Is This a Violation

[laveyb24]

I have come across a contract signed by a VP of a company who is a post exemption RCE. This contract is to provide an ALTA/ACSM survey along with an Aerial Topo. My question, is he working outside his license even just by offering these services? What would you do? I am sure if it was the other way around i would be in some trouble.

Thanks,

[pls7809]

This contract could fall under PE Act 6731.2. If the ALTA/NSPS Land Title Survey is being done in conjunction with a design survey and as long as a PLS or Pre-82 CE stamps and signs it, it might be okay. But if you have a question, it wouldn't hurt to ask the Board their thoughts on the matter and let them figure out if there is a violation or not.

6731.2. Authority to offer to practice or procure land surveying
Any registered civil engineer may offer to practice, procure, and offer to procure, land
surveying work incidental to his or her civil engineering practice, even though he or she is not
authorized to perform that work, provided all the land surveying work is performed by, or under
the direction of, a licensed land surveyor or registered civil engineer authorized to practice land
surveying. Further, any registered civil engineer may manage or conduct as manager, proprietor,
or agent, a civil engineering practice which offers to practice, procure, and offers to procure,
such incidental land surveying work.

[Jim Frame]

This contract could fall under PE Act 6731.2. If the ALTA/NSPS Land Title Survey is being done in conjunction with a design survey and as long as a PLS or Pre-82 CE stamps and signs it, it might be okay.

The way I read that statute, "incidental" pertains to the preponderance of work undertaken, not to a specific project. I think any licensed CE can procure surveying services as long as those aren't the focus of his/her practice.

An example of incidental: a developer client for whom the CE has done a ton of work calls and asks to have an ALTA done on a parcel he's thinking about buying. To me the ALTA is incidental to the CE's practice and can be procured without violating the statute, regardless of whether or not it ever turns into an engineering project.

[pls7809]

Good info. Thanks Jim. Those are the situations I was thinking of. An ALTA can generally lead to further CE work (and further Surveying work).

[Ric7308]

Generally speaking, only someone legally authorized to perform/provide land surveying services can execute a contract for an ALTA/NSPS Land Title Survey in California. A Civil Engineer is authorized to contract for land surveying services that are incidental to civil engineering services offered under the same contract as long as the land surveying work is performed by or under someone legally authorized to perform/provide the land surveying charge. And again, generally speaking, an ALTA boundary survey would not be considered as incidental to the engineering on a project. Any other response would require detailed information about a specific situation which may result in a different response.

[E_Page]

Whether or not it is incidental may depend on the level of detail of the survey and the typical course of business for the company. It would also depend upon the makeup and structure of the company in terms of licensees within the business.

I worked for a company that provided many ALTAs for commercial clients. We were instructed to get very detailed topo to show in the ALTA map, and which would typically be used for base map info for site design. About 80% of the time, there was some level of design subsequently done. The other 20%, the client either acquired the property and made only cosmetic or equipment upgrades that required no civil design, or they didn't go through with the acquisition.

The contracts were signed by a post-81 CE as a VP of the company. The work was done under the license of a LS employee (lesser officer, but no ownership interest). I would think that, regardless of the eventual use of the surveyed info, because the work was done under the responsible charge of a LS within the company, there would be no violation by virtue of the CE signing the contract. Likewise, if the CE had an ongoing working relationship with an LS to whom he subcontracted all survey work to, I would think there is no violation.

The incidental work provision goes both ways, a CE contracting to provide survey work or a LS contracting to provide CE work. I'm having a difficult time trying to think of CE work that would have as tight a nexus to survey work as Ric describes in order to be considered "incidental".

If there is no previous or ongoing work history between the client and the CE, no or very little likelihood of engineering work coming from the project, and no in-house LS or ongoing subcontracting relationship with a LS, then I think the CE would be skating on the wrong side of the line.

[Jim Frame]

Generally speaking, only someone legally authorized to perform/provide land surveying services can execute a contract for an ALTA/NSPS Land Title Survey in California.

Ric, have there been any enforcement actions or legal cases supporting this interpretation? Because I'm not seeing the public policy behind it. Why is it okay for a CE to contract for surveying services in one instance, but not in another? BPELSG has invested considerable trust in his ability to protect the public by virtue of granting him an engineering license, but you appear to be saying that they only trust him to procure land surveying services if he touches the project his magic design wand.

I think a court would not look favorably on such a distinction.

[William Magee]

It would be good to know if there has been a precedent setting decision or at minimum a precedent setting opinion (LCO or AGO) on the interpretation of "incidental to one's practice". Without such precedence it would appear the statute is missing a bright line litmus test as to whether "incidental" is to one's practice as a whole or if it is more narrowly defined as being project specific.
In absence of the level of decision or opinion to be considered as precedence setting, it would be encouraging for either such an opinion to be requested or a statutory clarification be undertaken.