CRAIGSLIST: Fully-equipped contract field surveyor needed.

[PE_PLS]

Saw this for the San Jose / Sacramento region this morning:

http://sfbay.craigslist.org/sby/egr/2591885387.html

I would think that legally only a licensed surveyor could fulfill this need but the ad says it is not a requirement that the crew be licensed.

[E_Page]

I agree. The "own personnel and expense" clarifies that this contract surveyor would be employing one or more other persons and dealing with his own business expenses. But then it's also hard to get past the "contract" part right out of the gate, since one must be licensed in order to provide or procure surveying services, i.e. contract for them.

[pbchief2]

How depressing. I've turned down three offers like this.

[Jim Frame]

As long as there's a licensee in responsible charge between the field crew and the public, I don't think the procurement provisions of §8726 bar the envisioned relationship. Unfortunately, it's functionally identical to the way many land surveying business operate (crew does its thing, LS takes their data and turns it into a professional deliverable, no questions asked).

I think the key to legitimacy here lies in the implementation of "responsible charge." While I believe it's impractical to effectively oversee a field crew without regular face-to-face interaction, the law disagrees. Board Rule 404.2(a)(3) allows "the use of communications devices" in doing so, and doesn't require the physical presence of the licensee.

It seems to me that there's a veneer of legitimacy to the proposed relationship that would have to be pierced by a substantiated complaint in order to overturn it. But that's just on the professional side. It'd be much easier to make a case for employment rather than independent contractor status. After all, if the LS is in charge and directing the activities of the crew, then the relationship fails one of the first tests of independence. The IRS and EDD would be very interested in learning of the situation.

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[Jim Frame]

There's a gotcha either way you come at it. If the crew chief is working at the direction of the licensee, then he's not a contractor under the tax authority definition, and the LS is in trouble with the IRS, EDD and his Workers Comp carrier. If the crew chief is working independently, then he's offering land surveying services without a license, and he's in trouble with BPELSG. I think you make the case either way, but not both.

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[Jim Frame]

"Then explain what services the 'contract party chief' is offering to perform."

The very same services that a party chief employed by a licensed land surveyor performs. An employed chief doesn't violate §8726 when he performs measurement (and more) services, because there's a licensee standing between him and the public.

The purpose of §8726 is to define the practice of land surveying as offered to the public; it doesn't pertain to services offered to a licensed land surveyor. Under either arrangement -- employment or contract -- the public is afforded the same protection, i.e. a duly licensed individual directs the activities, reviews the results of those activities, and compiles the professional deliverables based upon those results.

The functional difference between an employee crew and a contract crew can range from huge to nil. The key lies in the implementation of "responsible charge," not in the business arrangement. With Board Rule 404.2(a)(3) essentially blessing satellite crews, I don't believe a complaint based on §8726 could be sustained with regard to a contract crew.

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[B.D.Ide]

Sounds like bargain shopping to me. They call themselves a "Surveying and Mapping" firm, and the way I read it, they require a PLS. So.. I guess they're just not ready to hire employees and pay benefits until this "recovery" actually happens. Pretty hard to come up with an hourly rate for this arrangement.

[Stephen Johnson]

QUOTE=Woodcutter
It seems that this is pretty black and white, but I suppose I should know better than to assume anything associated with surveying is black and white. QUOTE

Yes, you should. As should we all.

[Jim Frame]

"I would be interested in hearing the board's opinion on this prevalent practice. "

Is it really prevalent? I don't know of any firms in my area that use contract crews, though the business climate has changed so much in recent years that it may be something that's gained traction without my awareness. I personally can't imagine doing it, but then I prefer doing everything myself, sometimes to the detriment of efficiency (and profit!).

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[dmi]

How would one be effective in a range between San Jose to Sacramento?

Way to much windshield time if anyone asks.

[surveysays]

Prevalent enough that 3 different advertisements have come up on this board this last year. See posts by "surveysays" and "pls5528".

If you wanted a legal opinion, personally I would contact a qualified licensed attorney. Not a land surveyor. But that's just me....

[7702]

I had an interesting experience once dealing with a firm that appeared to be practicing land surveying without a license. When I asked the party chief who the responsible ls was he told me that they had an LS (who actually lived out state) working for them. When I contacted said LS, he said it was the other way around-- the unlicensed firm worked for him!

What a tangled web we weave when first we practice to deceive.

[LA Stevens]

Jeff Lucas, PLS, Esq wrote a recent article on this in July or August POB.



http://www.pobonline.com/Articles/Colum ... 0001079839

[land butcher]

"then he's offering land surveying services without a license, and he's in trouble with BPELSG."

and they would do what?

[Jim Frame]

"and they would do what?"

I don't know what they *would* do, but I know what they *can* do: issue an administrative fine of up to $5,000.00. (See CA Code of Regulations, Title 16, Division 5, §472 et seq.)

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[land butcher]

"and they would do what?"

I don't know what they *would* do, but I know what they *can* do: issue an administrative fine of up to $5,000.00. (See CA Code of Regulations, Title 16, Division 5, §472 et seq.)

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And the last time they anything close to that was........

[Jim Frame]

"And the last time they anything close to that was........"

Well, that's hard to say offhand, because BPELSG hasn't updated the enforcement actions web postings since June of 2007 due to budget cuts. However, I see that they issued 23 citations, ranging between $250 and $4000, for unlicensed practice between 1998 and 2005. Most of these were for engineering violations, but there were a couple of faux land surveyors in the mix as well.

They also show a dozen criminal actions for unlicensed practice, mostly in the '90s, but some as recent as 2003.

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[Ian Wilson]

Game, Set, Match to Jim.

Sorry, Tom. Better luck next time.

[Anthony Maffia]

Administrator,
Please move the thread from the "Employment Hotline" forum to "General Discussion." This thread, while interesting, is not related to job search, but is about licensure and business practices.
Thank you.

[Stephen Johnson]

That guy should not be walking the streets, much less running a surveying business.

[Jim Frame]

"Actually the board has provided the '07 to present enforcement actions."

Are they on the BPELSG website? I wasn't able to find them.

With regard to the posted file: I especially like the part where Respondent states that "I have since changed and turned my life around 360 degrees."

Though Respondent did plenty to get himself into hot water, there were a couple of matters in the decision that I question:

1. Respondent was gigged for unlicensed practice because he signed a contract to provide land surveying services. The contract was between the client and Compass Consulting, Inc., which had an LS as an officer and an Organization Record on file documenting same. It seems to me that Respondent, as an officer of the corporation himself, was entitled to obligate the corporation to provide professional services even though he wasn't licensed. I think he got a bum rap on that charge. How many of the big engineering firms have the supervising LS sign contracts?

2. Ric Moore stated that a draft Record of Survey submitted to the County Surveyor for checking should be stamped and signed but marked "draft" or "preliminary." Respondent's consultant concurred, saying that submitting without signature and seal is "not a common practice." I've never signed and sealed a draft ROS submittal, nor have I ever been asked to do so by any of the counties in which I've worked. In my view, a draft ROS submittal is a document-in-progress for review and discussion between licensed professionals. Since it is not available to the public, the sig/seal requirement doesn't apply.


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[Jim Frame]

Whoops! I saw all the "last updated 2007" and missed the very first one: "since 2006." These all appear to be actions taken against licensees, though. I didn't see any for unlicensed practice. I wonder if they're published somewhere else.

Thanks.

[Stephen Johnson]

With regard to the posted file: I especially like the part where Respondent states that "I have since changed and turned my life around 360 degrees."

Though Respondent did plenty to get himself into hot water, there were a couple of matters in the decision that I question:

1. Respondent was gigged for unlicensed practice because he signed a contract to provide land surveying services. The contract was between the client and Compass Consulting, Inc., which had an LS as an officer and an Organization Record on file documenting same. It seems to me that Respondent, as an officer of the corporation himself, was entitled to obligate the corporation to provide professional services even though he wasn't licensed. I think he got a bum rap on that charge. How many of the big engineering firms have the supervising LS sign contracts?

2. Ric Moore stated that a draft Record of Survey submitted to the County Surveyor for checking should be stamped and signed but marked "draft" or "preliminary." Respondent's consultant concurred, saying that submitting without signature and seal is "not a common practice." I've never signed and sealed a draft ROS submittal, nor have I ever been asked to do so by any of the counties in which I've worked. In my view, a draft ROS submittal is a document-in-progress for review and discussion between licensed professionals. Since it is not available to the public, the sig/seal requirement doesn't apply.


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Though obviously dealing with a @#$)*&, I agree with Jim about the contracts and the ROS. Those were not violations and were just the board "Piling On".

I submitted ROS to the county before I was registered on the behalf of the registrant for whom I worked and I do not remember sending in a single signed/sealed plat until everything was considered ready for recording. I know I personally didn't submit a signed/sealed tract/parcel map until it was ready for recording. And I won't submit one until it is ready to record.

I have had that argument with an unregistered underling at the CS office before. The CS set the underling straight.

[pls7809]

2. Ric Moore stated that a draft Record of Survey submitted to the County Surveyor for checking should be stamped and signed but marked "draft" or "preliminary." Respondent's consultant concurred, saying that submitting without signature and seal is "not a common practice." I've never signed and sealed a draft ROS submittal, nor have I ever been asked to do so by any of the counties in which I've worked. In my view, a draft ROS submittal is a document-in-progress for review and discussion between licensed professionals. Since it is not available to the public, the sig/seal requirement doesn't apply.


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Jim,

I agree with this view.

In So Cal there are a couple of Counties that require signature and seal for first submittal (Orange and San Bernardino) that I know of. The reasoning being that even though it is not in the final form, when submitted, the map should be ready for recording, they are just making sure it complies with laws. What I do is sign and seal, but put a big red "PRELIMINARY" stamp across my seal and signature and on all subsequent pages, if necessary.

LS Act 8761(b) says, "All maps, plats, ... and shall include his name and license number.
8761(c) says, "Interim maps, plats, ...shall include a notation as to the intended purpose of the (document), such as "preliminary" or "for examination only."
8761(d) says "All final maps, plats, ...shall bear the signature and seal or stamp of the licensee and the date of signing and sealing or stamping."

But you have Board Rules 412(g), which says, "All maps, plats,...shall be signed and sealed in accordance with the requirements of the (PLS) Act and any other laws relating to the practice of professional land surveying..."

412(g), since it refers to the PLS act, I believe yeilds to the PLS act in this regard. The PLS Act allows for interim documents without signature and seal, IMO.

But, I decided to pick my battles and just sign and stamp and put the big red mark on there until it is a final document.

[surveysays]

Upon reviewing the Boards website I have been unable to find any actions taken against a licenced surveyor for hiring and paying his unlicenced party chief / survey crew as a 1099 employee. Nor can I find any actions taken against said 1099 survey crew party chiefs for practicing or offering to practice land surveying without a licence based upon the way they were paid by the licenced surveyor.

Just being paid as a 1099 misc employee doesn’t establish you as owning a company that is offering to practice land surveying without a licence. As others have mentioned that violates the IRS codes. It doesn’t violate the Labor Board. The Labor Board has no code that says you can not be misidentified as an independent contractor when you are really an employee.

If you notice from the link being discussed. What established this guy as practicing without a licence was many factors such as the lack of oversight in him preparing contracts without the signature of the licenced surveyor. His previous business that clearly offered land surveying without a licence. Having a new named business with business cards expressing what land survey services being offered without the licenced surveyors name and LS number on them. Being paid directly by the client, although that maybe a bit flimsy being the licenced surveyor was a part owner in the new company. But I can see why the Board took that as more evidence to his practicing without a licence given all the other stuff that went on.

I think the Board would be very hard pressed to prove a party chief who is paid by a licenced surveyor as a 1099 employee is offering to practice land surveying without a licence. Based solely on the 1099 as evidence to such.