Judges: Jim Smith Attorney General
Filed Date: 6/29/1984
Status: Precedential
Modified Date: 7/5/2016
The Honorable Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Dear Secretary Roche:
This is in response to your request for an opinion on the following question:
EXCEPT AS EXPRESSLY EXEMPTED BY THE PROVISIONS OF s
472.003 , F.S., ARE EMPLOYEES OF THE STATE WHO PERFORM SERVICES FOR THE STATE WHICH FALL WITHIN THE DEFINITION OF "LAND SURVEYING" CONTAINED IN s472.005 , F.S., REQUIRED TO BE LICENSED PURSUANT TO s472.015 , F.S.?
Chapter
Section
The Legislature finds that improper land surveying of land, water, and space presents a significant threat to the public and therefore deems it necessary to regulate land surveyors as provided in ss.
472.001 -472.039. (e.s.)
Section
Section
(4)(a) "Practice of land surveying" means, among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring, locating, establishing, or reestablishing lines, angles, elevations, natural and manmade features in the air, on the surface and immediate subsurface of the earth, within underground workings, and on the beds or surface of bodies of water, for the purpose of determining or establishing the facts of size, shape, topography, tidal datum planes, legal or geodetic location or relocation, and orientation of improved or unimproved real property and appurtenances thereto, including acreage and condominiums.
(b) The practice of land surveying also includes, but is not limited to, photogrammetric control; the monumentation and remonumentation of property boundaries and subdivisions; the measurement of and preparation of plans showing existing improvements after construction; the layout of proposed improvements; the preparation of descriptions for use in legal instruments of conveyance of real property and property rights; the preparation of subdivision planning maps and record plats, as provided for in chapter 177; the determination of, but not the design of, grades and elevations of roads and land in connection with subdivisions or divisions of land; and the creation and perpetuation of alignments related to maps, record plats, field note records, reports, property descriptions, and plans and drawings that represent them. (e.s.)
One of the principal objectives of Ch. 472 is expressed in s
I am aware of the general rule regarding the application of a statute to the state, found at 82 C.J.S. Statutes s 317, p. 554-555 where it is stated "[t]he government, whether federal or state, and its agencies are not ordinarily to be considered as within the purview of a statute, however general and comprehensive the language of act may be, unless intention to include them is clearly manifest, as where they are expressly named therein, or included by necessary implication." However, this treatise goes on to note that "the rule with respect to the exclusion of the sovereign is less stringently applied where the operation of the law is on the agents or servants of the government rather than on the sovereign itself . . . ." page 556 (e.s.) Moreover, this treatise also says that the general rule has been relaxed in modern times, and has been declared not to apply to statutes made for the public good, or the prevention of injury. Cf., s
Additionally, the Legislature appears to have included state employees within Ch. 472's purview by necessary implication. Under the rule "expressio unius est exclusio alterius," exceptions made in a statute give rise to a strong inference that no other exceptions were intended, e.g., Thayer v. State,
I also note that it would appear equally important that state land surveying duties and responsibilities be accomplished with the same degree of technical competence and by persons with the same training as land surveying performed in the private sector.
While the courts might well hold that state employees are not within the regulatory provisions of Ch. 472, I am persuaded that the better view and the safer course is, in this instance, to advise you that state employees who practice land surveying, as defined in s
In summary, it is my opinion, until legislatively provided or judicially determined otherwise, that state employees who practice land surveying, as defined by s
Sincerely,
Jim Smith Attorney General
Prepared by:
Anne Curtis Terry Assistant Attorney General