Unlicensed activity?

[rwarburton]

This is my first thread or post.

In your professional opinions, is staking and laying out grid lines for the General Contractor of a large grading project administered by a municipality considered Land Surveying. The general contractor is from out of state and the company that is conducting the staking is also from out of state. No CA LS licenses are held by either company. I first learned of this several years ago and informed both the General and the sub-contractor that I considered them to be in violation of the PLS Act and provided them with a letter drafted by the BPELS addressing that issue. That phase of the project was already underway and I did not want to stop progress. I had no interest in competing for the staking as my company is just not large enough to handle a project of this size. I was previously the QC/QA surveyor and so knew the size and scope of the project.

At the start of the next phase of the project both myself and another local Surveying/Engineering Company were informed by the municipality that all of the surveying (including layout,QA/QC and as-built surveys) would be performed by the municipality.

I was contacted early this week by the principle of the sub-contractor (staking contractor, previous phase) to provide a quote on some topographic mapping of an aggregate pit used during construction. The owner of the pit requested a licensed CA LS perform and stamp the map. When I asked the principal what his role was on the project he informed me that he was conducting the layout of the grid lines but that it was all machine control work so that he and the general did not consider that surveying.

I have not accessed the contract documents as drafted by the municipality for the current phase. I do not know whether they stipulated a CA licensed surveyor as a requirement for staking and layout. While I was QA/QC surveyor I was sub-contracting with the design team who did require a CA license. In addition the whole project is laid out on CA SPC, design as well as the survey control network established by the municipality.

I have informed the General and the sub-contractor that I intend to file a complaint with the BPELS. The only reason I am posting this is to ascertain the general consensus of my peers. If anyone else has run into this type of situation your knowledge would be greatly appreciated, feel free to contact me privately.

Thanks for your input.

[Jim Frame]

If the layout is being done by a company other than the general contractor, then in my opinion the layout work meets the definition of land surveying under §8726(a), "locates, relocates, establishes, reestablishes, or retraces the alignment or elevation for any of the fixed works embraced within the practice of civil engineering, as described in Section 6731."

If the layout is being done by employees of the GC, it gets into that murky area in which machine control, laser levels and grade checking reside.

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[pls7809]

Maybe a contractors board complaint would also apply here?

[rwarburton]

Jim and Ryan,

Thanks for the input, I had run into the murky area of a GC doing their own layout before and so was not clear in my mind as far as the role of a sub-contractor. The principal of the sub-contractor is a former employee of the GC adding a bit more murk to the equation. I'll look into the contractor's board complaint possibility as well. Ryan, if you have a link to the website I should go to that would be great.

[pls7809]

Like Jim eluded, the laws about this are murky and I'm not sure a complaint is warranted on this side, but here's the link to the Contractor's board website...

http://www.cslb.ca.gov/

[Ian Wilson]

It is not land surveying until the control or any of the staking is referenced to a property line or lines. Then it is STRICTLY Land Surveying and requires a license.

[Jim Frame]

It is not land surveying until the control or any of the staking is referenced to a property line or lines.

Ian, in light of §8726(a) (see above), I disagree with this statement. In my opinion, construction staking -- even in the middle of a 500-acre tract, with no reference to a property line -- constitutes the establishment of the alignment and/or elevation of fixed works, and thus falls within the definition of land surveying *when that service is offered to the public*. The public, in this context, would be an entity -- individual or business -- not under the direct ownership or control of the offeror.

So if an unlicensed individual stakes engineering plans on his own property, or a general contractor's unlicensed W-2 employee stakes engineering plans on the GC client's property, neither is in violation of §8726(a). (They might be in violation of local building codes, but that's another matter.) However, if an unlicensed individual contracts with an owner or with a GC to stake engineering plans, he's in violation.

When property lines are referenced, it's always land surveying except when the work is performed by the owner or his employees.

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[Ian Wilson]

In re-reading what I wrote, I didn’t make myself clear. Independent offering of services is, by definition, the practice of land surveying. Sorry for the confusion, Jim.

However, I disagree with you last statement. It was perfect until you added the “…except…”

When boundary lines and survey markers must be relied upon to properly stake construction plans, the staking is the very definition of the practice of land surveying and requires the person in responsible charge of the work to be licensed even if the staker is the property owner or employee of the contractor.

If the construction project is to be staked X feet from a property line and some angle relative to that line, then the line must be established. Whether it’s on your own property or another’s, that’s land surveying {§8726(c)}. The exemptions from the license requirements are found in §8730. There’s nothing there that exempts property owners or GC employees from being licensed.

[Jim Frame]

There’s nothing there that exempts property owners or GC employees from being licensed.

I agree regarding GC employees, but not about owners. Per §8725:

It is unlawful for any person to practice, offer to practice, or represent himself or herself, as a land surveyor in this state, or to set, reset, replace or remove any survey monument on land in which he or she has no legal interest, unless he or she has been licensed or specifically exempted from licensing under this chapter.

My interpretation is that the phrase "in which he or she has no legal interest" acknowledges that an owner can practice land surveying on his own land. Although the sentence specifically deals with setting survey monuments, the fact that setting corner monuments is the essence of land surveying leads me to believe that it extends to the ancillary definitions. Because of this, I think a court would have a hard time sanctioning an owner for staking engineering plans on his own property, and would look to §8725 for support. However, I recognize the fact that this is subject to interpretation!

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[Paul Goebel]

Staking could be Civil Engineering practice per §6731(a) of the PE Act.

As Ian points out, when the staking involves property lines it becomes Land Surveying practice.

[Anthony Maffia]

I was taught that property owners are allowed to survey their own property, that they are exempt from survey licensing requirements while on their own property. Did that end? Wouldn't that extend to construction layout, even if tied to property lines?

Not to say there wouldn't be consequences if they get it wrong, just that a property owner can't be busted for unlicensed surveying under state law.

[rwarburton]

It seems that we do have somewhat of a consensus for the specifics of this case. The sub-contractor is providing the service of staking and layout to the GC which (correct me if I am misinterpreting your statements here) Ian, Jim and the Woodcutter agree is defined as the practice of Land Surveying per 8726(a). The property is owned by the municipality, there is no dispute as to the boundaries and the works being constructed are for the most part well within the property. The sub-contractor is merely staking the Civil Engineer's design which is based on a topographic map and boundary determination performed by licensed surveyors who are municipality employees.

The murkiness begins when we apply the real world knowledge that we all have as practicing surveyors that it is impossible to mandate that every aspect of a project designed by Civil Engineers be staked by a licensed surveyor or civil engineer or an employee under responsible charge of said engineer or surveyor.

Do we need to redefine 8726(a)? In light of modern technology perhaps we do. If we strike it from the PLS act entirely then the weight of responsibility for the correct placement of works as designed be Civil Engineers will naturally fall to the GC. They then can determine for themselves whether or not to hire a licensed LS and thus shift the burden of liability to the surveying firm. Or they could hire an unlicensed "Construction layout" company and run the risk of liability due to hiring a non-professional company that is not covered under current insurance industry technical and professional standards. This is, of course, dependent on how the original contract is written and whether or not it stipulates exclusive use of an LS or CE to conduct all of the staking/control layout (as in the use of machine control systems). I'm not advocating this as construction staking is a large portion of my companies income, I'm just playing devils advocate.

As an afterthought, I'm sure that the survey equipment manufacturers would love to see 8726(a) struck as there would be a surge of sales to both contractors and layout companies.

Thanks again for all of the input on this topic. I will let you know what becomes of this issue. Given current statute and the lay persons interpretation of it that I have, I will be filing a complaint with the BPELSG but not the Contractors Board.

[Ian Wilson]

Bump..........

[E_Page]

The property owner can perform his own surveying if completely on his own property and if it does not affect anything or anyone outside of the property.

Property lines never belong solely to just one property. Any work done relative to a property line always affects at least two properties, so a property owner cannot do survey work affecting the property lines, nor in many cases perform surveying that results in improvements subject to setbacks and being near those setbacks.


Where is this "if the GC is not working from the property lines to stake, it's OK" crap coming from?

Is the GC the property owner? If so, he may be OK. But assuming that whatever the GC is building are improvements intended for sale to others, isn't his doing the staking himself a violation of the spirit of the law?

If the GC is not the owner, then the staking is part of the service he is charging for - part of the services he is providing is surveying. That is a violation no matter how you slice it! §8730 lists the license requirement exemptions and I don't see that a GC is exempted as long as he remains entirely within his client's property.

What is the purpose for licensing surveyors? Isn't it to ensure a minimal level of professional and technical competence and to protect the consumers of those services from incompetent practitioners?

If a contractor's "staking" (surveying) services are being performed for a client as part of a larger set of services, then it is still offering services for which a surveying license is required and for which (in nearly all cases) the contractor is not licensed to perform. It is a clear violation.

If the contractor owns the property, then in some cases he may be within the letter of the law in that he is providing those services for himself. But if he is making the improvements for the intent of increasing the value of the property for sale to others, then those improvements and all the services that went in to making them possible are ultimately for some as yet unidentified client - a service for others and not for oneself. Although I'm not aware of any particular case on point, I'm pretty sure that a court or the Board would see it that way as well.

If the GC is performing the staking, he's violating §8726(a), (i), (j), & (K). If he's working in the CCS, he's in violation of §8726(f). If he's creating diagrams or reports based on his measurements, he's in violation of §8726(g). If he's using a data collector, CAD, or any other computer program in connection with the measurement data or if he is updating the DTM with "field design changes", he's in violation of §8726(l).


My understanding as to machine control is that if the design followed was created by a licensed CE, if the DTM was created by a licensed CE or LS, if the control and QC is performed/provided by a LS, and the contractor is essentially only following direction from those professionals via machine command, then there is no violation. The GC can upload the DTM to the machines, can set base stations on the control provided by the LS, can download data from his machines and print reports that his software creates from that data.

The GC cannot alter the DTM, provide his own control points, or perform independent measurements and make reports for QC of the control, DTM, or other spatial relationships.

[Jim Frame]

a property owner cannot do survey work affecting the property lines, nor in many cases perform surveying that results in improvements subject to setbacks and being near those setbacks.

I don't believe that state law governing licensure pertains to *any* surveying done by an owner in the belief that he's working within the limits -- including on the PL -- of his property. I think the §8725 qualifier "in which he has no legal interest" would be very broadly construed by the courts. An owner is still, of course, subject to civil liability for any damage he does to his neighbor's interests.

Regarding GC actions -- and machine control in particular -- I think that the horse has left the barn on this. The notion that the use of particular tools can be limited to certain licensees won't withstand scrutiny over the long haul.

I'd be interested in learning of any court cases involving either of the above.

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[desert turtoise]

I am aware of a fairly recent case where an owner was given a citation (with accompanying fine) for allegedly setting his own points.
Maybe if he had refrained from setting points, there would have been no issue. Such owners add to the difficulty of the process when a case is opened.

On another slightly different but related topic: some neighboring owners dispute the survey of the licensed professional, but they do not set their own points. Maybe that is why they are not cited for section 8725.
For example, I know of one case where an owner taped up a very steep alley to make his own measurement and used that slope distance (error of two feet)as the basis for filing a complaint with the state board. The result; a case file was opened and investigation of the surveyor resulted. ( 2 yr. average) The state's policy requires supporting evidence or sufficient information to justify opening an investigation. Those are their own written words. You can find the exact wording on their various website publications.

When questionsed on their policy, the enforcement department will write a letter that essentially provides an explanation of why they do not have to strictly adhere to that written policy.

I think an unhappy neighbor who hires their own surveyor and provides a conflicting survey result could in some instances be a good example of supporting evidence to open a case on a surveyor.

In the real world setting, in the small claims court, the judge looks at the party who refused to hire a surveyor, looks at his scribblings, then refuses to hear his case. He is required to provide real evidence; he must hire a licensed land surveyor.