AB5 and CLSA

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 2:08 am

“Professional stature cannot be attained by self-proclamation. The lazy say, ‘give me the prize without the training, the wages without work, the reward without the quest, heaven without probation, a profession’s prestige without a profession’s skill.’ If the land surveyor is to have professional standing, that standing must be earned and bestowed upon him by others.”

- Curtis M. Brown, Professional Land Surveyor

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 2:10 am

I think of boundary surveying as including many technical levels and also a professional level. We must distinguish among the chainman, instrument man, technician, and the professional surveyor. The doctors have laboratory assistants who are called technicians, not doctors. Unfortunately, the professional surveyor has many assistants who are often thought of and are considered by many to be surveyors.
Many people have attempted to define the word “profession.” Like all good words it has been overworked and extended to apply to such words as “professional boxer” and “professional soldier.” A similar situation exists with the word “engineer” as adopted by the A. F. of L. in their “operating engineers” union. The better term would have been “engine operators,” since that is what they are.

When I speak of the professions I mean the higher sense, such as lawyer, clergy, doctors, and educators. To be a professional man certain requisites are often present, among them:

(1) Superior knowledge in his field;
(2) Ability to express learned opinions
(3) Remuneration for his services;
(4) Liability for errors.

Thus the attorney listens to his client, gathers all available facts, and from his superior knowledge of law expresses an opinion on what to do. For his effort, he collects a fee. And upon occasions he can be held liable for his mistakes. The doctor makes measurements, observations and tests on his patient, and from these observations, combined with his superior knowledge of medicine, he expresses an opinion on the type of treatment to be followed. A fee is charged. And for neglect in his duties he can be held liable.

The property surveyor is given a deed and told to mark it on the ground. He makes measurements, observations and sets markers in accordance with his opinion, and he charges a fee. The only correct location for a boundary line is in that position that a court of competent jurisdiction will uphold. Thus in setting his property marks the surveyor is giving his opinion of where he thinks the court would uphold him. It takes superior knowledge to know where and how to set property lines. And if the surveyor fails to set his boundaries in that position that a reasonably prudent surveyor would, he must pay the damages. He is a professional man.

Let us contrast the professional surveyor with the average surveyor as the engineer knows him. On highway work the engineer in charge has surveyors who make measurements to determine the shape of the ground. They are merely measuring the ground as it exists and recording the facts, as they are. To be sure, the surveyor must have superior ability in knowing how to use instruments and how to make measurements, but this is purely technical. He does not design the road nor does he utilize his measurements. Again the engineer may tell the surveyor to grade stake .a road in accordance with a. given plan. Since no design or judgment is involved, it is a purely technical matter. To the average engineer the surveyor is a technician who carries out his orders. And often he is just that. But the engineers frequently overlook the fact that there is a professional surveyor’s level.


- Curtis M. Brown, Professional Land Surveyor

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 2:12 am

Professional standing must be earned; it cannot be attained by self proclamation. The standing of land surveyors in this country must rise or fall with the quality of its members. If the public thinks that land surveyors as a group have superior knowledge, have professional behavior, and deserve to be considered professional people, only then will they be such.

- Curtis M. Brown, Professional Land Surveyor

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 2:19 am

Definition of a Profession.

I have no intention of trying to pinpoint a definition of what constitutes a profession; even the experts have varied opinions. To make matters worse, there are two definitions - one broad and one restricted. Quotations from a few cases at law will help us understand the meaning.

From State v. Cohn (184 LA 53) is quoted, “Very generally the term ‘profession’ is employed as referring to a calling in which one professes to have acquired some special knowledge, used by way of instructing, guiding, or advising others or of serving them in some art. Formerly theology, law, and medicine were specifically known as ‘the professions,’ but, as the applications of science and learning are extended to other departments of affairs, other vocations also received the name. The word ‘profession’ is a practical dealing with affairs as distinguished from mere study or investigation; and an application of such knowledge for others as a vocation, as distinguished from the pursuits for its own purposes.”

While research in science is certainly a learned occupation requiring special knowledge, it certainly is not a profession. A profession deals with the affairs of others; it aids others; it does not merely seek knowledge for the sake of gaining knowledge.

From 107 S.W. 555 is quoted, “The word ‘profession’ in its larger meaning, means occupation, that is, if not industrial, mechanical, agricultural, or the like, to whatever one devotes oneself; the business which one professes to understand and follow. In a restricted sense it only applies to the learned professions.”

One last quotation is from Stiner v. Yelle (174 Wash 402) and it apparently refers to the higher type of profession. “A ‘Profession’ is not a money-getting business. It has no element of commercialism in it. True, the professional man seeks to live by what he earns, but his main purpose and desire is to be of service to those who seek his aid and to the community of which he is a necessary part. In some instances, where the recipient is able to respond, seemingly large fees may be paid, but to others unable to pay adequately, or at all, the professional service is usually cheerfully rendered.”

From this, it is obvious that in a broad sense “profession” includes many fields such as college professors, engineers, professional boxers, and surveyors, all with varying degrees of qualifications. In a narrow sense there are only three professions, the learned professions of theology, law, and medicine.

Land surveying to me is a profession; my only question is one of classification of standing. I am not so naive as to believe that we, at the present time and in the opinion of others, are anywhere near equal in stature with the three learned professions, but I do believe that by sustained effort we can achieve a standing comparable to the learned professions.

Attributes of a Profession.

Most surveyors have sufficient ego to want to measure up to the three learned professions rather than to measure down to those of doubtful standing whose only claim to fame may be by self proclamation. If the surveyor is to compare with the learned professions, he must approach the attributes of those professions and some of those attributes are:

1. Superior education in a field of knowledge.

2. Service to the public.

3. The possibility of gaining highest eminence without necessarily earning much money.

4. Providing services to those unable to pay.

5. Independent judgment and liability as a result of that judgment.

6. Ethics.

7. If fees are charged those able to pay, fees are dependent upon knowledge rather than labor or product.

Without question, superior education in a field of knowledge is an essential feature of a profession, and there is little question but what a good professional land surveyor should have superior knowledge in a specialized field. Some individual land surveyors, by self-effort or by formal training in colleges, are well educated, but, as compared to the learned professions, are surveyors required to have an equivalent amount of knowledge? How many licensed practicing surveyors have the benefit of a college degree as compared to the doctors, attorneys, and clergy? Proof of the simplicity of our knowledge requirements can be had by looking at the past surveyor examinations administered in many states. In a number of states no registration or examination is needed; in others the examination is so simplified that even the flunky, 3rd grade, could make a good showing. No wonder many look askance at our profession. The standing of all surveyors as a professional group will suffer unless we as a whole raise our requirements.

Experience is never a complete substitute for education. It augments education, but can never supplant education. Education, of course, can be attained either formally at college or self taught at home. Whichever way it may be gained, there is no reason for allowing a professional surveyor to be registered without having superior knowledge. Without superior knowledge, we have an inferior profession.
Man’s knowledge in itself does not make a profession; man must use knowledge to aid, assist, teach, or benefit others. Application of knowledge to the affairs of others is an essential part of the definition of a profession.
The process of acquiring knowledge and the process of application of knowledge are distinctly different. Parrots can memorize a vocabulary of sorts, but who has ever observed a parrot with the ability to tell another of his needs? The knowledge and experience of a professional man combined with his ability to reason and arrive at a solution to a problem is why others seek his advice. The success or failure of each of us is, in a measure, due to our reasoning ability.

In the learned professions the professional man has a call of duty beyond that of a fee. The doctors are obligated to serve the sick regardless of ability to pay; the clergy do not turn away those in trouble; the attorneys defend the criminal. However, it is noted that the doctors and attorneys do charge a fee and those able to pay, must pay. This is as it ought to be.

The land surveyor does not display this type of obligation. It is doubtful if many surveyors would willingly serve those incapable of paying the required fee. Land surveying is not an urgent necessity; if it is not done today, it can be done tomorrow. If a person cannot pay today, his survey can wait until tomorrow. Attorneys more or less adopt this attitude for services in connection with business matters.

The surveyor does have moral obligations to the public and among them is the duty to never subtract from the rights of adjoins. Every boundary survey for a client establishes the boundary of an adjoined. One of the reasons for giving surveyors the exclusive privilege of marking boundaries is to prevent the unskilled from monumenting lines that encroach on the bona fide rights of others. As an obligation to the public, the surveyor should not, in any way, assist a client in acquiring rights to land that are not his to enjoy.

Any surveyor can attain eminence without necessarily earning much money. In your own area, what do other surveyors and the public think of you? Do they consider you ethical? Do they seek you out for advice? Have you contributed anything to the surveying profession, or do you just sit back and let others advance the profession? Is earning a dollar by any means more important than maintaining a principle? Will you sell your signature? Do you aid others in evading the licensing act? Do you degrade your fellow land surveyors? Have you actively pushed the cause of all surveyors or do you selfishly only look out for yourself? Are you active in your professional society? Have you had articles published in a professional surveyor’s magazine? Do you serve on committees? Or, do you just sit back on your prerogatives? One of the first duties of a professional man is to advance his profession. These questions serve to evaluate you. It is only by the concerted effort of all, which we as a group will advance to an unquestioned professional stature. In every community we find those that are substandard and those that have attained eminence. Which are you?

Attorneys and doctors charge a fee, which is not dependent upon the physical labor or force applied. Personal knowledge gained through education and experience creates the demand for the service rather than the size of the muscle on the arm. Contracting is for businessmen actively competing on the basis of the lowest cost or the lowest bid. The moment services are based upon the lowest price, a profession has reduced itself to a business. Service based upon superior knowledge is the foundation of the fee of a professional. Are you a member of a profession, or are you a businessman?

Many individuals in the matter of fees have attained professional standing. From the complaints I have heard in various meetings, I can only assume that, as a group, on the average, surveyors have not attained professional stature in their methods of charging fees.
Money, in itself, does not enter into the definition of a profession, but it does have a profound influence on what others think of a profession. Members of a group that show by their outward appearances that they are not successful in handling their own financial affairs can hardly instill confidence in the public. A person who uses antiquated equipment and the back room of his house as an office is not likely to contribute to professional standing.

Success breeds success. Outward appearances do count. They are a part of the overall picture.

Ethics is that branch of moral science, which treats of the duties that a member of a profession owes to the public, to his professional brethren, and to his client. Without ethics, land surveying can never be a profession.

Everyone is familiar with the fact that an individual may strictly observe the laws of the land and yet be an undesirable citizen and a poor neighbor. Lord Moulton in an article in the Atlantic Monthly (134 Atlantic Monthly 1, 13, 1924) stated, “The real greatness of a nation, its true civilization, is measured by the extent of Obedience to the Unenforceable.” Ethics are often unenforceable. True professional stature arises from obedience to the unenforceable.

Advocating observances of ethics is not sufficient; the surveyor’s personal example is far more important. It is not sufficient that the surveyor alone feels that he has honesty and integrity; the public, clients, and fellow practitioners must also believe so. The proof of observance of ethics lies in the opinions of others.

If we, as surveyors, are to maintain a respected position as professionals in the community, we must look beyond the club of the law to ethical standards which prohibit the doing of that which the law does not forbid.


- Curtis M. Brown, Professional Land Surveyor

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 4:04 am

Have fun in San Francisco and Los Angeles!

"Under the final version of the bill, doctors, dentists, lawyers, architects, engineers, accountants, insurance agents, real estate agents, hair stylists and barbers received exemptions. Travel agents, graphics designers and grant writers will continue to offer their professional services without disruption. Licensed cosmetologists and barbers that set their own rates and schedules won’t change. Commercial fisherman are exempt until 2023. Tow truck drivers affiliated with the American Automobile Association got a carveout. And freelance writers and photographers can continue provided they don’t submit more than 35 submissions to an outlet a year.

"On the other end, AB 5 captured the industries targeted by labor: gig workers; big-rig, Amazon and other truck drivers; and low-wage services ranging from janitors to home health aides. Unlicensed nail technicians, language interpreters, musicians, strippers and even rabbis could be impacted.

The bill allows the state attorney general and large cities the right to sue companies that don’t comply. San Francisco City Attorney Dennis Herrera and Los Angeles City Attorney Mike Feuer both say they would ensure workers are treated fairly.

“The city attorney welcomes the new authority and if enforcement action is needed under the new law, he will exercise it,” said Feuer’s spokesman Rob Wilcox.

https://calmatters.org/economy/2019/09/ ... t-of-ab-5/

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Re: AB5 and CLSA

Postby Brian Christensen » Fri Jan 03, 2020 6:41 am

mpallamary wrote:Land surveying to me is a profession; my only question is one of classification of standing. I am not so naive as to believe that we, at the present time and in the opinion of others, are anywhere near equal in stature with the three learned professions, but I do believe that by sustained effort we can achieve a standing comparable to the learned professions.


I believe that the ultimate success of a land tenure system depends on land surveyors. The world's economies would not have flourished into what we know them to be today without a land tenure system to anchor it all down. I say that without the land surveyor's abilities to measure, determine and mark on the ground the boundaries that provide surety to commerce, we would have little need for much of the world's professions.

I hope y'all stand a bit taller today.
Brian Christensen, PLS, CMS
Siskiyou County Surveyor

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 11:48 am

Thanks Brian!

Happy New Year!

I agree.

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Re: AB5 and CLSA

Postby Rob_LS » Fri Jan 03, 2020 5:08 pm

Michael, my friend, I'm sorry I have not taken the time to respond to any posts for a while. Thank you (and others) for sharing the info and legal advice regarding this legislation. There are several different posts where you asked similar or related questions. I will only include this one (shortened) with a sort of blanket answer:
mpallamary wrote:Apparently this was discussed at the Executive Board some time ago. I must assume it was CLSA's desire to accept this classification. From best I can tell, other professions fought for their professional status. I am trying to understand what CLSA's position is.

CLSA did discuss this at the Executive Committee and Board of Directors, I believe our Legislative Committee also discussed it and our central office staff and legislative advocate went to bat for us, however, so far we have been unsuccessful. Hopefully there will be follow-up legislation this session that will include us in the excluded professions (that wording is payback for the wording in your earlier poll). In short, yes, CLSA is very interested in being properly classified, and is working to address the needed changes. As you know, but others may not, CLSA members volunteer many hours of their time to work on issues like this (SB 2, SB 556, etc) every week. The more members we have, the more clout we have; the more connections to politicians we have; and the more people with great ideas and the ability to contribute energy to these worthwhile struggles we have. With that in mind, please encourage everyone involved in our profession to join CLSA, and contribute their thoughts and ideas through their local Chapters, and this forum.

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 7:13 pm

Thanks Rob!

As you know I have devoted thousands of hours of work to the associations's legislative efforts over the years. Not to throw a wet towel on things, but in order for this system to work, the chapter representatives have to do something when requests like this are made.

I am pursuing this through other channels. I appreciate your response.

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Re: AB5 and CLSA

Postby BirdonaWire » Fri Jan 03, 2020 8:28 pm

Technically land surveyors are federally classified as laborers and mechanics after enjoying professional classification from 1962 until 2011-12. Federally land surveyors are laborers, not professionals, the would be professionals can thank California Operating Engineers, Local 12, for soliciting the reclassification from the Secretary of Labor. NSPS has unsuccessfully tried to get land surveyors reclassified back to professionals. Of course, CLSA could not rightfully ask NSPS for anything because CLSA has chosen not to join NSPS - one of the two remaining states. Local 12 created a video at the time that portrayed land surveyors as bumbling numb skulls incapable of "independent thought" serving at the direction of others - those were their words and the summation of the presentation.

The fact land surveyors were not named as exempt from AB5 is because they are not exempt - this was deliberate because land surveyors are a covered craft subject to unionization. This was, reportedly, according to member(s) of the Labor and Employment Committee.

If you are a land surveyor and issue a 1099 you are in peril.

Bird on a Wire

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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 8:36 pm

Thanks! Good information.

Do you know why geologists were lumped in with surveyors and strippers?

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Re: AB5 and CLSA

Postby BirdonaWire » Fri Jan 03, 2020 8:52 pm

Presumably, as with land surveyors, geologist have a field work component on a project site. Labor seeks to regulate onsite "field work". Geologist field work includes a covered craft, soils testing/material testing and another covered craft, inspection.

Bird

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 9:10 pm

Thanks Bird.

Regardless of whatever CLSA does or doesn't do, I intend to pursue this. I have been in business for 40 years and have employed a lot of people and sub-contractors over the years and I believe this is going to be a problem, especially considering there are incentives for municipally employed attorneys, city attorneys and the like to prosecute "violators."

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Fri Jan 03, 2020 9:47 pm

Those barbers and cosmetology have really good representation.

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Fri Jan 03, 2020 10:09 pm

Isn't that the truth!

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Re: AB5 and CLSA

Postby mpallamary » Mon Jan 06, 2020 11:30 am

it is my understanding that Assembly member Gonzalez is proposing some changes to AB5 today. I have consulted an attorney as to whether or not land surveyors are really "engineers" under the new law.

Once again, CLSA needs to be proactive on this matter. While the waters are still unsettled, the Land Surveyors of California should mobilize and unify. Apathy isn't going to cut it.

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Re: AB5 and CLSA

Postby mpallamary » Mon Jan 06, 2020 12:06 pm

Should we not be protected similarly?

https://www.sandiegouniontribune.com/ne ... -labor-law

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Tue Jan 07, 2020 1:03 am


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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Tue Jan 07, 2020 4:25 am

I think it is safe to say that The Dynamex Decision has resulted in unintended consequences and that AB5 trying to codify the decision was poorly crafted.

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Re: AB5 and CLSA

Postby PLS7393 » Tue Jan 07, 2020 8:20 am

Well it appears that surveyors will fail the "A" in the ABC Test.
(a) the worker is free from control and direction in the performance of services;

I have many clients being an engineering or construction firm requesting my services.
With any request for construction staking, or specific mapping, I'm sure that would be defined as "Direction in the performance of services" under the first test question, so we fail!

IMO this appears to be the second piece of legislation recently that hurts the private surveyors, as (SB2 - $75 fee for low income housing) when filing a Record of Survey also was thrown in our face. Could it be time CLSA looks at the direction they are taking us, and protect us as the association we could be?

Pertaining our legal advocate, I know CLSA is paying them a good amount of money but . . . ?
I am curious of the legislative acts that they have actually been successful and productive on to protect us? All I am hearing these days are the legislative acts that dampen our profession, and it give me a sour taste in my mouth. Yes the majority of CLSA are volunteers, as I had been there for a number of years and was successful in committees I participated in. Unfortunately I'm not seeing the positive actions on the important issues.

That's my $0.02 on this issue, and now off to the field for mapping, as directed by my client, lol.
Keith Nofield, Professional Land Surveying
PLS 7393

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Tue Jan 07, 2020 8:51 am

Well said. With each day we are losing our status and ability to operate in the free market.

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Thu Jan 09, 2020 2:35 am

So, Keith, you're their employee. Do you get benefits and a W2?

Does that mean you don't need a contract for the work?

Asking for a friend.

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Re: AB5 and CLSA

Postby hellsangle » Thu Jan 09, 2020 9:42 am

Aren't we codified as land survey engineers/survey engineer/geodetic engineer/geomatics engineer/geometronic engineers?

"No person shall represent himself or herself as, or use the title of, or any abbreviation or combination of the words in the title of, professional land surveyor, licensed land surveyor, land surveyor, land survey engineer, survey engineer, geodetic engineer, geomatics engineer, or geometronic engineer unless he or she is the holder of a valid, unsuspended, and unrevoked license."

If we hold a license . . . then we're *. engineers.

Don't be shy . . . chime in, Rick. Better yet - Xavier!

Crazy Phil "Surveyor to Recorder" - Sonoma

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mpallamary
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Re: AB5 and CLSA

Postby mpallamary » Thu Jan 09, 2020 11:40 am

That is my point exactly. The responses I have received from within CLSA differ and that is the point and the problem.

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TTaylor
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Re: AB5 and CLSA

Postby TTaylor » Thu Jan 09, 2020 1:43 pm

IMO, the LS Act was written as a practice act (not a title act) to safeguard the public and specifically stated the representations only people licensed as Land Surveyors can use. In addition, we are the only ones that can perform the work described in 8725. This is what 8708 does.

"8708. Licensure requirement In order to safeguard property and public welfare, no person shall practice land surveying unless appropriately licensed or specifically exempted from licensure under this chapter, and only persons licensed under this chapter shall be entitled to take and use the titles “licensed land surveyor,” “professional land surveyor,” or “land surveyor,” or any combination of these words, phrases, or abbreviations thereof."

It appears to me that 8751 was written to address people that are non-licensed Land Surveyors representing themselves in a way that was different than what is codified in 8708.

Does 8751 mean we are Engineers? I don't think so and don't want to be lumped in with them. That's an argument I think can be bad for us. If we start claiming we are engineers then why do we have a separate practice License? Typically engineers would love to absorb us as they think we are just technicians/hacks already. They think they know all about Land Surveying because "they took that class in college".

I recommend that our profession works hard to address the oversights in AB5 around non included A&E professionals in the exemptions and possibly working to get rid of this poorly written law.

.02 cents. Take it for what it's worth.
Last edited by TTaylor on Fri Jan 10, 2020 5:36 am, edited 2 times in total.


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