including the DTM with the

Surveyor's Report and his minimal references thereto, has

unintentionally included a map. Looking only at the DTM, either

electronically on the CD or the print - out o f the information

contained in the CD, an i ndividual could easily conclude that

the DTM is indeed a map. Given the essentially unrebutted

testimony of the Department's experts, it has been fou nd that

the DTM is indeed a map.

57. The foregoing conclusions and findings do not,

however, resolve the issue in this case. Still to be resolved

is the question of whether Mr. Kilmon's "map" is the type for

which the specific information specified in Florida

Administrative Code Rule 61G17 - 6.003 is required.

58. Wh ile Florida Administrative Code Rule 61G17 - 6.003(3)

is titled "[o]ther Standards and/or Requirements that Apply to

All Surveys, Maps, and/or Survey Products" the specific

requirements listed thereafter at issue in this case are only

required for a "survey map." The terms "survey map" are defined

in Florida Administrative Code Rule 61G17 - 6.002(4):

Ma p o f Survey ( or Survey Map): a

graphical or digital depiction of the facts

of size, shape, identify, geodetic location,

or legal location determined by a sur vey .

The term "Map of Survey" (Survey Map)

includes the terms: Sketch of Survey, Plat

of Survey, or other similar titles. "Map of

Survey" or "Survey Map" may also be referred

to as "a map" or "the map." (Emphasis

added) .

5 9 . While the Department's ex pert witnesses clearly and

convincingly testified that the DTM is a map, they did not

clearly explain how the map comes within the definition of a

"Map of Survey" or "Survey Map." Mr. Kilmon's expert, on the

other hand, testified convincingly that the DTM is not a map to

which the standards and requirements of Florida Administrative

Code Rule 61G17 - 6.003(3) apply.

60. It is therefore concluded that the Department failed

to prove clearly and convincingly that Mr. Kilmon committed the

violations alleged in Counts V through XIX.

H . The Appropriate Penalty .

61 . Section 472.033(2), Florida Statutes, authorizes the

Board to impose punishment on a licensee for a violation of

Section 472.033(1), Florida Statutes, including revocation or

suspension of a license, the imposition of a fine not to exceed

$1,000.00 for each count or separate offense, a reprimand,

placing a licensee on probation, and restricting the scope of

the licensee's practice. The Department has not cited any rule

establishing guidelines for the imposition of discipline.

61 . The Department in its Proposed Recommended Order has

suggested that Mr. Kilmon be required to pay a fine and that his

license be placed on probation, with several specified

conditions .

62 . Mr. Kilmon fully disclosed what he was attempting to

do ( produce an estimate of fill even though he did not have all

the necessary data ) and he fully disclosed the shortcomings of

the data he used . Therefore, it is recommended that Mr. Kilmon

be given a written reprimand and be required to pay a fine of

$500.00 within 30 days of the entry of the final order .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Board enter a final order finding

that Stephen Phillips Kilmon committed the violat ion described

in this Recommended Order , issuing a written reprimand, and

requiring that he pay a fine of $500.00 within 30 days of the

entry of the final order.

DONE AND ENTERED this 19 th day of July , 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19 th day of July , 2006.

COPIES FURNISHED :

Eric R. Hurst

Charles F. Tunnicliff

Assistants General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Stephen Phillips Kilmon

2010 Northeast 122 Road

North Miami, Florida 33181

Ned Luczyn ski , General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Richard Morrison, Executive Director

Board of Professional Land Surveyors

And Mappers

Department of Bus iness and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.