ALJDEC

99F-C96166-BTR · Board of Technical Registration · 1998-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 24, 1998. APPEARANCES: The Board of Technical Registration (“Board”) was represented by Assistant Attorney General Gretchen J. Aliabadi. Respondent was represented by his attorney, Curtis Drew. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT

1. At the outset of the hearing, the Board announced that the allegation contained in Paragraph 8 of the First Amended Complaint and Notice of Hearing had been resolved and would not be prosecuted. Respondent concurred with the Board’s announcement. 2. James A. Hewitt, the Respondent, was issued license No. 21773 for the practice of Land Surveying in the State of Arizona on February 26, 1988. Respondent’s license expires on March 31, 2000. 3. On May 28, 1996, Lorie Preston and Jeffrey Schmidt purchased a lot from Karen L. Alden. That lot is a portion of Lot 11, Section 6, Township 1 North, Range 8 East of the Gila and Salt River Base and Meridian, Pinal County, Arizona (hereinafter referred to as “said lot”). 4. Jim Brockman, a real estate agent, was hired by Alden to sell her interest in the said lot and another adjoining piece of property. 5. Brockman, as Alden’s agent, hired Respondent to perform a survey of the two parcels. 6. On or about June 1, 1996, Respondent prepared a results of survey for the said lot. 7. When Respondent performed the field measurements to establish the boundaries for the said lot, he rejected an existing monument (identified by tag LS 4055) in the vicinity of the northeast corner of said lot. Respondent set his own rebar, which was intended to mark his determination as to the location of the northeast corner of said lot, six tenths (6/10ths) of a foot, or 7.2 inches, from the found monument. 8. Respondent’s rejection of the found monument and the survey of the said lot using his rebar for the location of the northeast corner of said lot, created overlapping boundaries for the said lot and the Caperton property located directly north of the said lot. 9. There is no evidence that Respondent’s rejection of the existing monument and the location he selected for the northeast corner of said lot was improper or inaccurate. 10. Respondent’s results of survey identifies the location of his rebar establishing his position of the northeast corner of said lot but does not depict the location of the found monument. The survey does contain a note pointing to Respondent’s rebar which reads: “ SET ½ “ REBAR ALSO FND. ½” REBAR 0.6’ S-LS 4055”. 11. Respondent did not record his land survey. 12. Respondent provided Alden’s agent, Brockman, a copy of his land survey. 13. There is credible evidence of record to support a finding that Respondent failed to adequately disclose the boundary discrepancies to either Brockman or his principal, Alden. 14. Respondent should have advised either Alden or her agent, Brockman, of the boundary discrepancy. 15. Respondent’s assertion that Brockman possessed the necessary skills to review his land survey and discover the boundary discrepancy does not absolve Respondent, who has superior knowledge, training and experience in land surveying, from advising the client’s agent of the boundary discrepancy. 16. At the close of escrow, Schmidt requested a copy of Respondent’s survey, which he then received. Neither Respondent nor Brockman advised Schmidt of the boundary discrepancy. 17. After purchasing the said lot and relying upon Respondent’s monument rather than the found monument, Schmidt proceeded to string a line around his property to identify the boundaries. Caperton subsequently cut down that line claiming that the found monument established the property boundaries. 18. The relationship between Schmidt and Caperton is strained over the boundary discrepancy, to the point where Caperton is wearing a handgun when on his property. 19. Respondent’s land survey establishes points or lines relating to land boundaries or property lines for the said lot and adjoining properties due to Respondent’s rejection of the found monument . 20. It is determined that Respondent had sufficient evidence, by reasonable analysis, that his rejection of the found monument and his selection of an alternative point marking the location of the northeast corner of said lot would result in alternative positions of lines or points outlining the boundaries of the said lot and adjoining properties. 21. Respondent should be required to record a map of survey which sufficiently and adequately depicts the boundaries for the said lot as measured by the found monument and the boundaries as measured by Respondent.

CONCLUSIONS OF LAW

1. The Board has the statutory authority to impose disciplinary action against registrants for violations of the Board’s statutes and rules pursuant to A.R.S. §§ 32-101 through -150, A.A.C. R4-30-124 and A.R.S. §§ 41-1061 through -1066. 2. Respondent’s rejection of the found monument in the vicinity of the northeast corner of the said lot, the placement of his rebar 0.6’ north of the found monument marking the point from which he measured his survey are factors which should lead a surveyor, by reasonable analysis, to conclude might result in alternative positions of lines or points affecting the said lot and the adjoining properties. Therefore, Respondent had a statutory obligation, pursuant to A.R.S. § 33-105 (A) (1) and (2), to record his land survey with the county recorder of Pinal County within ninety days of its completion. Such a recordation gives public notice that a material discrepancy as to the location of the northeast corner of said lot exists between the found monument placed by a registered land surveyor and Respondent’s determined point. 3. The evidence of record is adequate to establish that Respondent has violated the provisions of A.R.S. § 32-128 (B) (4) by violating A.A.C. R4-30-301 (A) (7) in that Respondent failed to apply technical knowledge and skill that would be applied by other qualified registrants who practice the same profession in the same area and at the same time. Respondent should have recorded his survey to give public notice of the material discrepancy between his survey and the location of the rejected existing monument pursuant to A.R.S. § 33-105. Registrants such as Respondent are required to properly comply with the provisions of that statute regardless of what area of the state they practice and regardless of whether there are segments of the land surveying profession who consciously choose not to comply with the statute. 4. The evidence of record is adequate to establish that Respondent violated the provisions of A.R.S. § 32-128 (B) (4) by violating A.A.C. R4-30-301 (A) (5), in that Respondent failed to comply with the requirements of A.R.S. § 32-105 (A) (1) and (2). 5. The evidence of record is adequate to establish that Respondent violated the provisions of A.R.S. § 32-128 (A) (4) by violating A.A.C. R4-30-301 (A) (17), in that Respondent failed to conduct his land survey in accordance with the “Minimum Standards for Arizona Land Boundary Surveys” as adopted by the Board on August 19, 1996. Respondent failed to advise his client Alden, or her agent Brockman, of the discrepancies that raise doubts concerning the boundary lines of the said lot. 6. Respondent should be required to properly comply with the provisions of A.R.S. § 33-105 (A) (1) and (2), by filing a copy of his land survey of the said lot, at his sole cost and expense, with the county recorder of Pinal County. The land survey filed by Respondent should comply with the requirements of A.R.S. § 33-105 (B) and (C).

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter that Respondent’s License No. 21773 be suspended until Respondent presents a record of survey for the said lot, which complies with the provisions of A.R.S. § 33-105, to the Board’s Enforcement Advisory Committee Chairman for review and approval by at least one other committee member, and, further, that Respondent provides the Board of Technical Registration with written proof that the record of survey, as approved by the Board’s Enforcement Advisory Committee chairman and one other committee member, has been properly recorded, at his sole cost and expense, with the county recorder of Pinal County. Any suspension of Respondent’s license shall not exceed three years.

It is further recommended that if Respondent properly provides the Board with written evidence that he has recorded the approved record of survey for the said lot on or before the effective date of the Order entered in this matter, then the above license suspension shall not take place.

It is further recommended in addition to the foregoing license suspension, if any, that the Board impose an administrative penalty upon Respondent in the amount of $250.00.

It is further recommended, in addition to the above-provided penalties, if any, that the Board issue Respondent a written reprimand consistent with the above Findings of Fact and Conclusions of Law.

Done this day, September 10, 1998.

_________________________________ BRIAN BRENDAN TULLY Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1998, to:

Mr. Ronald W. Dalrymple, Executive Director Board of Technical Registration 1951 West Camelback, #250 Phoenix, AZ 85015

ATTN: Mark E. Naugle

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826