Survey Company Operating Legally?

[JasonCamit]

Here is the scenario:

-Incorporated company with a fictitious name (unsure if said fictitious name is registered with the board or not).

-Advertizing Surveying and practicing surveying (no civil or other engineering work being advertized or practiced).

-No officers of said corporation hold a Professional Land Survey license in CA or any other state.

-Said company is located in CA.

-Said company has a Licensed Land Surveyor as an employee.

Is this company operating legally?
Does the PLS need to be an officer of the Corporation?
What are the liabilities of the PLS, as an employee?

I have read the board rules, but I would like to some feedback from the forum.

[mpallamary]

The first thing I would do is to contact the State Board and ask for an Organizational Record.

As to liabilities, anything signed or done by the LS under his/her watch is his/her's forever.

Liability is forever regardless of where you are and who you work for.

Good luck.

[pls7809]

PLS Act 8726 Land surveying defined
A person, including any person employed by the state or by a city, county, or city and county within the state, practices land surveying within the meaning of this chapter who, either in a public or private capacity, does or offers to do any one or more of the following:
(i) - Procures or offers to procure land surveying work for himself, herself, or others.
(j) Manages, or conducts as manager, proprietor, or agent, any place of business from which land surveying work is solicited, performed or practiced.
(k) Coordinates the work of professional, technical, or special consultants in connection with the activities authorized by this chapter.

PLS Act 8729:Land surveying business, business title
(a) This chapter does not prohibit one or more licensed land surveyors or civil engineers licensed in this state prior to 1982 (hereinafter called civil engineers) from practicing or offering to practice within the scope of their licensure, land surveying as a sole proprietorship, partnership, firm, or corporation (hereinafter called business), if the following conditions are satisfied:
(1) A land surveyor or civil engineer currently licensed in the state is an owner, partner, or officer in charge of the land surveying practice of the business.
(2) All land surveying services are performed by or under the responsible charge of a land surveyor or civil engineer.
(3) If the business name of a California land surveying business contains the name of a person, then that person shall be licensed by the board as a land surveyor or licensed by the board in any year as a civil engineer. Any offer, promotion, or advertisement by the business that contains the name of any individual in the business, other than by use of the name of the individual in the business name, shall clearly and specifically designate the license discipline of each individual named.
(d) A person not licensed under this chapter or licensed as a civil engineer in this state prior to 1982 may also be a partner or an officer of a land surveying business if the conditions of subdivision (a) are satisfied. Nothing in this section shall be construed to permit a person who is not licensed under this chapter or licensed as a civil engineer in this state prior to 1982 to be the sole owner or officer of a land surveying business, unless otherwise exempt under this chapter.
(e) This chapter does not prevent an individual or business engaged in any line of endeavor, other than the practice of land surveying, from employing or contracting with a licensed land surveyor or a licensed civil engineer to perform the respective land surveying services incidental to the conduct of business.

[JasonCamit]

Thanks Ryan.

It appears that if a business with a fictitious name is advertizing and offering surveying services, and this is their primary sorce of business conducted, then a licensed land surveyor would need to be the owner/partner/officer of the company and oversees the land surveying work. If the business has the name of a person, then that person needs to licensed, as well.

Am I reading this correctly?

[pls7809]

From what I can tell, yes. But it is difficult to decifer.

[jcoffey]

I think 8729(e) leaves open an easy out for a non-licensed business owner. Based on what it says, you could run and own a business that performs 'land planning' or 'land consulting' services, and you could hire a PLS as an employee, and he/she could perform your 'land surveying' duties, 'incidental to the conduct of the business', which could be 98% of your services - and you could advertise these services, and all of these things would comply with (e). And if you truly represented yourself to be a 100% surveying company, you could make your (PLS) employee an officer by simply giving them the title. Being an officer doesn't necessarily imply a profit-sharing or partnership role. As the PLS 'employee', you are free to try to use the officer title requirement as leverage for your compensation package. If you're concerned, make sure they are complying with Board reporting requirements as Mike suggested.

John Coffey, PE
San Diego, CA

[btaylor]

I would think Dhanrion's example is a violation of the Act. I am pretty sure you have to be an officer in the corporation, not just some fake title that appears on a business card.

Also pretty sure it would need to be listed on the Organizational Record as Mr. Pallamary mentioned.

[mpallamary]

Gents, as a matter of SOP, whenever I run into a company I am not familiar with and seeing that I do a lot of litigation work, this is one of the first things I do. I will also call up and ask who is the Land Surveyor in Responsible Charge and I then write it down. After getting that information, I inquire of the Board and compare notes. In most cases, there is an inconsistency and a record is usually not on file.

Too many companies - way too many companies merely publish documents with the company name and nothing else. These documents are not stamped or signed and they do not disclose the name of the individual in charge. Sadly, many municipalities accept these documents. When I complained to a representative from a large city in Southern California about this he informed me that it was not his job to enforce the LSA.

Plans prepared by "XYZ Company." No names are disclosed and the consumer is holding the bag. The Board has no authority over a company or corporation that can open and close overnight. They do have authority over an individual. I have seen this more than I care to remember. A "company" sets up shop, they do a lot of work and then they close or disappear. As no organizational records were ever filed, you can't figure out who it was. When things go wrong, the company says, "Oh he doesn't work here anymore."

Stay on it if nothing else to keep everyone honest.

[E_Page]

Thanks Ryan.

It appears that if a business with a fictitious name is advertizing and offering surveying services, and this is their primary sorce of business conducted, then a licensed land surveyor would need to be the owner/partner/officer of the company and oversees the land surveying work. If the business has the name of a person, then that person needs to licensed, as well.

Am I reading this correctly?

Yes, you are, unless the survey work is incidental. But you said that they advertise as a survey company. That pretty much blows it for them if they try to claim that surveying is incidental to their other functions.

[JasonCamit]

Who governs companies that are operating illegally?
Does the board have anything to say in the way said company conducts business?
If a PLS is an employee of this company, can the board punish him/her if they are aiding said company operate illegally?

As a newly licensed professional, I am concerned about protecting myself and leveraging when I am in negotiations to perform work. I think that these questions are something all of us need to find answers to, or at least come to a collective consensus. Please keep all of your comments and thoughts coming on this subject.

[E_Page]

It's a PLS Act issue, so BPELS would be the first place I'd go. I don't know if the LS would be getting in trouble. I suspect that it would depend upon the circumstances.

I can think of circumstances where the LS knowingly came into a shady situation, and I can think of circumstances where an LS came into a completely legitimate situation and then things changed. For instance, perhaps there was an LS (or CE) in place as an owner, partner, or officer when this LS hired in, but for whatever reason, that LS or CE owner/partner/officer is no longer there. The remaining owners/partners/officers chose, for whatever reason, to not promote the remaining LS.

Whether or not the remaining LS gets promoted is not his decision. Whether or not he stays is his decision. Hopefully, the LS is conducting or supervising good work and is otherwise conducting business (that which is under his control) in an ethical manner. As long as that is the case, I would hope that BPELS would take that and the lack of other viable prospects during these economically challenged times into account where the LS is concerned.



Edit/addition: I think that one needs to look at the purpose of laws when considering enforcement. Why would the legislature want a company offering surveying to have a professional in such a role of responsibility? After all, the work is being properly supervised by the LS employee, right? (OK, I'm making an assumption for the sake of argument here - just go with it) Isn't it possible, maybe even probable that at some time one or more of the owners will attempt to persuade the employee LS to bend his professional judgment for economic reasons? Heck, this happens in companies where there are properly licensed people in ownership/fiduciary capacities, it's almost a certainty to happen at some point where there isn't such people in such positions.

In the case where there is an LS in an owership capacity, the employee can hand over the files to the boss to sign and stamp if the employee really disagrees, or the boss can decide to override his employee's judgment and take over responsible charge of the project. Even if the employee ends up signing the work, that employee does not have the same fiduciary responsibility to the company as an owner does. The law is there to create the nexus between the work, the financial liability, and a person authorized to perform the work, or at least have a professional background which gives one a presumed understanding of the nature of the work.

An employee is susceptible to pressure where one's job may be at stake. An owner is either not, or is less susceptible to such pressure. Sure, if we were polled, most of us might say "It doesn't matter. Anyone telling me to alter my conclusions against my professional judgment can take a hike! I quit!!!", but I suspect that the poll numbers would be subject to wild swings depending upon whether it were merely an academic question or a real situation for each of us, and whether we had several other good income prospects or none at all.

This all goes back to protecting the public (the clients), and ensuring that the work is done properly and without bias. If there were no evidence of the LS's judgment having been altered by pressure from the owners, or of harm to any clients or the general public, I suspect that the owners would be directed to correct the ownership structure or stop surveying, and the LS would experience no adverse action whatsoever from BPELS. Kind of a professional fix-it ticket. After that, it depends upon the owners. The LS might get laid off, might get a new boss, or might get a promotion and ownership interest in the company (these days, that might be considered a demotion for many organizations).

If there were some evidence that the LS allowed himself to be coerced into decisions not based upon experience or sound survey practice, all bets are off for all parties involved. The amount of any regulatory/enforcement adversity toward any individual would depend upon the amount and severity of the nonfeasance or malfeasance by that individual.

[btaylor]

Sorry if some took that as being harsh. I took his statement that it being a "paper title" that had "no other benefits" as being a title that he himself did not feel was genuine. That was the tone I got from his post.

[land butcher]

"As to liabilities, anything signed or done by the LS under his/her watch is his/her's forever.

Liability is forever regardless of where you are and who you work for."



Not to steal this thread, but this is something that needs to be changed.
Even medical malpractice (including death) has a statue of limitations and a $250,000 cap set in 1976 and never indexed to inflation.

[E_Page]

Contrary to persisting belief, liability for a surveyor is not forever. This was addressed 2 or 3 years ago when the CLSA Legislative Committee put the question to legislative Counsel. The answer came back that our liability is similar in term to other professionals.

I know that the letter has been posted on this forum in the past, and I will try to find a copy of it to post again.

[cals6406]

I think this is the one you are looking for.

[E_Page]

That's the one. Thanks for saving me the effort Keith.

[mpallamary]

Thanks guys!

I am familiar with the opinion and have found it interesting in a theoretical way. As I said and with the utmost deference, surveyor liability is forever.

The clock starts running upon "discovery" of the event and the statutes speak in terms of completion of the "improvement." Many surveys are dormant and are not relied upon until many years later when work starts. The boundary you establish today may not be relied upon for 20 years and that is when construction can start. There are exlcusions to single family residences that are not covered.

It's the "if's" and "mays" that get you.

Please note I have enclosed the last page from the opinion along with the lead case cited. It is an interesting read.

Please note the caveat under 337.1 - How many surveys are done for single family residences?

337.1. ------(f) Subdivisions (a) and (b) shall not apply to any owner-occupied single-unit residence.

Stay well as always.

[E_Page]

It seems that the Court, in ACC v S&J, blew right by the 10 year Statute Of Limitations, applying the Discovery Rule to the shorter statutes.

I just skimmed the case to see the high points and the result. I'll read it in detail later.

It appears that the abbreviation for Statute of Limitations is aptly S.O.L. for any surveyor who makes a significant mistake that is found several years later.

[mpallamary]

Here are a few other things to consider.

The problem is we are always targets. I was in a deposition tomorrow regarding a survey related dispute. I am going to testify in a jury trial this morning in East San Diego County to defend another surveyor's work. Tomorrow I am testifying in a mediation in Los Angeles regarding another dispute.

Opinions are nice and interesting but sadly, people get sued and before one can be dismissed, you have to drill through these cases and arguments and absent a Supreme Court decision that squares this away, with all due respect, it remains my opinion that surveyor liability is forever. Perhaps not in every instance but for the general practitioner, it is out there a long time. The State Board of Registration claims there are no statutes of limitation regarding their ability to prosecute a surveyor.

As always, the dialogue is good.