Complaints on old mapping projects?

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PLS7393
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Complaints on old mapping projects?

Postby PLS7393 » Wed Nov 28, 2018 11:05 am

I've been hearing more and more issues from surveyors receiving formal complaints from the Board on old surveying projects from a corner record (CR) which was filed 5+ years ago? It now appears there is a different interpretation as to when a record of survey (RS) is required, thus some complaints now requiring a RS be filed.

Is this happening up and down the entire state, and why? What truly is the purpose if a County Surveyor signed and filed a CR for compliance with subdivison (d) of Section 8765 and Sections 8773, 8773.1, and 8773.4 as described in Section 8773.2 (a). I haven't heard of any complaints being filed against the County Surveyor who examined and filed the CR that now appears to be in potential violation and the surveyor who prepared the CR is now required to prepare a RS, some 5+ yrs later. Seems like a big waste of time and funds for all.

By these action, is there truly no statue time limit where someone with a lot of time can look back at filed maps, have a different interpretation and make a complaint against someone 5-10 years later?

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Re: Complaints on old mapping projects?

Postby LS_8750 » Wed Nov 28, 2018 4:32 pm

Down with Benson!

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David Kendall
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Re: Complaints on old mapping projects?

Postby David Kendall » Thu Nov 29, 2018 7:25 am

LS_8750 wrote:Down with Benson!


https://youtu.be/wHIWlKVUF4s

What’s wrong with that?

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Re: Complaints on old mapping projects?

Postby PLS7393 » Thu Nov 29, 2018 9:31 am

After one day, 135 view and no real comments. Par for the course with this site lately, and very discouraging.
Maybe what I hear from other surveyors isn't truly happening across this state, but I doubt it.
Thought this is a "General Discussion" board, or should CLSA rename it?

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Jim Frame
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Re: Complaints on old mapping projects?

Postby Jim Frame » Thu Nov 29, 2018 11:00 am

I've not heard of a CR coming back after being filed, but I can understand how it might happen. In my experience with other professional deliverables, the scenario goes something like this: an incompetent and/or negligent licensee performs work that doesn't meet the standard of practice. He delivers his work product -- typically documented by a map of some sort -- to his client, who isn't sophisticated enough to tell that the work isn't up to par. The client turns the map over to a design team, and at some point it finds its way into the hands of an ethical practitioner who recognizes the shoddy work. That practitioner, or someone whom he alerts to the situation, files a complaint against the offending licensee. I can see a similar thing happening with a CR.

It now appears there is a different interpretation as to when a record of survey (RS) is required, thus some complaints now requiring a RS be filed.


The law is pretty clear on this matter, and any "different interpretations" have traditionally resided in the minds of those trying to cut corners. Ideas like "I didn't set any monuments, so I don't need to file a Record of Survey" and "It's just an ALTA, I don't need to file anything" have been clattering around the profession for decades, but they have no basis in the statutes. The squishiest aspect of the law is probably the concept of material discrepancy, and it looks like it's going to be with us for a long time. But I wouldn't think a CR would ever get contested over material discrepancy once the County Surveyor signs off and files it.

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Re: Complaints on old mapping projects?

Postby LS_8750 » Fri Nov 30, 2018 12:10 pm

The "squishiest aspect of the law". That's funny.

Keith, to your point about County Surveyor review....... As I am sure you have experienced the same, you can look up any corner record in Alameda, San Mateo and/or Santa Clara Counties, and likely anywhere else in the state and find corner records with found iron pipes (often tagged with no record origin or even called for on a record map) called off in preference to whatever chicken shit idea the authoring surveyor had at the time. And that is an accepted corner record. You go retrace that corner record and find harmony with the monuments the authoring surveyor called off. It would be nice if things weren't this way, but that is the world we live in.

Sounds like some private industry surveyors are dropping dimes to the complaint department for shoddy work. Is that such a bad thing?

Good grief, you wouldn't believe what is passing for corner records in the wake of these massive fires.

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Re: Complaints on old mapping projects?

Postby PLS7393 » Fri Nov 30, 2018 8:35 pm

Good grief, you wouldn't believe what is passing for corner records in the wake of these massive fires.


The fires are a definite unfortunate situation, both in Northern and Southern CA. If what you say is true about the recent corner records, its a catch 22 situation. It's good that CR's are being filed, but I am not aware of what is going on. That would be up to the surveyor and county surveyor (CS) to show the appropriate information, and I have to believe the CS has his hands full trying to keep up, so maybe they are attempting to do the right thing and fast track, yet document what was being set. I have to think there are some up north survey, setting points and not filing as the public has no knowledge what is required under our license. It still happens here in the bay area, and until they get caught, they continue. This seems (my .02) to be a better reason for a complaint, rather than finding 5+ year old maps to go after.

Ps, when did you move up north? Your online information still says your in Capitola. So you hung up the surfboard and beach to put on your boots and hills. Should have stayed at the beach, lol. Hope all is well.

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Re: Complaints on old mapping projects?

Postby DWoolley » Sat Dec 01, 2018 7:16 pm

PLS7393 wrote:I haven't heard of any complaints being filed against the County Surveyor who examined and filed the CR that now appears to be in potential violation and the surveyor who prepared the CR is now required to prepare a RS, some 5+ yrs later. Seems like a big waste of time and funds for all.

By these action, is there truly no statue time limit where someone with a lot of time can look back at filed maps, have a different interpretation and make a complaint against someone 5-10 years later?


Jim Frame is correct, the law is clear as to when a record of survey is required. Doing a dodgy survey five, ten, fifteen years ago should be corrected upon discovery.

There is no statute of limitations for a bad survey. The way out of the lifetime of liability is to surrender your license or death. This is how it should be - negligence in 1985 is negligence in 2015 - surveying, as a matter of law or in practice, has not changed in generations. There are California communities that have allowed illegal and negligent practice to exist while the honest practitioners have done nothing.

I was involved in a disputed boundary trial that lasted an entire month. This was only the first of two trials. The issues stem from a bad survey in 1989 and another in 2008. My estimate is the multiple parties are in for more than $1m through the first trial. The 1989 surveyor got lucky and has died. The 2008 surveyor testified he has 5 negligence citations from BPELSG. Their expert, backing up his 2008 survey, has eight citations. The 2008 surveyor was turned in for almost 90 no reference monuments - BPELSG gave him a pass on those monuments a few years back. Interestingly, he was not required to file any maps on the monuments he set - this is inconsistent with the regulations. Now he has cost the public $1m and three years of their life. In his deposition and in trial he appears to be unconcerned with his actions.

The County was also sued for filing the maps - including my map. The County Surveyor spent two days on the stand defending their review.

I was sued as an individual. I was turned into BPELSG. I wasn't worried about my survey, but the idea of most of the "technical experts" reviewing my work scares me more than Pennywise. They have a few technical experts that I consider qualified - they are in the minority. I cannot help but to imagine the money, time and damage to the public that would have been prevented if BPELSG had revoked his license after citation 3, 4 or 5.

Bottom line, surveyors should report all bad work to BPELSG regardless of when the work was completed. I further understand they are likely to wash the complaint. However, this does not mean we should look the other way when we see negligence - even 20 year old negligence. Let BPELSG, the Maytag of complaints, hand out the passes, not me.

Why would anything less be acceptable?

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Re: Complaints on old mapping projects?

Postby Proud7191 » Sun Dec 02, 2018 8:17 pm

Dave said “the way out a lifetime of liability is to surrender your license or death”. That is pretty big responsibility placed on the licensee. There is another way professional practice can be brought to a higher level. Quit signing references for applicants that are questionable. Make sure they understand the responsibility that goes with the license by telling them that you don’t think they are ready yet when applicatable. I think many of us are caught of guard when asked to sign for an applicant. At minimum we should sit down with the applicant and ask them some taxing questions and evaluate their answers before signing. My 2cents, Jp

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Re: Complaints on old mapping projects?

Postby DWoolley » Wed Dec 05, 2018 7:35 pm

I have questioned land surveyors signing for, ahem, less than qualified people wanting to sit for the exam. I have found there are three prevailing thoughts when signing for unqualified people:

1. They believe it is not their responsibility. They further believe, fingers crossed, the test will weed them out. I believe they do not want to have the tough conversation with a candidate.

2. They sign because they think the candidate knows more than they did when they passed the exam (what could go wrong?). The candidate's knowledge is often confused with knowledge of technology. Is land surveying a technology license? No. Arguably, technology has dumbed down the professionals enough land surveying is a good candidate for deregulation.

3. [I have to come back for this last one. I lost my train of thought.]

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Dave Lindell
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Re: Complaints on old mapping projects?

Postby Dave Lindell » Wed Dec 05, 2018 7:49 pm

3. Because your boss wants you to sign for his incompetent son/daughter?

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Re: Complaints on old mapping projects?

Postby land butcher » Mon Dec 10, 2018 2:27 pm

There is no statute of limitations for a bad survey. The way out of the lifetime of liability is to surrender your license or death. This is how it should be - negligence in 1985 is negligence in 2015


Surveying - one of the few and least harmful to the public professions that carry that burden. We need to be protected like Doctors and Hospitals are and I am not referring to E&O insurance.

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Re: Complaints on old mapping projects?

Postby E_Page » Thu Dec 13, 2018 11:46 am

The way I understand it, for civil liability, we are covered by a 3-year Statute of Limitations from the time at which negligence is discovered or should have been discovered, and a Statute of Repose of 10 years, meaning that if a source of negligence is discovered more than 10 years after the survey was performed, it's time-barred as a cause for a civil negligence suit.

Licensing liability however, goes on for as long as you have a license, and possibly for as long as you live. Arguably, that's not unreasonable, but for some reasons stated by others in this thread, it is problematic in this state. There is no means whatsoever of objectively measuring whether a BPELSG "expert" is actually qualified by training, experience, and knowledge to review the work of others. As Dave pointed out, there are many who are demonstrably unqualified, yet continue to be used by BPELSG. And as for work performed many years or decades ago, different standards and perhaps different laws may have applied at that time, but the subject licensee is often judged on that practice against today's laws and standards. Many of the "experts" do not understand the law they are supposed to apply and also quite often confuse the narrow practices they may employ in their own practice as the only legitimate way of doing something. I've seen this misguided approach used by experts on several occasions. Sometimes there are one or more alternate and perfectly valid approaches to a problem that the "expert" lacks the training, experience and professional level knowledge to recognize, and occasionally, the method that the "expert" says is the correct method, is actually in violation of law and/or basic boundary principles.

Even when the opinions in the BPELSG "expert's" report are blatantly negligent and/or clearly misstate obvious facts of the case, they are immune from any liability either civil, or license. BPELSG will not accept a complaint against an "expert" no matter how egregious the demonstrable violations might be, and they are statutorily immune from civil liability from the subject licensee, both under the laws covering expert witnesses in general, and because they are acting on behalf of the government.

Although it shouldn't be necessary, and wouldn't be necessary if those serving as experts, either for the State or for a non-government party actually has, per objective measurement, expert knowledge of the practices they are opining on and all acted with integrity in reviewing others' practices, I believe we really need legislation to mandate advanced certifications or some other manner of objective measure (other than simply years of practice) for a person to hold themselves out as peer-review experts, some level of mandated training and testing for such knowledge for anyone filling that role far a State agency, and a Statute of Repose for licensing liability. I think 15 or 20 years would be good to accommodate reasonable changes in methods, standards and laws.

I have mixed feelings about that last one. On one hand, I am uncomfortable with the idea that someone who regularly does shoddy work automatically getting off the hook as long as the shoddy work doesn't surface after the time limit for respose. But I am more uncomfortable with the idea of less than qualified experts and/or overzealous Board staff inappropriately applying standards and interpretations of law as they now exist (or as they exist only in the "expert's" opinion) to practice which occurred when the standards and even published interpretations of law by BPELSG were applicable and the practice being reviewed complied fully with the standards of the time.
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Re: Complaints on old mapping projects?

Postby land butcher » Thu Dec 13, 2018 4:22 pm

Very good Evan. It always amazes me that govt employees act like they are responsible for their decisions when in fact they are not, didn't realize it extended to "experts" connected to BPELSG.
I have seen in slow times map checkers being more picky about a map then in busy times, to justify their existence, and I suppose that would extend to BPELSG "experts" too. I have also witnessed "protect thine brother" syndrome too where a higher up may not totally agree with his subordinate but backs his opinion.
I think we are becoming a society where those in govt feel they are above the private citizen. I had a LB councilman stop, then gun it thru my closed off portion of a street because he didn't want to drive around the block to get to his parking lot. When I approached him about it, his reply was "I'M A COUNCILMAN". I replied "so what, you put my employee in danger". He said "YOU'LL FIND OUT". Within the next 45 min a city vehicle drove by and shortly later a police car but neither one stopped. He is now a State Rep.

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Re: Complaints on old mapping projects?

Postby Jim Frame » Thu Dec 13, 2018 5:57 pm

There is no means whatsoever of objectively measuring whether a BPELSG "expert" is actually qualified by training, experience, and knowledge to review the work of others.


This is a concern, and one that I had when I was doing BPELSG work. (They haven't called me for over 10 years, so maybe they decided I wasn't sufficiently qualified.) But setting up an effective program for vetting technical experts beyond the cursory 1-day training that I attended would take a pretty big effort, and funding that would be challenging.

I have also witnessed "protect thine brother" syndrome too


When I was reviewing cases I tried hard to keep an open mind. Most of the ones I handled involved clear, often egregious, violations, and my reports reflected that. Often by the time a complaint makes it all the way to a consulting expert the respondent has taken more than a few steps toward bring trouble his way, typically by refusing to admit that he did anything wrong and declining to cooperate with the complainant or the investigation. But I can recall at least one case where I found the complaint without merit and the respondent's actions appropriate, and my report stated as much.

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Re: Complaints on old mapping projects?

Postby E_Page » Fri Dec 14, 2018 5:42 pm

There likely are a few BPELSG expert opinions out there that are examples of "protect thine brother", and I know that there have been staff-level dismissals which appear very much to be such examples. But I think that there are more examples of people reviewing others' work where they don't understand the law they should be comparing the practices to, and/or don't recognize valid professional practice/opinion when it does not comport with their rigid and narrow (and sometimes entirely incorrect) idea of what constitutes valid practice in certain situations. And very unfortunately, there are individuals in positions to use the enforcement program to punish particular licensees under the guise of not meeting the "standard of practice" for reasons which apparently have absolutely nothing to do with any practice considered in the case. I am aware of one (recent) instance that was clearly a malicious prosecution of a complaint by BPELSG. A case study presentation of that one will be available at some point in the future.

I think that some "experts" believe that it's their job to find something, anything that the Board can grab on to to bust the subject licensee, regardless of how trivial the supposed violation is, and at times, even if some amount of imagination or novel interpretation of law is required to identify an act as a violation. In short, many don't seem to know what the job of being an expert is, how to properly interpret law, or how to recognize a valid practice even though it may not be what they would have decided to do in similar circumstances. Many approach review with the attitude of "if it's not what I would have done, it's wrong and therefore must be a violation of something." Those attitudes and lack of knowledge should disqualify one from serving as an expert as clearly as a conflict of interest for business or personal reasons would disqualify one from serving as an expert on a particular case. But there is no training given on these matters nor any means of measuring these things employed by BPELSG. There is also no requirement for "experts" to do anything to maintain or build on their knowledge. A couple years ago, I testified as an expert in an Administrative hearing and the BPELSG expert testified that he had not attended any continuing education of any kind, had not bought or read any publications on surveying, and engaged in no form of organized or self study on survey matters since before attaining his license in 1982. Yet he appeared with the credibility of being used as an "expert" by the state's licensing authority. Surely the licensing authority would send only the most qualified experts they could find. Wouldn't they? (No, keep reading)

Worse yet, the Executive Officer is on record as stating that the fact that someone is licensed designates them as an expert. And here I thought that the license was merely evidence of minimal competency to practice. When it comes to peer review, IMO, that's a far cry from being a true "expert". Also, nobody, not even the licensee is notified of detailed results of their exam. They might declare themselves as expert in boundary, but unknown to that licensee, they completely bombed out on the boundary portions of the exam but made up for it in high scores in other parts of the exam sufficient to drag them over the cut score (which is typically somewhere around 50% right, and sometimes less) to get licensed.


My experience as a BPELSG expert was much the same as Jim's. I took it very seriously and worked hard to ensure that none of my opinions were driven by improper bias. Most of the cases that came my way were instances of very clear violation. I recall one that came along as a one related to another I was reviewing. That second, related case was one where I didn't necessarily agree with the subject licensee's conclusions, but it was clear that he exercised proper care and a reasonable line of thinking to arrive at his conclusions.

On another, there was a significant technical mistake made in the field work. the licensee didn't make or directly cause the mistake. The crew working under the licensee's responsible charge made the mistake, and the technician in the office who processed the field data and created the map didn't review the field notes and DC file very well (possibly not at all) and prepared the map with the resulting erroneous data. The licensee himself may have been quite competent as a surveyor, but as a lesson for any of us who have others doing part or all of the technical, hands-on work under our direction... Responsible Charge means that if anyone working under your direction makes a mistake, you own it. That's true in both civil and licensing actions.

But, as in Jim's experience, for most of the cases I reviewed, the licensee need anything from a strong message that they needed to change how they approached particular aspects of practice up to and including needing their license revoked.

There was one licensee for whom I was asked to review 3 separate complaints. On one, it seemed pretty apparent that something screwy had gone on, and that there most likely were several violations, but there was insufficient info in the file to support anything more than the hunch of hinkiness. My report stated that there was insufficient evidence. In the other two for that licensee, there was clear evidence of the negligence and incompetence I suspected was present in the first case. After the 3rd case for that licensee, I told the Enforcement Analyst to NOT send me any more of his cases because I felt I had come to the point of developing an opinion of that person's overall quality of work and wasn't sure I could be fully unbiased in future reviews.

My opinions were almost always backed up with reference to one or more excerpts from widely accepted survey texts, the law, or both. I knew from the first time I was asked to review another's work that an easy trap for a reviewer to fall into was that of not recognizing valid practices which might be different from "the way I learned to do it", and another such trap being that of relying on an understanding of certain principles or laws as I was taught them at some point in the past. For one thing, I didn't want to improperly opine that someone did something wrong when what they did was merely the result of a different but valid perspective, training, or experience. Moreover, I didn't want to inadvertently put myself in a position where the attorney or expert from the other side could show that I was the one out of step with the law or proper practice.

I had naively thought that most "experts" and BPELSG staff involved in the complaint process approached viewed the process and their role with the same gravity as I viewed my role. On one side of the equation, there is usually some particular member of the public who did or potentially could suffer some harm as a result of poor practice, and the whole of the public who, if poor practice goes unrecognized and uncorrected, could be exposed to future harm. On the other side, there is the licensee, their finances, possibly their employees whose jobs could be at stake, and most importantly, the licensee's reputation at stake. An incorrect or poorly considered opinion by the expert has the potential to do great harm to one side or the other. In my opinion, if someone in a peer review position is opining outside of their area of actual expertise, or does not exercise a high level of care in preparing their opinions and report, that expert should be subject to the same level of liability as that involved in the subject case. And an expert who would deliberately misrepresent facts of the case or knowingly offer opinions which are not supported by the facts is among the lowest form of human (Pr. 6:6-9).

A few years back, I was asked by a licensee who had received a complaint which resulted in a citation to review his case. That case wiped out the naivety I previously held. In that case, the subject licensee (Surveyor "A") clearly went above and beyond the level of care that most surveyors would have exercised. The surveyor for the complainant (Surveyor "B") clearly fell far short of the minimal care a reasonably diligent surveyor would have exercised. Email correspondence obtained in discovery for the related civil suit between landowners showed that while Surveyor "A" was urging all the parties to meet and discuss the differences in the surveys, Surveyor "B" strongly urged his client to refuse the meeting and actually pushed his client to file a complaint against Surveyor "A", offering a guarantee that Surveyor "A" would be judged negligent by the Board, citing Surveyor "B's" personal friendship with a sitting Board Member.

After learning that Client "B" had filed a complaint against Surveyor "A" and the circumstances of how that complaint came about, Client "A" filed a complaint against Surveyor "B". In the process of their respective complaints, Surveyor "A" provided copies of everything he had relative to the case. Correspondence gained in discovery showed that Surveyor "B" directed his staff to withhold everything except for a few selected pieces of info and to not cooperate with Board staff beyond that.

The complaint against Surveyor "B" was dismissed after 6 or 8 weeks, even though BPELSG had copies of the correspondence showing Surveyor "B's" having steered his client toward conflict, the duplicity in his response after the complaint against Surveyor "A" was filed (i.e. "We always prefer to work these things out amicably, but you did what you felt you had to do."), and Surveyor "B's" email directing his staff to not cooperate with BPELSG.

The "expert's" report, which appeared to have been prepared for both cases, was fraught with misrepresentations of facts in many instances when doing so might support a conclusion a violation occurred and completely ignoring the existence of some of the same facts when their existence might tend to show another violation could not have occurred. The "expert" was either utterly incompetent or utterly fraudulent in explaining some of the principles involved having, in one instance, included a excerpt form a well known survey text that correctly stated the principle at issue and then proceeding with his discussion as if the principle had stated just the opposite. These flaws were beyond obvious, yet BPELSG relied on the report to issue a citation.
When I discussed the report's obvious shortcomings with a high-ranking member of BPELSG staff, the response was "Huh, he's one of our best experts." Really? Wow!

The complaint against Surveyor "A", in spite of the PPC's of two separate chapters and about a dozen individual surveyors with good reputations all sending letters or reports stating that Surveyor "A" met or exceeded all appropriate standards, was dragged out for 2 1/2 years before finally dismissing the previously issued citation, just long enough to neutralize Surveyor "A" as an effective expert in the civil action between the landowners. When I discussed this a year or two later with a high-ranking member of Board staff, and noted that the disparate way the two cases were handled affected the outcome of the civil action, the response was an uncaring and flippant "Yeah, I know. That was by design." Holy carp Batman! Isn't tampering with evidence and/or witnesses in a court action a crime?

I've since reviewed many BPELSG enforcement cases sent to me by subject licensees, members of PPC's, or other concerned parties and have seen many instances of "expert" opinions that reflected one or more of the following problems: 1) "expert" lacked sufficient technical knowledge to perform, much less review the practice being reviewed; 2) "expert" could not recognize valid practice if it differed from the way he/she had always done it; 3) "expert" lacked understanding of the applicable law and/or didn't know how to interpret law as demonstrated by adding unexpressed meaning to a statute or omitting clearly expressed meaning in a statute; 4) "expert" did not receive from BPELSG or otherwise did not review all relevant materials; 5) "expert" knowingly or unknowingly misrepresented facts of the case; and in at least 1 case 6) "expert" demonstrated clear bias against the subject licensee.

In spite of the problems I've seen, and ones for which we should all have a high level of concern, I continue to hold out hope that the majority of "experts" for BPELSG work to maintain and build on their knowledge for the areas in which they claim expertise, and strive to be thorough and fair in their review conclusions. I know several surveyors for whom I have very high levels of respect who have and perhaps continue to serve as experts for BPELSG. Unfortunately, I've seen enough examples of poor experts and poor or improper administration of the enforcement program that I feel it will take legislation and pressure from the professional societies representing various groups of BPELSG licensees to make appropriate positive changes.
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