Judge blows up board standard of care, combination thread

[DWoolley]

Copied from a job posting for a carpenter in San Diego:

"Candidates will be subject to a pre-employment drug screen/physical and must be able to provide proof of eligibility to work in the United States upon an offer of employment and/or hired.

Responsibilities

1. Verifying and transferring of Surveyor Controls and Gridlines
2. Verifying and Transferring of Benchmark Elevations
3. Layout of Concrete locations I.E. Columns, Walls, Slab Edges
4. Layout of Concrete Elevations
5. Layout of Concrete Footing and Foundations
6. Layout of Embeds and Anchor Bolts
7. Layout for rebar template
8. Performing As-builts of all Items listed above

[Note: The carpenters can and will stake out anything from a CAD file. They limit the scope in the advertisement so as not to draw the ire of Operating Engineers or the Laborers. It has nothing to do with licensed land surveying or the legal responsibilities. They have no reason to care.]

Qualifications

1. Must Have 5 years minimum of previous layout experience
2. Can read and Understand blueprints at an advanced level
3. Must know elevations and be able to convert to Decimal parts per foot.
4. High Rise Experience preferred
5. Must know how to use the Following Instruments:
- Total Station (Robotic and Traditional)
- Builders Level
- Theodolite/Transit
- Horizontal Laser
- Vertical Laser
6. Must be familiar with Navigating Construction apps on an iPad, such as PlanGrid, Procore, ETC.
7. Excellent communication skills and ability to work with others.
8. Must be able to multi-task.
9. Walking/standing/bending for long periods of time.
9. Must be able to work weekends and overtime.
10. Required to pass pre-employment drug/physical and background check."

[Bold added.]

For the unacquainted, "performing as-builts" is mapping. I understand the forum crowd will say "they cannot do that!" - well, they just did, again. I suspect the carpenters are unconcerned with 8726 of the PLSA.

Last week, we turned over our horizontal and vertical control for a large construction site. We included some hot practice tips with our coordinates as to the accuracy limitations of RTK, confirm US survey feet in their controllers (not International feet), check the joins, check three known points before staking, etc. I do not expect we will see that project site again.

DWoolley

[hellsangle]

Well .. . shame on the surveyor that answers that ad !

(unfortunately, they'll find some whore!)

Thanks, Dave!

[David Kendall]

For the unacquainted, "performing as-builts" is mapping. I understand the forum crowd will say "they cannot do that!" - well, they just did, again. I suspect the carpenters are unconcerned with 8726 of the PLSA.

I feel like you and I have been having this same conversation over and over for the last decade. Please, for the love of God, take off the clown shoes. Unless there is a parcel boundary in there the practice you describe is called construction layout and has been performed by field engineers for a couple of hundred years, all over America, at an acceptable rate of success. At most this is a marginal infringement on BPC 6731 but it is hardly land surveying, whether they are using a chalk line or Trimbling. I find your outrage to be passionate and dramatic but unconvincing

[DWoolley]

For the unacquainted, "performing as-builts" is mapping. I understand the forum crowd will say "they cannot do that!" - well, they just did, again. I suspect the carpenters are unconcerned with 8726 of the PLSA.

I feel like you and I have been having this same conversation over and over for the last decade. Please, for the love of God, take off the clown shoes. Unless there is a parcel boundary in there the practice you describe is called construction layout and has been performed by field engineers for a couple of hundred years, all over America, at an acceptable rate of success. At most this is a marginal infringement on BPC 6731 but it is hardly land surveying, whether they are using a chalk line or Trimbling. I find your outrage to be passionate and dramatic but unconvincing

Specifically, what does the following reference/pertain to?

California Code, Business and Professions Code - BPC § 8726

(a) 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:

(1) Locates, relocates, establishes, reestablishes, or retraces the alignment or elevation for any of the fixed works embraced within the practice of civil engineering, as described in Section 6731.
[I do not read "parcel boundary" here.]

(2) Determines the configuration or contour of the earth's surface, or the position of fixed objects above, on, or below the surface of the earth by applying the principles of mathematics or photogrammetry.
[I do not read "parcel boundary" here. Is this as-built surveying?]

The "construction layout and has been performed by field engineers for a couple of hundred years". I have seen a marked difference in the practice in the last thirty years. Apparently, my experience is unique to me, accepted with apologies for having inconvenienced you. I appreciate your complete and firm understanding of the practice history, the law, coupled with your patience and willingness to provide the land surveying authority.

Graciously,

DWoolley

[DWoolley]

Well .. . shame on the surveyor that answers that ad !

(unfortunately, they'll find some whore!)

Thanks, Dave!

Phil, these are not actually "surveyors" in the sense you're referencing. These carpenters are trained differently - in some ways better- from the private "field only", er, "land surveyors". Similar to the generic private field only folks, they do not have an LSIT and presumably, could not pass the test. However, notice the emphasis on communication, advanced plan reading and software knowledge requirements? Locally, Operating Engineers does not use email - Procore is out of the question. I believe these carpenter folks are hired and trained to be management material- not career chainman doing bong rips in their parents garage at 30+ and generally, ungrateful their relative gave them a job with zero requirements to obtain an LSIT.

DWoolley

[Mike Mueller]

California Code, Business and Professions Code - BPC § 8726

(a) 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:

(1) Locates, relocates, establishes, reestablishes, or retraces the alignment or elevation for any of the fixed works embraced within the practice of civil engineering, as described in Section 6731.
[I do not read "parcel boundary" here.]

(2) Determines the configuration or contour of the earth's surface, or the position of fixed objects above, on, or below the surface of the earth by applying the principles of mathematics or photogrammetry.

Here is the 1941 version of that section:
8726. A person 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:
(a) Locates, relocates, establishes, reestablish, or retraces any property line or boundary of any parcel of land or any road, right of way, easement, alignment or elevation for any of the fixed works embraced within the practice of civil engineering, as described in Chapter 7, Division 3 of this code.
(b) Makes any survey for the subdivision or resubdivision of any tract of land.
(c) By the use of the principles of land surveying determines the position for any monument or reference point which marks a property line, boundary or corner, or sets, resets or replaces any such monument or reference point.
(d) Determines the configuration of contour of the earth's surface or the position of fixed objects thereon or related thereto, by means of measuring lines and angles and applying the principles of trigonometry.
(e) Geodetic or cadastral surveying.
(f) Determines the information shown or to be shown on any map or document prepared for furnished in connection with any one or more of the functions described in subsections (a), (b), (c), (d) and (e).

I see mostly the same description, all of which used to be protected by technical barriers AND legal barriers. Now because of better tools, it is only protected by legal barriers. I don't know about you, but most people I have experience with do not follow laws since few(if any?) know all the laws that govern them. For most people their decision making generally goes (in order of how common it is) like this:
Do what they were taught
Do what they can get away with
Do what is right morally/ethically
Do what is legal

I know personally that if I have to choose, I will generally choose right over legal. Change what your highest goal is, or what your moral compass deems "good", and an entirely different set of behaviors becomes "correct", regardless of what the law says.

The reason I bring this up is that I do not think it is going to help our profession to rail against what is very common. Its like surfing(or anything water related) fighting the flow generally doesn't do much. Its better to see where its going and work within those parameters. California is a unicorn in terms of calling layout/construction staking "surveying" as far as I have heard here and elsewhere. Using laws to go after 100's of thousands of people's livlihoods for the sake of a couple thousand does not sound like good governance to me.

I would rather prepare coherent reasons for why boundary work should stay surveying and diplomatically recognize changes in society and technology. If we as a profession say "NO NO NO" to change and progress, we might win for another decade or two, but if the real fear is deregulation, than trying to hang on to construction staking might just be a pyrrhic victory.

Mikey Mueller, PLS 9076
Sonoma County

[David Kendall]

I believe it depends on the point of reference. Measurements (horizontal or vertical) relative to an intangible datum or parcel boundary could be considered land surveying. Relative to another fixed work it is called measuring. Mr Sweet Tea are you advocating for licensed surveyors to lay out anchor bolts and count rebars? I have seen this done and I have done it myself, (not since I became licensed) and I generally consider it to be an unnecessary level of oversight. I remain unconvinced that this is a problem. -yrstruly

[LS_8750]

That is one hell of a carpenter who meets those qualifications. The survey equipment is just another set of tools in the belt.

There are some initial portions of construction layout that would fall within 8726 and/or 6731.1. Job site setup, establishing horizontal and vertical control. Beyond that Cletus can do his own thing with whatever tools he wishes to use.

A lot of specs say certifications are required. Call us then. Or not.

[Mike Mueller]

That is one hell of a carpenter who meets those qualifications. The survey equipment is just another set of tools in the belt.

Still chuckling 5 minutes after reading that. Thanks for a nice lunch lift me up Clark :)

Mikey Mueller, PLS 9076
Sonoma County

[DWoolley]

An eleven page report was presented at yesterday's Underground Safety Board meeting that included the following:

"SUMMARY

The Underground Safety Board asked staff to quantify the potential magnitude of costs to operators if it were to adopt a map-accuracy regulation. Such a regulation could require that operators be certain of their buried assets’ locations within a few inches, or it could require operators to collect location coordinates using high-accuracy satellite-signal receivers while the new subsurface installation is still exposed. The magnitude of cost impacts will vary widely among different operators with different resources available. Staff recommends the Board engage operators, locators, and excavators on their opinions about a regulation’s potential costs and discuss whether they want operators’ maps to become more accurate than the tolerance-zone measurements defined in the Dig Safe Act, and if they prefer map accuracy be defined as a measurable accuracy goal."

The "operators, locators, and excavators" will likely adopt mapping accuracy standards. Ironic.

DWoolley

[hellsangle]

Answer: Let's kick the can down the road . . .

[DWoolley]

Answer: Let's kick the can down the road . . .

When you say "Let's" [let us] I presume you mean land surveyors. I do not think land surveyors are part of their equation - it is not our can to kick.

These folks are building GIS systems that will include as-built mapping their new infrastructure/facilities on SPC. The underground folks are peculiarly different to that which I have become accustomed to professionally (feet don't fail me now!), they are interested in creating laws/regulations that define their industry (which will soon include more measuring and mapping), following their existing laws and creating education programs with certifications for their community to better protect the public. A refreshing dichotomy.

And you're welcome, I gave you a glimpse behind the "sky is falling" deregulation curtain. Please do not bother reciting to me 8726 (a) (1), (2), (6) (A), (7), (13), and/or (14) or the PRC - those are land surveying laws. GPRS and similar firms do not care. https://forums.californiasurveyors.org/ ... php?t=9591

See you in the funny papers.

DWoolley

[LS_8750]

So is 8726 like a speed limit sign?

[DWoolley]

So is 8726 like a speed limit sign?

I do not know how to answer this question.

The "guilty of a misdemeanor" in the Business and Professions Code is unlikely to ever be charged. Look around, crime in California today is as common and accepted as sunshine. We have land surveyors on this forum that openly state they do not concern themselves with legalities.

I think 8726 was written to technically define the practice of land surveying which was intended to protect the public from folks offering the specific professional services to an unwitting consumer. It was something I now call "old world thinking". I was myopic, naive in my belief in the value of land surveying to society.

UPDATE:

In a previous post I mentioned the carpenters and/or laborers are capable and offering to do the construction staking and performing as-built mapping locations for underground and other related fixed works on projects. I gave the contractor's project manager our control values in early July with a few tips on the use of control i.e. always check two points for horizontal and vertical value confirmation. When a "survey" (old world 8726) request comes in, I have been providing the superintendent with "field packages" that we would normally prepare for our own crews. The last request was to stake the boundary. They didn't even pause for a second when I sent them the staking package. Aiding and abetting unlicensed practice? I do not think so. I am licensed, my work product is signed and sealed. They don't make rules for tools. Are the dinosaurs feeling that cool arctic breeze? Boo! The sky is falling.

Smart money says I will not physically see that job site again. I believe my point was proven to the BA for Local 12 that unequivocally stated "carpenters and laborers CAN'T do that work!". Lol, they just did.

DWoolley

[DWoolley]

According to the allegations, the land surveyor was performing two monument tangos to establish and monument property boundaries. In the defense, a land surveyor was testifying in court that there are local standards of care.

Q: Is it your opinion that each county has its own separate standard of care?
A: I think that is a correct statement.
Q: If each county has its own standard of care, why does the board [BPLESG] exist in your opinion?
A: The board's role in my opinion is not to enforce a standard of care that is knows nothing about in a county that it has no experience in.
...
Q: So if I understand you correctly, you are saying there is a standard of care for Alameda County, but there is no authority that anyone has to enforce that standard?
A: I agree there is no standard of care defined for Alameda County and therefore there should be no agency defined to enforce it.
...
Q: If I understand you correctly, you are saying the Alameda County standard of care supersedes the PLS Act?
A: Well, that is an interesting question. I think that it's not really a part of the standard of care as much as a standard of practice. A standard practice has been in my experience that that is not enforced and nobody really cares.

Wild west, anything goes? It would appear so and "Nobody really cares".

Thoughts?

Spoiler: When the local practice is dirty it does not make the poor practice the standard of care. It is explained here: https://youtu.be/R935IcDMtkI

DWoolley

[jamesh1467]

Dave,

These are some pretty wild ideas. Not super practical with our systems of government, but definitely out there and entertaining for an academic debate. I think you might enjoy law school. Have you ever thought about attending?

James

[DWoolley]

John A. Benson’s land surveying fraud extended from Oregon to San Diego and easterly to neighboring states. Benson lived in San Francisco and the East Bay communities. He died of a heart attack less than 24 hours of having been released from the Alameda jail. He died in Contra Costa County and was buried in Alameda County.

The following is a reported John A. Benson conversation from a contemporary article written in May 1905 (Benson died in 1910). To set the scene, Benson was explaining to a long-time acquaintance how the land title scheme worked and the illicit role he wanted his friend to go along with for the sum of $5000.

The acquaintance says to Benson “In other words, I shall have to perjure myself not only before the notary, but over and over again in court, the Lord knows how often, to earn that five thousand dollars.”

Benson replied “Well, you needn’t put it so strongly as that”.

“But that’s the way I do put it,” said I, with rising heat, “for that’s the way it actually is.”

“But,” he [Benson] insisted, “it’s the regular thing. Applications and affidavits are filed every day for the benefit of men who are acquiring thousands of acres, and most that is generally paid is one hundred dollars an entry. The reason why we are willing to pay more in this case is that the land is of high value, and we can’t afford to let a common dummy act for us.”

I bowed my acknowledgement of the compliment.

“It’s done every day,” he [Benson] repeated. “They all do it. It’s a regular thing. You needn’t worry about it.”

Further describing Benson, "...while working about the Coast with transit and pole that the poor young surveyor saw the possibilities of rolling up a large fortune that awaited the touch of the cunning hand of Graft. “

I am currently recording a Benson episode of the Ten Minute Surveyor. He was a complex figure. I either have to break the 10 minute limit or create a series.

Read it again, "It's done every day. They all do it. It's a regular thing." It appears as though Benson was describing his own local standard of care.

DWoolley

[jamesh1467]

Some states require their new PLSs to take a pledge. Maybe that's the problem. Maybe we all need to take a pledge—or an oath in front of a judge.

[DWoolley]

Some states require their new PLSs to take a pledge. Maybe that's the problem. Maybe we all need to take a pledge—or an oath in front of a judge.

Benson was a United States Deputy Surveyor. He also hired several US Deputy Surveyors or they were hired on his recommendation. He was certain to have taken several oaths.

I have examined a lot of public land survey notes. It is quite common to have the people on a crew take an oath to faithfully execute their duties on the survey.

Oaths didn't work then, I sincerely doubt they'd work now.

Benson was paid $2,000,000 ($69.3M today) in contract survey work over a five year period when the average daily wage for a skilled person was $3 to $4 a day in California.

Keep in mind, California recently lost $30B in unemployment fraud and another $24B in unaccounted for money to help the homeless folks (only to see homelessness spike) and the High Speed Rail (HSR) keeps chugging along from nowhere to nowhere.

Thinking about land surveying today, thinking about Benson, try this on for size, there are about 3,500 California licensed land surveyors with approximately 1,000 of the licensees out of state. How many of these out of state licensees are sucking taxpayers money, working on California public projects, to another state? There are no qualified licensed California residents available? Or is it that only our best and brightest left the state? Or, alternatively, to quote Hamlet, is something rotten in Denmark? Nearly 30 percent of all California licensees are not camped out of state and enjoying retirement. Denmark nexus, Benson, a fugitive on the run, was extradited from Copenhagen in 1889. "Curiouser and curiouser" cried Alice.

DWoolley

[jamesh1467]

Well if oaths don't work, maybe we should all be unemployment and homeless. That sounds easier to do in california than doing a fradulent survey. Maybe thats why everyone lives out of state now?

[LS_8750]

Benson was an archetypal government stooge, worthy of a US Senate or House seat.

"And so it must be that in the armies and among every ten men there is one of more life, or more heart, or at least of more authority, who with his courage, with words and by example keeps the others firm and disposed to fight."
- Machiavelli, The Art of War

Keep up the fight.

[Mike Mueller]

Read it again, "It's done every day. They all do it. It's a regular thing." It appears as though Benson was describing his own local standard of care.
DWoolley

Correct me if I am wrong, but isn't that a statement about the homesteading process? The claim on the land is done through a "dummy" the same way the usage of "dummy corporation" is used or a series of nested LLCs in modern day shenanigans?

I have personally retraced some township lines originally run by Benson, and they were pretty good. Those lines were better than most that were done in the area (NW corner of Sonoma County). He was smart enough to do good work on the township line that would get checked by others not in his syndicate. I bring that up because I think he was a smart, ambitious guy who was running/involved with all sorts of schemes, many of which were immoral AND illegal, but I do not think he is as emblematic of Bay Area surveying as you like to assert. To me he is emblematic of the Gilded Age of our history (https://en.wikipedia.org/wiki/Gilded_Age) Quote from the opening paragraphs from Wikipedia for those that want the synopsis:

" In United States history, the Gilded Age is described as the period from about the late 1870s to the late 1890s, which occurred between the Reconstruction Era and the Progressive Era. It was named by 1920s historians after Mark Twain's 1873 novel The Gilded Age: A Tale of Today. Historians saw late 19th-century economic expansion as a time of materialistic excesses marked by widespread political corruption. (bolding mine)

It was a time of rapid economic growth, especially in the Northern and Western United States. As American wages grew much higher than those in Europe, especially for skilled workers, and industrialization demanded an increasingly skilled labor force, the period saw an influx of millions of European immigrants. The rapid expansion of industrialization led to real wage growth of 40% from 1860 to 1890 and spread across the increasing labor force. The average annual wage per industrial worker (including men, women, and children) rose from $380 in 1880 ($11,998 in 2023 dollars[1]) to $584 in 1890 ($19,126 in 2023 dollars[1]), a gain of 59%.[2] The Gilded Age was also an era of poverty,[3][4] especially in the South, and growing inequality, as millions of immigrants poured into the United States, and the high concentration of wealth became more visible and contentious.[5]"

I repeat the bolded part here:
Historians saw late 19th-century economic expansion as a time of materialistic excesses marked by widespread political corruption. Benson is not so much an indictment of surveying, rather he is/was the fall guy for an elaborate scheme run by bankers, politicians, AND some surveyors. He was big enough to look good for the papers, but small enough to not buy his way out of getting publicly named ... If I remember correctly, he was indicted with a handful of other folks, but no one was convicted due to some high priced lawyering paid for by the banks?

Mikey Mueller, PLS 9076
Sonoma County

P.S. Interesting to see a 59% increase in wages over a decade. Inflation much?

[jamesh1467]

I repeat the bolded part here:
Historians saw late 19th-century economic expansion as a time of materialistic excesses marked by widespread political corruption. Benson is not so much an indictment of surveying, rather he is/was the fall guy for an elaborate scheme run by bankers, politicians, AND some surveyors. He was big enough to look good for the papers, but small enough to not buy his way out of getting publicly named ... If I remember correctly, he was indicted with a handful of other folks, but no one was convicted due to some high priced lawyering paid for by the banks?

What Mikey!?!?! Are you saying that Benson was the scapegoat? Our prime standard of care example was potentially not even a bad person? Just like some surveyors who get board violations??? Baffling!!!!

Reconstruction was one of our best periods of economic growth, especially for surveying. Most of highway plats in Massachusetts I used came from the 1880s. They were still kicking as the main plats. That said, it all came on the backs of one of the most tragic periods in our history. I think if you ask most people whether or not they wanted a choice between the downsides of the Civil War and the upsides of reconstruction, I think most would choose to avoid the Civil War.

I don't think any individual person from the late 1800s is a good representation of the issues that were coming up. Civil engineering, we can point to one single disaster, at least in California. But surveying it was kind of a large amount of issues coming together right? People needed an occupational license to distinguish between trustworthy people and untrustworthy people. I'm sure some of you have done more than me about research for surveying, but I know for civils, the license wasn't really a big thing until the new legislation in 1947. It kind of just distinguished good vs bad engineers for a decade or so. Then, it started to become something that actually discriminated against people doing certain types of work. I assume the survey license was the same because I know California made theirs in 1891 and then the next state to make the license was Wyoming in 1907. It took a while to catch on and be an actual restriction on who could and could not do work. At least I thought so. I thought the 1933 act was the main meat on our regulatory bones so to speak. Feel free to correct me on that. I didn't verify my thoughts here; I'm just going off memory.

[Warren Smith]

Don't forget that surveying in the late 1800s in California was done by County Surveyors, who tended to be old Deputy U.S. Surveyors. They knew the systems - PLSS, Ranchos, Swamp & Overflow lands. Being elected, they knew that system as well.

[jamesh1467]

Don't forget that surveying in the late 1800s in California was done by County Surveyors, who tended to be old Deputy U.S. Surveyors. They knew the systems - PLSS, Ranchos, Swamp & Overflow lands. Being elected, they knew that system as well.

Was there a switch from elected county surveyors to licensed surveyors around the time of 1933? Or earlier? That would be an interesting piece of history and how we made that switch. Or at least why we made that switch.