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

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES, BOARD OF

PROFESSIONAL SURVEYORS AND

MAPPERS,

Petitioner,

vs. Case N o. 15 - 0087PL

WESLEY BRIAN HAAS,

Respondent.

_______________________________/

DEPARTMENT OF AGRICULTURE AND

CONSUMER SERVICES, BOARD OF

PROFESSIONAL SURVEYORS AND

MAPPERS,

Petitioner,

vs. Case No. 15 - 0089

EXACTA LAND SURVEYORS, INC.,

Respondent.

_______________________________/

RECOMMENDED ORDE R

On February 20 , 201 5 , a duly - noticed hearing was held by

video teleconference at locations in West Palm Beach and

Tallahassee , Florida , before F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick Francis Creehan, Esquire

Department of Agriculture and

Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent s : Torben S. Madson, II, Esquire

512 Peterson Avenue South

Post Office Box 1041

Douglas, Georgia 31534

STATEMENT OF THE ISSUE S

Whether Respondents failed to abide by va rious m inimal

t echnical s tandards applicable to the practice of surveying and

mapping, in violation of Florida Administrative Code Rules 5J -

17.051 and 5J - 17.052 , or were guilty of negligence in the

practice of surveying and mapping, all in violation of

sec tion 472.0351, Florida Statutes (2012), 1/ and if so, what

is the appropriate sanction.

PRELIMINARY STATEMENT

On August 24, 2014, Petitioner, Department of Agriculture

and Consumer Services (Petitioner or Department) , filed an

Administrati ve Complaint aga inst M r . Wesley Brian Haas with the

Board of Professional Surveyors and Mappers (Board), alleging

that M r . Haas had not complied with several minimum technical

standards applicable to the practice of surveying. On August

26, 2014, Petitioner filed an Admi nistrative Complaint against

Exacta Land Surveyors , Inc. (Exacta), Mr. Haas ' employer,

alleging identical violations. Respondent s disputed the

allegations and requested a hearing pursuant to section

120.57(1), Florida Statutes. On January 8, 2015, the ca ses w ere

referred to the Division of Administrative Hearings for

assignment of an a dministrative law judge. The case s were

consolidated on January 16, 2015 , and set for final hearing on

February 20, 2015.

At hearing, Petitioner presented the live testimon y of

Mr. Alvin T. Gloer, who was accepted , without objection, as an

expert in surveying and mapping. Exhibits P - 1 through P - 3 were

offered by Petitioner and admitted without objection.

Respondent s ' counsel noted for the record that Mr. Haas asserted

his right to remain silent and would not be present for the

hearing. Respondent s offered Exhibit R - 1, which was admitted

with the caveat that it contained hearsay. The T ranscript was

filed o n March 12, 201 5 . Both parties timely filed p roposed

r ecommended o r ders , which have been c onsidered.

FINDINGS OF FACT

1. The Department is the state entit y charged with

regulating the practice of land surveying and mapping, pursuant

to c hapter 472, Florida Statutes.

2. At all times material to this case, Mr. Haas was

l icensed as a professional surveyor and mapper in the s tate of

Florida, with license number LS3708.

3. Mr. Haas was employed by Exacta , which holds license

number LB7337 .

4 . A complaint was filed with the Department on

January 27, 2014, by Mr. Charles B . Hatcher of Associated

Surveyors, Inc. , alleging numerous m inimum t echnical s tandards

errors on a survey prepared by Mr. Haas on September 25, 2012.

5 . Petitioner has failed to prosecute Mr. Haas or

Exacta for the violations alleged in the c omplaint made by

Mr. Hatcher , on January 2 7 , 2014 .

6 . Administrative c omplaints alleging identical counts

were filed against Mr. Haas and Exacta. Count I alleges that

some of the field data was not dated . Count I also alleges that

the coordinates are not on the same datum as the survey, and

thus , the survey map cannot be substantiated.

7 . Page 12 of Exhibit P - 1, a page of computation notes ,

does not contain the date the information was observed and

collected . Further, i t is clear that page 12 is not simply a

contin uation of pages 10 and 11 (which are two ha l ves of the

same document ) but is instead a separate document that is

undated.

8 . D ata shown in the raw data file and coordinates list

differed from that reflected on the survey map. It appeared ,

however, that the data had been rotated and translated.

Rotation and translation is an accepted survey technique which

allows modern instrumentation to record data based upon an

assumed initial point and bearing, and then calculate all

further points and bearings rela tive to that initial

measurement. Th is information recorded by the instrument must

then be rotated and translated back t o match the actual points

and bearings o n a parcel . The Department failed to show that

the survey map could not be substantiated . As

Mr. Gloer testified during cross examination :

Q. My question is, wasn ' t it clear to you

that the assumed bearing that Mr. Blackmon

made, our party chief, on page 4 in his

instrument - Î in his data collector between

Points 1 and 2 of a bearing of north zero

degrees, or an azimuth of north zero

degrees -- isn ' t it clear to you that then in

order for it to make sense on this drawing

and all the other lines too, that you would

have to rotate that to get on the same

bearing basis? Doesn ' t that jump out to you

as a n expert, having done over 2,000

surveys?

A. At the time two years - Î well, it ' s been a

year. A year ago when I did this original

review, I based it on the data that was

supplied to me. Now that you have explained

it to me and I see that there is a note here

that said they rotated it, yes, it ' s clear

to me now, yes.

9. Count II alleges that the field notes that are dated

show a date of 9/24/12, while the survey drawing shows a field

work date of 9/25/12 .

10 . The parties stipulated as to the different dates shown

on these documents. 2 / The dated field notes show that field work

was performed on September 24, 2012. The clear and convincing

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

2012 , while the date on the survey drawing is Sept ember 25,

2012.

11 . Count III notes that the survey shows a found 3/4 "

iron rod at the point of beginning , notes that this a ppears to

be the same corner shown on the coordinate list as point

number 8 , and states that t he field notes do not show the

settin g or locating of th e corner. The complaint concludes that

t his corner is not supported by accurate survey measurements.

12 . The notation " P.O.B. " is found at the lowest corner of

the property on the survey map , and underneath the corner is

found the no t e " 3/4 FIR N O ID. " According to the Surveyor ' s

Legend found on page 2, this indicates that the point of

beginning is marked by a 3/4 inch found iron rod without

identification, as Mr. Gloer testified. While page 12 shows a

point marked as " set # 8 @ DEED Dist/Dist frm 5 & 152 " on the lot

corner , it indicates this monument was set, and does not

indicate a found iron rod. P oint " 6 " has no notation at all on

page 12 and does not appear to be aligned on the southeast

property line , but point 6 is reflected i n the raw data file and

the coordinates list . The measurements to point 6, and

description of it , are consistent with and support the property

corner marked as the P.O.B. on the survey map.

13 . Count IV alleges that bearings shown on the survey as

measu red are not substantiated by the survey measurements in the

raw data or coordinate list. Mr. Gloer testified that he

inversed the data from the coordinates and that the bearings

were different. However, as he admitted, he did not consider

that the record ed survey measurements might reflect an assumed

initial location and bearing and that th ey would therefore need

to be rotated and translated to substantiate the bearings shown

on the survey map. The Department failed to show by clear and

convincing eviden ce that the bearings shown on the survey were

not substantiated by measurements.

14 . Count V alleges that the three points used to locate

the improvements, monumentation, and control for the survey are

not part of a closed traverse and are not based on re dundant

measurements. As Mr. Gloer testified, the distance between

points 1 and 2 was verified by redundant measurements : once

measuring the distance from point 1 to point 2, and once

measuring the distance from point 2 back to point 1. However ,

the ang le created between points 2, 1, and 150 was not similarly

measured on more than one occasion or from the opposite

direction .

15 . Respondents argue that use of an instrument such as

the r obotic t otal s tation used here, which takes numerous

measurements v ery quickly and then averages th em , is , by

definition , taking redundan t measurements . However, Mr. Gloer

testified that in his expert opinion, " redundant " measurement

has a more specific meaning. It requires that an " independent

check " be made. He noted that if a rodman had the rod on his

toe, all of the measure ments almost instantaneously taken and

averaged by an instrument would reflect the same incorrect

information and so these multiple readings would not serve the

purpose of revealing the mistake an d preventing the error. Only

an independent measure, like shooting the distance backwards,

would likely reveal the error and thus meet the purpose of a

" redundant " measure ment . The angle created between points 2, 1,

and 150 was not verified by redundan t measurements.

16 . Count VI alleges that the survey is based on found

monumentation on the parcel being surveyed. No attempt was

shown to find the p oint of c ommencement or boundary

monumentation along the boundary of Beauclerc Gardens Replat,

both of whi ch are called for in the description.

17 . The legal description provides in part, " commence at

an iron pipe located in the northeasterly line of Section 40,

Township and Range aforementioned, at a point where said line is

intersected by the line dividing Sections 31 and 32. " Mr. Gloer

testified that to ensure that the position of the boundary of

real property was determined in complete accord with th is real

property description, an attempt to find the p oint of

c ommencement and the boundary of Beauclerc Ga rdens R eplat was

required, and that there was no evidence that this was done .

However, no evidence was presented to indicate that the survey

as conducted was not in complete accord with the property

description as attached to the survey map .

18 . Count VI I alleges that the survey does not tie to an

established identifiable real property corner.

1 9. As Mr. Gloer testified, the parcel being surveyed was

described by metes and bounds. Nothing on the survey tied into

any identified corner of Beauclerc Gard ens . The survey did not

tie into a real property corner of either lot 1 or 2 of

Beauclerc Gardens , which were the closest lots . I nstead, the

survey was t ied to a monument on the line south of Beauclerc

Terrace on that right - of - way, identified on page 12 as point

" 151. " That point was not an established identifiable real

property corner of Beauclerc Gardens . As Mr. Gloer testified,

the survey did not tie to an established identifiable real

property corner.

20 . Count VIII alleges that the field notes and raw data

do not show either the fence corner or the water meter that

supposedly made the two nearby corners inaccessible.

21 . The computation notes at p age 12 and th e survey map on

page 1 do not show a monument set at the most easterly corner of

the lot , but they do show an offset point and reasonably

indicate that a water meter is at the corner . Similarly,

neither the computation notes nor survey map show a monument set

at the most westerly corner of the lot, but the survey map shows

an offset monument and has an indication that there is a fence

post at the corner. Mr. Gloer noted that neither the water

meter nor the fence post, if they existed, had been positively

located on the field notes or raw data as being at the corners. 3 /

Mr. Gloer noted tha t the coordinates list indicated that the

location of the water meter was calculated.

22 . Count IX alleges that there is a monument shown in the

field notes, point number 6, but not shown on the survey.

23 . As discussed earlier in connection with Count I II, the

field computation notes appear to show two monuments in fairly

close proximity to the southernmost corner of the property. The

survey map at page 1 shows only one monument at this corner,

labeled " P.O.B. " and described as " 3/4 FIR NO ID " which , as

noted above , refers to a 3/4 inch found iron rod without

identification. This descriptive information appears to

correlate with the side shot of point 6 found on page 6 of the

raw data file and page 9 of the coordinates list. While the

field notes are c onfusing, the Department did not show by clear

and convincing evidence that point number 6 was not shown on the

survey.

24 . Count X alleges that all the monuments were tied by

side shots without a redundancy of the measurements.

25 . The raw data at pag e 4 indicate that the 1/2 inch

found iron pipe and cap marked with " R. Miller , " which is shown

as the easternmost monument on the survey , was located by a side

shot, a single measurement, and that Mr. Blackmon only turned

one angle and one distance to that point. Similarly, the data

at page 5 show that the 1/2 inch found iron pipe with no

identification which is shown as the northernmost monument on

the survey was located by a single side shot. Again, the data

on page 6 show that the 3/4 inch found iron r od without

identification which is shown as the southernmost monument and

point of beginning on the survey was located by a side shot.

The data sheets show no other ties to these points taken from

another position, or otherwise demonstrat e that redundan t

measurements were taken.

26 . Count XI alleges that the survey dated September 25,

2012, was negligently prepared.

27 . On this point, the Transcript re cords :

Q. And then one final question, Mr. Gloer.

In your professional opinion, expert

opinion, do y ou believe that these ten MTS

violations that you have discovered, taken

as a whole constitutes - Î of the minimum

technical standards, taken as a whole,

constitutes negligence in the practice of

surveying and mapping in the State of

Florida?

A. I do.

Th is question and answer, predicated on considering ten other

violations as a whole, offers no insight as to whether a fewer

number of violations might constitute negligence, or whether

some of the violations are s o serious , or are of such a nature,

that t he y might do so even standing alone.

28 . No evidence was introduced at hearing to indicate that

Mr. Haas ' professional license has been previously disciplined.

Exacta was the subject of five earlier a dministrative c omplaints

alleging violations of Minimal Technical Standards, which were

the subject of a Settlement Stipulation . Given the terms of the

stipulation, there is no competent evidence showing that Exacta

committed prior offenses. However, the Corrected Final Order

Approving Settlement Stipulation constitutes prior disciplinary

action against Exacta.

CONCLUSIONS OF LAW

2 9 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding in accordance with sections 472.033, 120.569 , and

120.57(1), Florida Statutes (201 4 ) .

30 . Petitioner seeks to take disciplinary action against

the professional surveyor and mapper license of Respondent Haas

and the business certification of Respondent Exacta . A

proceeding to impose d isciplin e against a professio nal license

is penal in nature , and Petitioner bears the burden to pro ve t he

allegations in the a dministrative c omplaint s by clear and

convincing evidence. Dep ' t of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 5 10 So.

2d 292 (Fla. 1987).

31 . Clear and convincing evidence has been said to

require:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony 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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

est ablished.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), (quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

32 . Section 472.005 provides definitions of terms used in

chapter 472, including, in relevant part:

(3) " S urveyor and mappe r " includes the term

" professional surveyor and mapper " and means

a person who is registered to engage in the

practice of surveying and mapping under ss.

472.001 - 472.037.

* * *

( 12) " L egal entity " means a corporation,

partnership, association, o r person

practicing under a fictitious name who is

certified under s. 472.021.

* * *

(16) " Licensee " means any person or

business entity that has been issued,

pursuant to this chapter, a registration,

certificate, or license by the department.

33 . Section 472.015 (2) provides that the department shall

license any applicant who the board certifies is qualified to

practice surveying and mapping.

34 . Section 4 72.021 (1) provides for the certification of

corporations or partnerships offering surveyi ng and mapping

services to the public.

35 . Under chapter 472, c ertified business entit i es are

licensees , but are not surveyors and mappers.

36 . T he common law doctrines of strict liability,

vicarious liability, and respondeat superior are not applicable

to licensure discipline cases . R ather, the extent of liability

is governed by statute. All Saints Early Learning & Cmty. Care

Ctr., Inc. v. Dep ' t of Child. & Fams. , 145 So. 3d 974, 978 (Fla.

1st DCA 2014).

37 . The statutory language must be examined to determine

the duties imposed on a licensed business entity . Pic N Save

Cent. Fla., Inc. v. Dep ' t of Bus. Reg. , 601 So. 2d 245 (Fla. 5th

DCA 1997)(employee ' s sale of liquor to under - age employee not

attributable to business license in absence of misconduc t

personal to licensee); All Saints Early Learning & Cmty. Care

Ctr., Inc. v. Dep ' t of Child. & Fams. , 145 So. 3d 974, 977 (Fla.

1st DCA 2014)(discipline against child care facility license

appropriate for acts or omissions of employee where statute made

c lear that the facility was responsible for the care,

protection, and supervision of the children).

38 . The case of Federgo Disc ount C enter v. Dep artment of

Prof essional Reg ulation , B oard of Pharmacy , 452 So. 2d 1063

(Fla. 3d DCA 1984) , is instructive. Th e applicable statute

there provided that a community pharmacy permit could be revoked

or suspended for, among other things, violation of " any of the

requirements of this chapter or any of the rules of the Board of

Pharmacy; of chapter 500, known as the ' Fl orida Food, Drug, and

Cosmetic Law ' ; or of chapter 893 . . . . " The court held that

notwithstanding th ese broad references, only those incorporated

provisions which actually applied to community pharmacies as

strictly construed, and not provisions which a pplied to licensed

pharmacists, provided a basis for discipline. See also Evans

Packing Co. v. Dep ' t of Agric. & Consumer Servs . , 550 So. 2d 112

(Fla. 1st DCA 1989)(not necessary to show that business entity

knowing ly violat ed law against sale of adultera ted orange juice

if circumstances support findings that entity either caused the

adulteration or failed to exercise due diligence).

3 9. Section 472.021(5) provides that disciplinary action

against a corporation or partnership shall be administered in

the same manner and on the same grounds as disciplinary action

against a registered surveyor and mapper.

40 . Section 472.0351(1)(h) provides that disciplinary

action may be taken against a licensee for:

Failing to perform a statutory or legal

obligation place d upon a licensed surveyor

and mapper; violating a provision of this

chapter, a rule of the board or department,

or a lawful order of the board or

department; or failing to comply with a

lawfully issued subpoena of the

department ; . . .

41 . The Board of Professional Surveyors and Mappers has

the responsibility to adopt rules establishing minimum technical

standards to ensure the achievement of no less than minimum

degrees of accuracy, completeness, and quality in the practice

of surveying and mapping. §§ 472.008(1), 472.027 , Fla. Stat.

42 . The Board of Professional Surveyors and Mappers has

adopted rule 5J - 17.051, entitled " Minimum Technical Standards:

General Survey, Map, and Report Content Requirements. "

COUNT I

43 . Rule 5J - 17.051(2)(b)3. provides:

M easurement and computation records must be

dated and must contain sufficient data to

substantiate the survey map and insure that

the accuracy portion of these standards has

been met.

44 . In support of Count I, Petitioner showed by clear and

convincing ev idence that page 12, a computation note, was not

dated. Petitioner failed to prove a second allegation in this

c ount by clear and convincing evidence , however, which charged

that the measurement and computation records did not

substantiate the survey map.

45 . Petitioner proved by clear and convincing evidence

that Respondents violated rule 5J - 17.051(2)(b)3.

COUNT I I

46 . Rule 5J - 17.051(3)(b)3. provides:

All survey maps must reflect a survey date,

which is the date of data acquisition. When

the graphics o f a map are revised, but the

survey date stays the same, the map must

list dates for all revisions.

47 . The date of data acquisition was September 24, 2012,

while the date on the survey map was September 25, 2012.

48 . Petitioner proved by clear and con vincing evidence

that Respondents violated rule 5J - 17.051(3)(b)3. However, this

was a minor violation.

COUNT I II

4 9. Rule 5J - 17.051(3)(b)7. provides:

All computed data or plotted features shown

on survey maps must be supported by accurate

survey measurem ents unless clearly stated

otherwise.

50 . In support of Count III, Petitioner showed that

page 12 of the computation notes w as confusing , and some points

were not clearly marked. However, Petitioner ' s conclusion that

the notation " set #8 @ DEED Dist/Dis t frm 5 & 152 " represents

the most southwesterly corner of the property was not proven .

Th e corner is represented in the raw data file , a s well as the

coordinates list , as point 6 , and there are accurate survey

measurements to support the plotting of the southwesterly corner

of the property, denoted as the P.O.B., on the survey map.

51 . Petitioner failed to prove by clear and convincing

evidence that Respondents violated rule 5J - 17.051(3)(b)7.

COUNT I V

52 . Rule 5J - 17.051(3)(b)8. provides:

Bearings, dista nces, coordinates, and

elevations shown on a survey map shall be

substantiated by survey measurements unless

clearly stated otherwise.

53 . The allegation in Count IV that the bearings shown on

the survey were not substantiated by the survey measurements did

not take into account that the measurements might have been made

based upon an assumed initial location and bearing and that they

would therefore need to be rotated and translated to

substantiate the bearings shown on the survey map.

54 . Petitioner failed to prove by clear and convincing

evidence that Respondents violated rule 5J - 17.051(3)(b)8.

COUNT V

55 . Rule 5J - 17.051(3)(b) 15 . b. (II) . provides:

The accuracy of control survey data shall be

verified by redundant measurements or

traverse closures. A ll control measurements

shall achieve the following closures:

Commercial/High Risk Linear: 1 foot in

10,000 feet;

Suburban: Linear: 1 foot in 7,500 feet;

Rural: Linear: 1 foot in 5,000 feet;

56 . With respect to Count V, n o definition of " redundant

measurement " was found in rule or law. While , as Respondent s

argued, the instrument taking the measurements of distance and

angles took several measurements and averaged them , it is

concluded that this alone does not constitute " redundant

measurements " w ithin the meaning of the rule. One definition

of " redundant " is " serving as a duplicate for preventing

failure of an entire system (as a spacecraft) upon failure of

a single component. " Merriam - Webster Online Dictionary,

http://www.merriam - webster.com/d ictionary/redundant . This

definition is consistent with the thrust of Mr. Gloer ' s

testimony. The Board ' s use of the term " redundant measurement "

in the rule is interpreted to require something more than use of

an instrument which averages measurements, b ecause although

multiple readings are taken, they are not capable of revealing

errors in placement of the instrument, as Petitioner contends.

A measurement from another point or different direction , capable

of revealing possible errors in the measurements taken from the

initial siting , is required .

57 . Petitioner proved by clear and convincing evidence

that Respondents violated rule 5J - 17.051(3)(b)15.b. ( II ) .

COUNT VI

58 . The Board has adopted rule 5J - 17.052, entitled

" Minimum Technical Standards: Spe cific Survey, Map, and Report

Requirements. " Rule 5J - 17.052(2)(a)1. provides that with

respect to a boundary survey, map, and report:

The surveyor and mapper shall make a

determination of the position of the

boundary of real property in complete accord

wi th the real property description shown on

or attached to the survey map or report.

5 9. In support of Count VI, Petitioner proved that

Respondents did not tie the found monumentation on the parcel to

either the p oint of c ommencement or the boundary monume ntation

of Beauclerc Gardens. However, the rule Respondents are charged

with violating does not specifically require this . No evidence

was presented to show the boundary determination in the survey

in question was not in " complete accord " with the proper ty

description attached to the survey.

60 . Petitioner failed to prove by clear and convincing

evidence that Respondents violated rule 5J - 17.052(2)(a)1.

COUNT VII

61 . Rule 5J - 17.052(2)(a)8. provides that surveys of

parcels described by metes and bound s shall show the following

upon the map:

a. The relationship of the parcel(s) to at

least one established identifiable real

property corner;

b. All information called for in the

property description, such as point of

commencement, course bearings and di stances,

and point of beginning;

c. A comparison between recorded directions

and distances and field measured directions

and distances on the boundary when they

vary;

d. The most current abutting recorded

instrument or recorded plat either known by

the surveyor and mapper or furnished to the

surveyor and mapper.

62 . In support of Count VII, Petitioner showed that

nothing on the survey " tied into " any established identifiable

real property corner. The survey tied into a monument on the

right of way li ne, not an established identifiable real property

corner.

63 . Petitioner proved by clear and convincing evidence

that Respondents violated rule 5J - 17.052(2)(a)8.

COUNT VIII

64 . Rule 5J - 17.052(2)(b)1. provides in part, with respect

to boundary monument s:

The surveyor and mapper shall set monuments

as defined herein, unless monuments already

exist or cannot be set due to physical

obstructions at such corners or unless a

water boundary has been located in

approximate position.

65 . In support of Count VIII, Petitioner showed that

neither the water meter nor the fence post had been positively

located on the field notes or raw data as being at the corners

and that the coordinates list indicated that the location of the

water meter was calculated. Petitio ners did not show a

violation of th e specific requirement of this rule, however,

which is that monuments shall be set unless they already exist

or cannot be set due to physical obstructions. The survey map

indicates that obstructions - Î a fence post and a w ater meter - Î

exist at the corners of the property. Petitioner offered no

evidence that this was not the case, and so did not show a

violation of the specific requirement of this rule .

66 . Petitioner failed to p rove by clear and convincing

evidence that Re spondents violated rule 5J - 17.052(2)(b)1.

COUNT I X

67 . Rule 5J - 17.052(2)(b)3. provides:

All monuments, found or placed, must be

described on the survey map. The corner

descriptions shall state the size, material,

and cap identification of the monument as

well as whether the monument was found or

set.

68 . In Count IX, Petitioner alleges that point 6 is shown

in the field notes, but not the survey. T his was not shown by

clear and convincing evidence. The survey map at page 1 shows a

monument at th e sout hwest corner of the property , labeled

" P.O.B. " and described as " 3/4 FIR NO ID " which correlates with

the side shot of point 6 found on page 6 of the raw data file

and page 9 of the coordinates list. Under these circumstances,

Mr. Gloer ' s correct observat ion that two monuments are shown in

this vicinity on the field notes, but only one is plotted, is

not sufficient t o prove that point 6 was not plotted on the

survey map . 4 /

6 9. Petitioner failed to prove by clear and convincing

evidence that Respondents vi olated rule 5J - 17.052(2)(b)3.

COUNT X

70 . Rule 5J - 17.052(2)(b)7. provides:

Side ties to locate or set monuments shall

be substantiated by a redundancy of

measurements.

71 . Count X alleges that all of the monuments were tied by

side shots without a redun dancy of measurements. Respondent s

maintain that side shots made with a robotic total station are

automatically redundant. Consistent with the conclusion as to

Count V above, this contention is rejected.

72 . Petitioner proved by clear and convincing ev idence

that Respondents violated rule 5J - 17.052(2) (b)7.

COUNT XI

73 . Section 472.0351(1)(g) provides:

(1) The following acts constitute grounds

for which the disciplinary actions specified

in subsection (2) may be taken:

* * *

(g) Upon proof that the licensee is guilty

of fraud or deceit, or of negligence,

incompetency, or misconduct, in the prac tice

of surveying and mapping ; . . .

74 . Count XI alleges that Respondents negligently prepared

the survey. The date " record - keeping " violations of Counts I

and II are very minor in nature. The violation of Count VII,

failure to tie the survey to an es tablished real property corner

is more serious, but there is no evidence to suggest that in

fact any of the boundary determinations themselves are not

correct . Finally, the remaining two violations, Count V and

Count X, do not appear to constitute neglige nce, but rather

reflect a misunderstanding of the rule requirement for redundant

measurements. Considered as a whole, the violations do not cast

doubt on the measurements taken, the calculations made, or the

basic accuracy of the survey. While Respondent s need to pay

more attention to m inimum t echnical r equirements, the evidence

does not show by clear and convincing evidence that Respondents

are guilty of negligence in the practice of surveying.

75 . Petitioner failed to prove by clear and convincing

evid ence that Respondents violated section 472.0351(1)(g).

76 . After its listing of grounds of discipline,

section 472.0351 also sets forth possible penalties which may be

imposed by the Board, including, among others : imposition of

fines ; suspension of a li cense; probation; and revocation of a

license .

77 . Section 472.0351(4)(a) goes on to provide : " In

addition to any other discipline imposed pursuant to this

section, the board may assess costs and attorney fees related to

the investigation and prosecutio n of the case. " (Emphasis

added.)

78 . S ection 472.0355, entitled Disciplinary Guidelines,

provides in part :

( 1) The board by rule shall adopt and

periodically review the disciplinary

guidelines applicable to each ground for

disciplinary action which may be imposed by

the board pursuant to this chapter and any

rule of the board or department.

7 9 . The Board has established d isciplinary g uidelines

in rule 5J - 17.011 (2) , which provides in pertinent part:

(h) Failing to perform any statutory or

legal oblig ation 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 is sued subpoena of the

department; (Section 472.0351(1)(h), F.S.)

MINIMUM MAXIMUM

FIRST OFFENSE $250 fine, probation, and $500 fine and probation or

compliance with legal obligation suspension until compliance

with legal obligation

SECOND $500 fi ne and probation or $750 fine and probation or

OFFENSE suspension until compliance with suspension until compliance

legal obligation with legal obligation plus

extended probation

THIRD OFFENSE $750 fine and probation or $1000 fine and revocation

suspension until compliance with

legal o bligation plus extended

probation

80 . While rule 5J - 17.011 contains some general

language outside of th is table , such as the provision that

" penalties set forth in the guidelines include lesser

penalties, i.e., reprimand and or course work " which may be

included in the final penalty , it contains no reference to

costs or attorneys ' fees.

81 . Section 472.0355(3) provide s that the board shall

adopt by rule disciplinary guidelines to designate possible

mitigating and aggravating c ircumstances and the variation

and range of penalties permitted for such circumstances .

82 . The Board has adopted rule 5J - 17.011(4) , which

provides in part :

The Board shall consider as mitigating or

aggravating circumstances the following:

(a) The degre e of harm to the consumer or

public;

(b) The number of counts in the

administrative complaint;

(c) The disciplinary history of the

applicant or licensee;

(d) The status of the applicant or licensee

at the time the offense was committed;

(e) The deg ree of financial hardship

incurred by a licensee as a result of the

imposition of the fines or suspension of his

practice;

(f) The length of time the licensee has

practiced;

(g) The deterrent effect of the discipline

imposed;

(h) Any efforts at rehab ilitation;

(i) Actual knowledge of the licensee

pertaining to the violation; and

(j) Any other mitigating or aggravating

circumstances.

83 . Although the violation of Counts I and II were minor

in nature, none of the aggravating or mitigating circumst ances

delineated in the rule are present here to the extent necessary

to warrant deviation from the range of penalties already

permitted within the guidelines with respect to Respondent Haas.

84 . With respect to Respondent Exacta, however, its prior

disci plin ary history is considered as an aggravating factor

under rule 5J - 17.011(4)(c) , justifying an enhanced fine. 5 /

Kaplan v. Dep ' t of Health , 8 So. 3d 391, 393 (Fla. 5th DCA

2009) .

RECOMMENDATION

Upon consideration of the foregoing Findings of Fact and

C onclusions of Law, it is RECOMMENDED that a final order be

entered by t he Department of Agriculture and Consumer Services,

Board of Professional Surveyors and Mappers :

F indin g Wesley Brian Haas and Exacta Land Surveyors, Inc. ,

in violation of section 742. 0351 (1) (h), Florida Statutes, for

failing to conduct surveying and map p ing in accordance with

the m inimum t echnical s tandards prescribed by Florida

Administrative Code Rules 5J - 17.051(2)(b)3., 5J - 17.051(3)(b)3.,

5J - 17.051(3)(b)15.b. ( II ) , 5J - 17.052(2)(a)8., and 5J -

17.052(2)(b)7. ; i mposing an administrative fine of $ 1500 .00 on

Wesley Brian Haas ; and imposing an administrative fine of

$ 4 000.00 on Exacta Land Surveyors, Inc.

DONE AND ENTERED this 14th day of April , 2015 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of April , 2015 .

ENDNOTES

1/ Except as otherwise indicated, r eferences to statutes and

rules are to versions in effect in September 201 2 , the time the

survey in question was perform ed.

2 / Respondent s ' Unilateral Pre - Hearing Admissions to Facts and

Law, List of Exhibits and Witnesses stated:

That as stated in paragraph five (5)(b) of

Petitioner ' s Administrative Complaint:

" A review of Respondent ' s Survey in

question, using the Min imum Technical

Standards ( " MTS " ) in force at that time

pursuant to Florida Administrative Code

Chapter 5J - 17,

showed the following:

b. Noncompliance with Rule 5J -

1 7.051(3)(b)3., in that the field notes

that are dated show a date of 9/24/12,

[while] the su rvey drawing has a field

work date of 9/25/12. "

This document further provided:

That as stated in paragraph 12 (twelve) of

Petitioner ' s Administrative Complaint:

Respondent violated § 472.035l(l)(h), Fla.

Stat., through a violation of Florida

Administ rative Code Rule 5J - 1 7.051(3)(b)3.,

in that the field notes that are dated show

a date of 9/24/12, while the survey

drawing has a field work date of 9/25/12.

These statements appear to admit not only the different dates,

but also that the survey as submit ted to Petitioner constitute d

a violation of the rule, albeit a minor one.

3 / Mr. Gloer noted that the complainant said there was no water

meter at the easterly corner, both in testimony and in his

report ; however , this was hea rsay unsupported by compete nt

evidence at hearing .

4 / The Administrative Complaint did not allege that point 8,

which was shown as set in the field notes, was not plotted on

the survey. Cf . Trevisani v. Dep ' t of Health , 908 So. 2d 1108,

1109 (Fla. 1st DCA 2005)(reference to statu te allegedly violated

without factual allegation of act or omission that constituted

the alleged violation denied licensee reasonable notice).

5 / Although Petitioner proposed a recommended penalty including

suspension for Respondent Exacta, given the str ict construction

of penalty statutes and rules, it is not clear that suspension

is authorized for a business entity . Rule subsection 5J -

17.011(3) is quite confusing. Rule paragraph (3)(b) appears to

authorize suspension for " grounds set forth in subsecti on (1), "

but that rule subsection does not set forth grounds for

discipline . Further, rule subsection (3) does not appear to

comply with section 473.0355. F inally , rule subsection (3)

appears to apply only to surveyors and mappers, consistent with

the la nguage of section 472.0351(2). Even a ssuming suspension

is authorized for business entities, the specific disciplinary

guidelines for violation of section 472.0351(1)(h) themselves

apparently permit suspension only in the context of an ongoing

violation : " until compliance with legal obligation. "

COPIES FURNISHED:

Patrick Francis Creehan, Esquire

Department of Agriculture and

Consumer Services

2005 Apalachee Parkway

Tallahassee, Florida 32301

(eServed)

Torben S. Madson, II, Esquire

512 Peterson Avenu e South

Post Office Box 1041

Douglas, Georgia 31534

(eServed)

Honorable Adam Putnam

Commission of Agriculture

Department of Agriculture and

Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

Lorena Holley, Genera l Counsel

Department of Agriculture and

Consumer Services

407 South Calhoun Street, Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from t he 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.