SB 556 Poll

[David Kendall]

http://leginfo.legislature.ca.gov/faces ... 20200SB556

[Jim Frame]

I'm opposed to changing the law to allow businesses to practice land surveying. I believe that land surveying practice should remain an individual responsibility, not a corporate one. The more layers between the licensed professional and the public, the more opportunity for and likelihood of negligent, incompetent and/or fraudulent practice.

[LS_8750]

Interesting insight Mr. Frame. Not opposed to your position.

Are there proposed changes to 6730 of the PE Act?

Curious to do a side by side comparison...

[David Kendall]

The way I see it is that broadening the definition of surveying to include “laying out by mathematics” makes a mockery of our profession. Any carpenter with a yard stick is doing that. This is not what I am practicing.

Secondly, requiring a licensed businessman to get a second license to perform his business is onerous and in my opinion bordering on extortion. I don’t understand the value of it.

Does anyone know who came up with this nonsense? I’d like to politely request an explanation....

[DWoolley]

The purpose of adding language to include businesses is to grant BPELSG authority over a business in the instances of unlicensed practice. The issue is construction contractors, GIS "professionals", drone operators, dredge boat operators, anyone with a RTN GPS etc - all performing land surveying as defined in Bus. and Prof. 8726 - can operate their unlicensed business without any threat of regulation. Generally, BPELSG only has authority over individual licensees, not businesses. If there is an unlicensed business offering the services that fall within the practice of land surveying BPELSG would have the authority to regulate i.e. fine or sanction the business.

Also, in the event a business model is violating the law i.e. record boundaries with topographic mapping, failure to file records of survey, two monument tango boundaries, the business faces no consequences for their wayward practices. The individual licensee, even if not a principal, is saddled with the liability. There are licensees that have lost their license in retirement because a company will not own their legal obligations. This modification, although it doesn't protect the individual licensee, will create liability for the business.

For these reasons, I support the language in the bill. The professional community must take action to stem the increasing loss of marketshare to unlicensed businesses. As it stands, the practice of land surveying is being deregulated by unlicensed practice. In the alternative, the community could rip the bandaid off by simply deregulating the occupations as recommended by a 2016 Little Hoover Commission report #234 (here: https://lhc.ca.gov/report/jobs-californ ... g-barriers ).

On a separate thread there are some folks advocating deregulation by turning a blind eye to negligent practice. There is very little difference between unlicensed practice and unregulated practice. Either way, the public is unprotected. Viewed in its entirety, the noble endeavor of the deregulation advocates, public be damned, would be to prohibit licensees from using a license to bar participation in rendering services. Why take half measures with a "surveyor to recorder"?

DWoolley

[LS_8750]

I'm on board Mr. Woolley.

I am seeing that these non-surveyor practitioners, including most engineers, have no idea about how GPS works, or how to process data into CCS83, or other coordinate systems. I'm seeing these technologies employed in risk management and monitoring more often and it naturally follows that accuracy is of paramount importance. Crickets in the non-PLS world, the techs don't know how to do the job. Many folks just don't understand, no concept of basic geodesy.

Recall there is a great thread on here I think authored by Mr. Pallamary, "Measurement is Dead." Perhaps this so called death of measurement is akin to the progression from sail to steam, stick to automatic; there are still sails and stick shifts. There are purists and traditionalists and professionals and there are fakes.

And of course de-regulation I see as a real deal. I'm involved in a boundary dispute case that should never have come about. Crappy surveyors, and the judge wants to accept the surveys as valid, which is the threatening part. Total garbage and the court accepts? There are licensed folks out there that need to go bye-bye due to total lack of understanding of their duties as professionals. Classic Jeff Lucas type of example....

The classic business example is the engineering company that marginalizes the surveyor, but hangs on to the survey departments cash flow, and then cans the surveyor when the business steps into the ethical grey area that the surveyor balks at....

Go get em!

[William Magee]

Playing devil's advocate here, and not because I may or may not think the surveyors and Senator Pan musta been smoking crack when they put this out.

Not many big, medium and even some small contractors left who are not using gps and robots. Nary any if at all are putting a LS in responsible charge of said equipment use.

Guess what part of the curriculum is at the local junior college heavy equipment class. You got it, "grade setting" with gps rovers. Guess who is not teaching "grade setting" with gps rovers. You got it. Its not land surveyors.

Probably the biggest stumbling block the alleged crack smokers will encounter when at legislative hearing is their lack of homework in proving harm to the public. Oh there have been a few isolated incidents of mistakes made, but then again, so have there been mistakes made by surveyors on jobs staked by surveyors.

On the other side of the fence, the Association of General Contractors (AGC) will certainly be able to show how they, with their use of gps and robotic total stations, have successful constructed thousands of jobs by most every currently operating big, medium, and some small construction firm out there.

Also, being as that the AGC of California is part of a much larger national association, I have little doubt their very sharp representatives will note the fact that for some states, topographic and construction surveying has always been an unregulated practice. And successfully so. In those states, land surveying is only regulated in regards to boundary surveying.

In addition to the potential AGC arguments, a big stumbling block I haven't seen our industry being able to avoid tripping over, is the plain and simple fact that our current law is being violated in its present form. That hasn't been enough to stop contractors from embracing having their grade setters perform unlicensed survey activities. It hasn't been enough, not because the L.S. Act is lacking in any ways. No, it hasn't been enough because surveyors haven't been diligent in filing properly documented complaints. Some, not many, complaints have been filed against contractors. However I am told those few filed have not contained adequate documentation of evidence by those filing them. And they have been so infrequent so as to have virtually no effect on the progression of contractor violations of the L.S. Act. If only one out of every 10 of the contractor's grade setters got turned in for unlicensed practice, and with well documented evidence thereof, then I'd bet we wouldn't be talking about SB 556 today.

Lastly, and while taking off my devil's advocate hat. I believe in the value of land surveyor oversight of construction and topographic surveying.
I believe that needs to be the emphasis here. Sell that. Sell our own brethren the need to document and file complaints against the grade setters themselves. And while we're at it, let's change our L.S. Act. Change it to better define grade setting. The L.S. Act in its current form has been violated for years, one example being the contractor's use of rotating laser level to lay out sewer lines. Why wasn't anyone screaming then? Why not better define grade setting and with it, recognize in it that contractors can successfully use gps and robotic total stations. And rotating laser levels. To a limit. A well defined limit. One the AGC and the survey industry can see eye to eye on.

Understand that and adapt to it, or suffer the same fate the native tribes did in their resistance to the pioneer's westward movement.

[DWoolley]

Magee, a well written post.

Operating Engineers (OE) has accepted responsibility for working with AGC. The last update I received, approximately three weeks ago, was AGC had some questions. However, the folks at OE said they were legitimate questions, not opposition (yet).

We are in agreement the current PLSA clearly covers the practice. The problem isn't with the law. Largely, the problem rest within the land surveying community's own failure to follow the law. I would argue most local land surveying work product is not signed and stamped i.e. cut sheets, control maps, topographic maps, etc. Oftentimes the licensed land surveyor's work product is indistinguishable from the contractor's work product - which makes your point.

There are those in the land surveying community, often scofflaws themsleves, vehemently opposed to filing complaints. This stands to reason. I do not understand the law abiding land surveyors that are opposed to folks filing complaints. Dishonest and/or incompetent land surveyors hurt the public and moreover, hurt honest business. Presumably, they prefer putting forth a land surveyors image akin to that of transient carnival workers.

On the other side of coin, BPELSG staff solicits complaints in nearly every public venue. However, in practice they are a complaint washing machine. I have known several people that have filed detailed complaints, anxiously waited by the mailbox for years, only to have the complaint washed away "in the interest of justice". In some cases, BPELSG staff helped someone through the map making process, essentially teaching them to survey. The vast majority of the people that I have spoken to about the complaint process were completely disheartened by the process and would never file another complaint. I believe this is an example of Hanlon's razor, coupled with poor quality experts, a lack of a law enforcement or regulatory background and not a grand conspiracy. However, a handful of Orange County folks will continue to file complaints like shoveling coal into a steam engine. Don't hold me to the numbers, but I believe the OC stats person recently reported 60% of the complaints submitted to BPELSG get washed. Most recently, the licensee was determined to have violated the law (failure to file) and the survey failed to meet the most minimum of standards, $1500 citation. Last month, BPELSG sent a letter saying they were washing the complaint as they had determined there was no violation of law. What?! Unfortunately, this is not entirely uncommon.

Lastly, let AGC (or anyone else for that matter) tell us no. More often than not, land surveyors are defeatist and kill their own opportunities before anyone outside can do so.

DWoolley

PS I asked for and recieved an SB 556 fact sheet that I will post tomorrow. Please discuss SB 556 within your chapter and with the chapter directors. I hope we can count on CLSA support of this bill.

[David Kendall]

Viewed in its entirety, the noble endeavor of the deregulation advocates, public be damned, would be to prohibit licensees from using a license to bar participation in rendering services. DWoolley

Can you please repeat that? Sorry I didn't get it the first time....

Presentation of a poorly written law that no one can understand serves no one. Case in point:

1) There is no explanation of whether the minimum $200 license or certificate to operate a surveying company would be an annual tax or occasional frequency. Some of us who are just starting out would prefer to avoid unnecessary costs

2) Again the definition of surveying is too broad. The way this is written every plumber on every residential construction project could be fined for unlicensed practice as could a cub scout building a pinewood derby car.

The union is making a mess. It could be argued that they are watering down the definition of land surveying in their own interest and some of us would like to sharpen the definition not fog it up.

[William Magee]

I don't think I would put forward so many assumptions as though they are fact. Such as those opposed to filing complaints are "often scofflaws themselves". Disdain for snitches is not solely the purview of criminals. It is also held in high regard by many with good hearts. "Nobody likes a tattle-tale" was not uncommon to hear uttered by teachers and parents as a moldable youth.

[DWoolley]

Viewed in its entirety, the noble endeavor of the deregulation advocates, public be damned, would be to prohibit licensees from using a license to bar participation in rendering services. DWoolley

Can you please repeat that? Sorry I didn't get it the first time....

David Kendall:

Restated, the purpose of licensure is to establish and test the minimum required knowledge to protect the public from negligent and/or incompetent practice. If the protection for the public is not there, the practitioners, by default, are using the license to create exclusivity within a group. The exclusivity serves to create a service market held captive by the licensees. Secondarily, the license predominantly serves as a barrier to entry into the exclusive group.

If it can be demonstrated licensure is predominantly a means for exclusiveness and the public is not being protected by the strict regulation of the license the argument would hold the practice should be deregulated. Frankly, I believe the practice has crossed this threshold. Although I am not familiar with every land surveyor or their practice, I see more negligence and/or incompetence than is acceptable to justify licensure.

SB 556 and any other land surveying bills are intended to further protect the public by creating or clarifying regulations. Anything less will continue the march towards deregulation of the profession and ultimately, the loss of licensure.

Thank you for the question.

DWoolley

Wait a minute Magee, you stated earlier, subsequently deleted, "that [you are] glad you did not grow up in Orange County". Orange County is a nice place (for the record, between you and I, I did not grow up here either).

As for snitches, I prefer the word "tackler". A thug knocks an old woman to the ground and steals her purse. Two types of witnesses; 1. the person that averts his eyes and looks away indiscriminately 2. the tackler. It is fair to say, I am a tackler.

[William Magee]

SB 556 and any other land surveying bills are intended to further protect the public by creating or clarifying regulations.

DWoolley

And as I recall, Edward John Smith "intended" to accomplish a far better result than what happened when he pushed the Titanic at full throttle through a known field of icebergs.

I am of the opinion that 556 is poorly written legislation. I am an optimist and am hopeful that if it ends up on the governor's desk, that its many flaws will be resolved for the better.

And by the way. I've seen some of your tackles. I think that discussion warrants a thread all by itself.

And for the record. I never said I was "glad" that I never grew up in O.C.

[E_Page]

Magee said: "I am of the opinion that 556 is poorly written legislation. I am an optimist and am hopeful that if it ends up on the governor's desk, that its many flaws will be resolved for the better."


For the most part, I share that opinion. The overall goal of the authors of the bill language is a good one, but there are flaws ranging from minor to some begging for misapplication and misuse.


Jim,

The goal, and actually the result of this language should it become law is not to authorize a business to practice land surveying apart from a valid individual licensee. Unfortunately, 8728 is written so poorly that it's not clear on that point. You need to read it together with 8729. There must be an LS as owner/part owner and/or corporate officer.

It shouldn't be written to say that a business practices land surveying. A business cannot practice land surveying. One or more individuals within a business might practice land surveying. The business would be (and the language must be more clear on this) authorized to offer land surveying services by virtue of having an appropriately licensed individual in the business management structure.

However, proposed 8729(e) would undermine the effect of 8729(a). If a company would qualify for this certificate to offer LS services simply by employing or contracting with a licensed surveyor, then why keep the greater requirement of requiring that an LS be an owner and/or officer in the company?

I think that the old language of (e) was closer to what they need.


Dave Kendall,

That fee without clarification of whether it is a one-time fee or a recurring one on some renewal schedule is typical of the... I suspect lack of experience writing effective legislation rather than carelessness... that plagues this bill. That lack of care or knowledge in writing clear legislation shows up in several places to leave many opportunities to create unintended consequences that would undermine the underlying intent of the entire effort.

Another big problem spot I see is the requirement to forward "valid complaints" to the other boards. When is a complaint valid? Is it when an unlicensed enforcement analyst decides that they will begin a complaint file on it? Is it when the Board executes a final action on the matter after determining there has been one or more violations? Or is it some undefined point in the process after opening a file and before finalizing Board action?

As worded, that provision violates due process. I still wouldn't like it, but it would be better to replace "valid complaint" with "final citation or disciplinary order".

As Dave W pointed out, there are some serious fundamental flaws with the enforcement process that need to be corrected before any of us should be comfortable with expanding the Board's authority in that regard.


Responding to Magee's characterization of a licensee who submits a complaint being a "snitch".

As I said in the Surveyor to Recorder thread, one of the defining aspects of a profession is that it police it's own ranks. That doesn't mean offloading the entire responsibility to a licensing board. There are certain areas of authority that only a regulating agency can perform, but there is much that a professional society and individual professional licensees can do with regard to policing within our ranks.

First and foremost, it requires that licensees must have a spine. Much of the attitude that eschews calling other licensees out for poor practice is nothing more than cover for a complete lack of courage. Our ranks are filled with cowards. Those cowards who will neither challenge another licensee for poor or questionable practice, and those who will not tolerate others questioning their own practice.

The idea that "everyone recognizes who the bad actors are and consider their work accordingly" is another way of saying "just look the other way as others rip off their clients, but quietly bad-mouth those surveyors behind their back to your buddies".

There is no legal basis for discounting another's work simply because they've developed a reputation of being a "bad actor" among other surveyors. In fact, there is case law where a surveyor was chastised in the ruling for discounting another's survey because of the other's reputation (reportedly, the other surveyor's license had been revoked shortly before his map had recorded). If you had to go to court to defend your survey in which you had discounted or ignored another's survey which was otherwise pertinent to your job on the basis of your opinion of the other surveyor's quality of work, it would count against your own credibility unless you are prepared to demonstrate why THAT particular survey was deficient to the point of uselessness.

A person is a snitch only if they go straight to submitting a complaint before even attempting to discuss the matter with the other licensee, and if necessary, bringing in the opinions of other local licensees respected for their standards of practice. But that level of professionalism requires both courage and civility. Too many in our ranks prefer to bad-mouth others from the safety of anonymity and to undermine colleagues from a place of hiding.

[DWoolley]

The idea that "everyone recognizes who the bad actors are and consider their work accordingly" is another way of saying "just look the other way as others rip off their clients, but quietly bad-mouth those surveyors behind their back to your buddies".

The Pope and his pals chose this "look the other way" path. It does not appear to be working out for them.


Please find a copy of the Fact Sheet for SB 556 attached.

DWoolley

[jonwheat]

The idea that "everyone recognizes who the bad actors are and consider their work accordingly" is another way of saying "just look the other way as others rip off their clients, but quietly bad-mouth those surveyors behind their back to your buddies".

The Pope and his pals chose this "look the other way" path. It does not appear to be working out for them.


Please find a copy of the Fact Sheet for SB 556 attached.

DWoolley

Really? Do you really think this is appropriate?

[DWoolley]

The idea that "everyone recognizes who the bad actors are and consider their work accordingly" is another way of saying "just look the other way as others rip off their clients, but quietly bad-mouth those surveyors behind their back to your buddies".

The Pope and his pals chose this "look the other way" path. It does not appear to be working out for them.


Please find a copy of the Fact Sheet for SB 556 attached.

DWoolley

Really? Do you really think this is appropriate?

Inappropriate compared to what? Compared to their crimes?
Hardly inappropriate. They made their own bed. Surely, you are not suggesting...

DWoolley

[David Kendall]

"Land surveying is a highly technical trade in the
construction industry, and involves the performance of
surveys using mathematics and photogrammetry to
establish property lines or boundaries of any parcel of
land, right-of-way, and easements. These boundaries are
used throughout the entire project to ensure construction
plans are being followed correctly."

As I said previously, this is not what I am practicing and I resent anyone representing our profession in this manner. I would prefer to have the unions create a Professional Field Engineers Act to regulate their own profession instead of eroding ours. Please do not endorse this.

I am not against an overhaul of the LS act but I will not support it being written by a pediatrician with marginal input from the community which it governs

[Mr. Smith]

Maybe we could raise the minimum fine up to $20,200 and not confiscate $200 per year from the honest ones.

Brian

[jonwheat]

Inappropriate compared to what? Compared to their crimes?
Hardly inappropriate. They made their own bed. Surely, you are not suggesting...

DWoolley[/quote]

Dave,
The what I am suggesting is if we turn this forum into a place to slander religious leaders (the Pope I'm not even sure which one you are talking about feel free to clarify) as you did earlier today it threatens the credibility of the discussion, dissuades input from others, and exposes CLSA to risk.
Jon Wheat

[DWoolley]

Dave,
The what I am suggesting is if we turn this forum into a place to slander religious leaders (the Pope I'm not even sure which one you are talking about feel free to clarify) as you did earlier today it threatens the credibility of the discussion, dissuades input from others, and exposes CLSA to risk.
Jon Wheat

Jon Wheat:

Arguably, my recent posts does not dissuade input - proof positive is it got you, an infrequent contributor, off the bench and in the game. Now that you're in, do you have any input or thoughts on SB 556?

For those interested, slander (and libel) are types of defamation. The defense for defamation is truth:

"Truth is an absolute defense to libel claims, because one of the elements that must be proven in a defamation suit is falsity of the statement. If a statement is true, it cannot be false, and therefore, there is no prima facie case of defamation."

That said, it appears as though we (and CLSA) are on super safe ground legally. However, I agree with you, there is little reason to continue an off topic discussion on this forum.

Please email or call me if you would like to discuss the any particular pontiff further. I sincerely welcome an education.

Mr. Wheat, I apologize if I have offended your sensibilities. For future reference, I will draw from differing analogies.

David Kendall - do you have any alternative language? This is the time for the land surveyors to contribute to the legislative process.

DWoolley

[David Kendall]

SB 556 and any other land surveying bills are intended to further protect the public by creating or clarifying regulations.

David Kendall - do you have any alternative language?

I suppose that I don't understand the problem. It appears to be something about the Board being legally unequipped to hold companies accountable for unlicensed practice.

I submit that making the definition of land surveying so broad as to include any mathematical calculation by a layman is the opposite of clarifying regulations.

The issue is construction contractors, GIS "professionals", drone operators, dredge boat operators, anyone with a RTN GPS etc - all performing land surveying as defined in Bus. and Prof. 8726 - can operate their unlicensed business without any threat of regulation....

Also, in the event a business model is violating the law i.e. record boundaries with topographic mapping, failure to file records of survey, two monument tango boundaries, the business faces no consequences for their wayward practices. The individual licensee, even if not a principal, is saddled with the liability. There are licensees that have lost their license in retirement because a company will not own their legal obligations. This modification, although it doesn't protect the individual licensee, will create liability for the business.

Generally speaking, if those operators which you describe are measuring something other than boundaries then I feel that it is not my concern. If they cross a line then there are already legal remedies in place. If it is a company with no LS on staff locating fixed works in relation to boundaries then they are in violation of 8729(e).

A business putting out maps with those characteristics better have a LS on staff or consulting that in my personal opinion ought to be held accountable for those maps. I do not object to the idea of certifications or stamps on topographic maps if that is what you are after. If the hypthetical company is systematically contracting for surveys with no budget for a record should it become necessary, then ordering the surveyor to move on and creating a situation for negligent practice that way, then that surveyor has a big problem and ought to be looking for other employment. If this is as big a problem as you say then perhaps we ought to be educating ourselves and each other on the problem, not trying to regulate ourselves out of it.

I don't see these protections in the language of the bill as presented. I also don't have as much experience with enforcement or legislative processes as you. I submit that if I give the company enough power to put me in a bind then I may be acting personally and professionally negligent to myself.

I could be convinced if perhaps there was an exemption to the certificate of authority for a business that is not incorporated and if the intent to protect individual licensees was made clear. I don't see this protection in the language presented either.

Mr Woolley how about you explaining how and why you support this bill? I'm seeing a lot of smoke on this thread from your direction but no fire.
Sell it to me.

[DWoolley]

David Kendall:

The trades are absorbing the work traditionally performed by licensed land surveyors. On a construction project they do not call it land surveying, they call it "layout". Typically, layout is the staking of fixed works described in the Professional Engineers' Act. The layout people use the same equipment and oftentimes, procedures traditionally used by the land surveyors. The amendment to Bus. and Prof. Code 8726, shown in SB 556, is intended to use the same industry language used by unlicensed layout folks performing land surveying as part of the statutory description of land surveying. Frankly, in my opinion, the semantics is likely to be insignificant on either side of the discussion e.g. is a rose not a rose by any other name? The unlicensed folks may simply change their layout crew to their ice cube crew, then what? However, if the change in the language will help the licensed brethren create a distinction to eliminate any unlicensed practice I believe the licensed community should support the amendment. To do nothing, even at this late date, allows unlicensed practitioners to continue to perform land surveying services unabated.

In an earlier post I described the reason for licensing businesses with a Certificate of Authority. This creates an authority for BPELSG to regulate and cite businesses that offer land surveying services without a licensed land surveyor on staff. The challenge is the current law allows ancillary businesses to offer services "incidental to" which creates a large loophole for unlicensed practice. The language in SB 556 is intended to close this loophole.

I believe the preservation of the practice requires regulation that distinguishes licensed practice from unlicensed practice. The regulation needs to be strictly and evenly enforced by BPELSG. Anyone familiar with the process knows the enforcement program is currently unjust and needs to be cleaned up. However, they are the only game in town. The professional community is not going to be softserve "educated" into compliance. As I detailed in another post some months ago, the "continuing education" crowd uses this 50 years old mantra as camouflage.

I further believe that if the professional community does nothing they are facing almost certain extinction through combinations of deregulation and loss of marketshare due to unlicensed practice and saturation caused by technology leaps.

Recommended reading: Susskind "The Future of the Professions: How Technology Will Transform the Work of Human Experts"; California Little Hoover Commission report #234; https://reason.org/commentary/occupatio ... californi/ and lastly, simply Google "onerous occupational licenses".

We have professional land surveying communities that do not abide by the existing laws. The laws serve to protect the public. Licensing is intended to protect the public by testing and regulating the licensees. If the licensees do not follow the law - what is the point of licensing?

We either become an unlicensed trade or we decide there is no longer room for licensed scofflaws and unlicensed practice. If you have anyone standing around for the last 20 years and could not be bothered with taking the LSIT, cut your loses, start rebuilding.

Who has a good argument as to why land surveying should not be deregulated? Now is the time make that argument and begin to fortify the position.

On an upnote, there are some encouraging programs that indirectly support the profession. However, the programs come at a price and will change how business is conducted.

DWoolley

[LS_8750]

Are there changes proposed for the PE Act? 6730? If so, what are they?

[DWoolley]

LS_8750

I am not aware of any changes to the PE Act. However, I am intent on eliminating 6731.1. PE Act 6731.1 allows post-82 engineers to perform engineering that should technically be exclusive to land surveying. Some folks mistakenly call the work "land surveying" due to the nearly identical language from PLSA 8726 (b). However, as licensed engineers (not dual licensed as a Professional Land Surveyor) they are legally and technically engineering.

DWoolley

[dedkad]

I'm with David Kendall on this one. The wording is too far reaching in its attempt to prohibit other professions such as engineering disciplines, contractors, and even a person doing a home improvement project from performing work that they are more than capable of doing.