Is it a violation? need answer

[TIB]

This is follow up to earlier post about contracts. Shortened to just the facts. Still looking for answer.
Clients are separate individual land/home owners wanting survey. They/them are "networking" firm advertising and offering surveying. Facts:
1. They offered surveying to clients and public.
2. Clients contacted them about surveying. They made unknown deal
3. They procured work from clients.
4. They asked me to do field work for them on behalf of their clients.(emails and phone) I agreed
5. I rendered surveying services to company at their request. I thought/assumed they had LS on staff. I didn't check and still don't know.
6. I do not have written contract with them or clients

QUESTION???? AM I IN VIOLATION OF LS ACT OR BOARD RULES???

If yes, which one (specific) and why.
Be sure to read 8759-B-4B

Thanks

TIB

[mpallamary]

I have a lot of questions and I would prefer chatting privately about them as I do not want to cause you any unintended grief.

[mpallamary]

The vast majority of Land Surveyors are unfamiliar with the California Code of Regulations. Here is an excerpt:

404.2. Responsible Charge– Professional Land Surveying.

(a) The term “responsible charge” directly relates to the extent of control a licensed land
surveyor or civil engineer legally authorized to practice land surveying (hereinafter referred to as
“legally authorized civil engineer”) is required to maintain while exercising independent control
and direction of land surveying work or services, and the land surveying decisions which can be
made only by a licensed land surveyor or legally authorized civil engineer.

(1) Extent of Control. The extent of control necessary to be in responsible charge
shall be such that the land surveyor or legally authorized civil engineer:

(A) Makes or reviews and approves the land surveying decisions defined and
described in subdivision (a)(2) below.

(B) In making or reviewing and approving the land surveying decisions,
determines the applicability of survey criteria and technical recommendations provided
by others before incorporating such criteria or recommendations.

(2) Land Surveying Decisions. The term “responsible charge” relates to land
surveying decisions within the purview of the Professional Land Surveyors’ Act.
Land surveying decisions which must be made by and are the responsibility of the land
surveyor or legally authorized civil engineer in responsible charge are those decisions concerning
permanent or temporary work which could create a hazard to life, health, property, or public
welfare, and may include, but are not limited to:

(A) Selecting the methods, procedures, and tolerances of field work.

(B) Determining calculation and adjustment methods.

(C) Determining and specifying the information to be shown on maps or
documents furnished in connection with land surveying services, including the format of
the information and the format of the maps or documents.

(D) The decisions related to the preparation of maps, plats, land surveying
reports, descriptions, and other land surveying documents furnished in connection with
the land surveying services.

(E) Reviewing the sufficiency and accuracy of the work product.

(3) Reviewing and Approving Land Surveying Decisions. In making or reviewing
and approving land surveying decisions, the land surveyor or legally authorized civil engineer
shall be physically present or shall review and approve through the use of communication
devices the land surveying decisions prior to their implementation.

(b) Responsible Charge Criteria. In order to evaluate whether a person authorized to
practice land surveying is in responsible charge, the following must be considered: The land
surveyor or legally authorized civil engineer who signs surveying documents must be capable of
answering questions asked by licensees of the Board who are fully competent and proficient by
education and experience in the field or fields of professional land surveying relevant to the
project. These questions would be relevant to the decisions made during the individual’s
participation in the project, and in sufficient detail to leave little question as to the land
surveyor’s or legally authorized civil engineer’s technical knowledge of the work performed. It is
not necessary to defend decisions as in an adversarial situation, but only to demonstrate that the
individual in responsible charge made, or reviewed and approved, them and possessed sufficient
knowledge of the project to make, or review and approve, them.
Examples of questions to be answered by the land surveyor or legally authorized civil
engineer could relate to criteria for measurement, surveying methods, analysis, and conclusions
made including, but not limited to, the retracement of government surveys, interpretation and
construction of deed descriptions, conflicts between construction drawings and actual conditions,
determination of the proper control datum and epoch, application of proportion methods and
analysis of evidence related to written and unwritten property rights. The individual shall be able
to clearly express the extent of control and how it is exercised and to demonstrate that the land
surveyor or legally authorized civil engineer is answerable within said extent of control.
(c) Successor Licensee. In situations when the professional land surveyor or legally
authorized civil engineer in responsible charge of a land surveying project is unavailable to
complete the project, a professional land surveyor or legally authorized civil engineer
(hereinafter referred to as the “successor licensee”) may assume responsible charge of the project
as long as the successor licensee exercises the extent of control and assumes responsibility for
the surveying decisions as required by subdivision (a) and meets the criteria described in
subdivision (b), as well as meeting the requirements of the Professional Land Surveyors’ Act and
Sections 411 and 415. Except as provided in Section 8761.2 of the Code, the original licensee is
not relieved of any responsibility arising from the land surveying services of which he or she was
in responsible charge.
(d) Portions of Projects. Nothing in this section prohibits a professional land surveyor or
legally authorized civil engineer from providing services for portions of or to add to or to modify
a land surveying project performed under the responsible charge of another licensee as long as
the professional land surveyor or legally authorized civil engineer exercises the requisite extent
of control and assumes responsibility for the land surveying decisions as required by subdivision
(a) and meets the criteria described in subdivision (b), as well as meeting the requirements of the
Professional Land Surveyors’ Act and Sections 411 and 415. The professional land surveyor or
legally authorized civil engineer need only be in responsible charge of the portions, additions, or
modifications or the portion of the project affected by the addition or modification and not of the
entire project. Except as provided in Section 8761.2 of the Code, the original licensee is not
relieved of any responsibility arising from the land surveying services of which he or she was in
responsible charge.
(e) The term “responsible charge” does not refer to any of the following:
(1) the concept of financial liability;
(2) management control in a hierarchy of land surveyors or legally authorized civil
engineers except as each of the individuals in the hierarchy exercises independent land surveying
judgment and thus responsible charge;
(3) such administrative and management functions as accounting, labor relations,
personnel performance standards, marketing of services, or goal setting. While a land surveyor
or legally authorized civil engineer may also have such duties in this position, it should not
enhance or decrease one’s status of being in responsible charge of the work.

[rpost]

Interesting fact: A surveyor was working as a contract employee for me the year before last. He used his own truck and equipment and set his own schedule. He had a business card with his name and business information on it.

During an audit, the State ruled that he, regardless of what I stated above, was actually an employee and needed to be on payroll. There are many factors involved in determining whether someone is an employee or contractor. Many do not make sense.

Who knows, the above described might even be TIB?

[David Kendall]

A surveyor was working as a contract employee for me the year before last. He used his own truck and equipment and set his own schedule. He had a business card with his name and business information on it.

During an audit, the State ruled that he, regardless of what I stated above, was actually an employee and needed to be on payroll. There are many factors involved in determining whether someone is an employee or contractor.

I’d like to know more about these factors. Please provide a reference if you have anything handy

[mpallamary]

The rules regarding an employee and subcontractor are readily spelled out and the tests quite simple.

For starters, make sure your agreement is in writing.

Generally speaking most times a so-called subcontractor ends up being classified as an employee in the area of surveying.

A second primary test is that the subcontractor has multiple clients - not just one. This is usually the fatal mistake.


http://smallbusiness.chron.com/differen ... 40088.html

[TIB]

mike, how can I contact you?

[mpallamary]

I sent you a couple of private messages. Do you know how to retrieve them?

[Dave Lindell]

I have always heard that the true test of whether or not someone is a subcontractor is if they have their own insurance.

[TIB]

In case I wasn't clear, I have LS since 1986 it is valid

TIB

[mpallamary]

Insurance is irrelevant.

[mpallamary]

I have attached a standard subcontractor agreement. It was prepared with legal counsel. Feel free to use it if you want. No liability is assumed with regards to its legal function.

If CLSA is willing and interested, perhaps they can circulate something like this.

[mpallamary]

Here is the form.

[mpallamary]

While we are on this theme, I have attached an article I wrote 20 years ago. It might be of interest.

[E_Page]

My answer to this thread is the same as my post made a few minutes ago in the "Contract - Shoulda Known Better" thread.

[mpallamary]

You do not need a written contract. PLSA:

8759. Written contracts
(a) A licensed land surveyor or licensed civil engineer authorized to practice land
surveying shall use a written contract when contracting to provide professional services to a
client pursuant to this chapter. The written contract shall be executed by the licensed land
surveyor or licensed civil engineer and the client or the client’s representative prior to the
licensed land surveyor or licensed civil engineer commencing work, unless the client knowingly
states in writing that work may be commenced before the contract is executed. The written
contract shall include, but not be limited to, all of the following:
(1) A description of the services to be provided to the client by the licensed land
surveyor or licensed civil engineer.
(2) A description of any basis of compensation applicable to the contract, and the
method of payment agreed upon by the parties.
(3) The name, address, and license or certificate number of the licensed land
surveyor or licensed civil engineer, and the name and address of the client.
(4) A description of the procedure that the licensed land surveyor or licensed civil
engineer and the client will use to accommodate additional services.
(5) A description of the procedure to be used by both parties to terminate the
contract.


(b) This section shall not apply to any of the following:
(1) Professional land surveying services rendered by a licensed land surveyor or
licensed civil engineer for which the client will not pay compensation.
(2) A licensed land surveyor or licensed civil engineer who has a current or prior
contractual relationship with the client to provide professional services pursuant to this
chapter, and that client has paid the licensed land surveyor or licensed civil engineer all
of the fees that are due under the contract.
(3) If the client knowingly states in writing after full disclosure of this section that a
contract which complies with the requirements of this section is not required.


(4) Professional services rendered by a licensed land surveyor or a licensed civil
engineer to any of the following:
(A) A professional engineer licensed under Chapter 7 (commencing with Section
6700).
(B) A land surveyor licensed under this chapter.


(C) An architect licensed under Chapter 3 (commencing with Section 5500).
(D) A contractor licensed under Chapter 9 (commencing with Section 7000).
(E) A geologist or a geophysicist licensed under Chapter 12.5 (commencing with
Section 7800).
(F) A manufacturing, mining, public utility, research and development, or other
industrial corporation, if the services are provided in connection with or incidental to
the products, systems, or services of that corporation or its affiliates.
(G) A public agency.
(c) “Written contract” as used in this section includes a contract that is in electronic
form.

[E_Page]

Which exception applies here Mike?

[Rob_LS]

Which exemption? - Unfortunately, probably (b) (1) Professional land surveying services rendered by a licensed land surveyor or
licensed civil engineer for which the client will not pay compensation.

[E_Page]

I don't think the law was written with the idea that the surveyor would enter into the job knowing he would get cheated out of his fee.

There was a verbal agreement for a fee. The violation occurred as soon as work commenced per that unwritten agreement. The law doesn't allow for the violation by one party to be offset or cancelled out by a different violation by the other party.

But again, depending upon whether TIB is proactive with the Board, depending on his attitude as he deals with them, and depending upon any enforcement history he might have, Board staff management might decide to exercise some discretionary leniency, in effect allowing for the broker's offense against TIB to offset his lapse on the written contract.

[Jim Frame]

The violation occurred as soon as work commenced per that unwritten agreement.

I believe that, technically, the violation occurred as soon as an oral contact was entered by the parties. But as a practical matter, I think it only occurred when a professional product was delivered to the client, because that's when ready proof of an agreement materialized.

[mpallamary]

I have since learned more about this matter and will merely observe going forward.