Terminus strikes again

Sounds like he effed up but got railroaded in the end. Me thinks he had made the wrong people mad many years prior and this was the "get back" phase.

But what the hell do I know, I just read the judgment.

A.C.A. § 17-48-106 (2010)

17-48-106. Failure to file boundary survey.

(a) (1) A licensed surveyor is not required to file a plat until he or she has been paid for performing the survey.

(2) A licensed surveyor shall file the plat with the State Surveyor within thirty (30) days after payment for performing the survey or the plat is completed, whichever event occurs last.

(b) The sole purpose of filing the plat shall be to identify the person or persons who made the plat and survey and placed the survey markers and shall not be used to evidence adverse possession or as evidence in boundary disputes.

(c) The provisions of this chapter shall not apply to surveys hereafter made of subdivided property located in a municipality where property has previously been surveyed and a plat filed.

(d) Any licensed surveyor who shall fail or refuse to file the survey as provided by this chapter shall be guilty of a misdemeanor and upon conviction shall be subject to a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100) or imprisonment for not less than thirty (30) days nor more than six (6) months, or subject to both fine and imprisonment.

HISTORY: Acts 1969, No. 645, §§ 1, 2; A.S.A. 1947, §§ 71-2312, 71-2313; Acts 2001, No. 591, § 3; 2007, No. 1040, § 1.

After just a quick run-though reading of that case, it sounds like the Appeals Court accepted the "fact" as determined by the Board that he was guilty of gross negligence and therefore they were either allowed or required to revoke his license, I can't tell which. That's the thing about appeals, it's very hard for them to question the "facts" of the case, they're just trying to determine if the law was applied correctly to the "facts" as brought out in the original hearing or trial.

It does seem like the Board was overly severe in their determination of gross negligence, especially given that apparently Arkansas doesn't require the filing of the survey until after payment in full from the client. That is not the case in California. The filing of the survey is totally the responsibility of the surveyor whether he gets paid or not. Failure to file is probably the most common infraction that the CA board sees and they usually just impose a fine and require the filing be completed, maybe completion of a college course. Sometimes they will suspend or revoke the license just to see if the surveyor has a heart attack, but then they "stay" the action and impose the lesser sanctions.

http://www.pels.arkansas.gov/publications/Documents/newsletters/Aug200320ed.pdf

THE PELS NEWS
An Official Publication of the Arkansas State Board of Registration for Professional Engineers & Land Surveyors
August 2003 Newsletter Twentieth Edition

DISCIPLINARY ACTIONS
taken by the Board since October 2001
1.
12/18/01 – In the matter of Dan Stowers, non-registrant, charged with the preparation and design of multiple drawings and placing them in the public domain without the review and seal by a professional structural engineer and without a signed and sealed seismic statement. The Board accepted a Consent Agreement which acknowledges the violation and imposes a civil penalty of $4,000.
2.
02/22/02 – In the matter of Donald Sheffer, PLS # 993, charged with multiple violations of the Minimum Standards. The Board accepted a Consent Agreement which contained an admission of guilt, Respondent assessed a civil penalty of $3,000 and be placed on probation for a period of six (6) months, during which, all surveys must be submitted to the State Surveyor’s Office for review.
3.
05/13/02 – In the matter of Dan Ivy, PLS # 1036, charged with failure to perform work as contracted in a timely manner , A.C.A. §17-48-102 (b)(1) through (3). The Board accepted a Consent Agreement which contained an admission of guilt, acknowledges that the Respondent had previously refunded the clients $600 fee and Respondent agreed to the issuance of letter of caution in lieu of a civil penalty.
4.
07/30/02 – In the matter of Waste Services, Inc., non-registrant, charged with offering to practice engineering without being registered by the Board, A.C.A. §17-30-303. The Board accepted a Consent Agreement which contained an admission of guilt, Respondent was assessed a civil penalty of $1,000 and ordered to eradicate its errors by withdrawing all advertisements offering engineering services.
5.
07/30/02 – In the matter of John T. Bates, d/b/a Bates Engineering, non-registrant, charged with offering to practice engineering without being registered by the Board, A.C.A. § 17-30-303. The Board accepted a Consent Agreement which contained an admission of guilt and Respondent was assessed a civil penalty of $500.
6.
08/29/02 – In the matter of James C. Frazier, Jr. PLS # 86, charged with multiple violations of the Minimum Standards. The Board ordered the Respondent to prepare and file, with the County clerk and State Surveyor’s Office, a corrected plat which complies with all Minimum Standards. No civil penalty was assessed.
7.
09/10/02 – In the matter of Martin & Blackwell, L.L.C., non-registrant, charged with offering engineering services and design without being registered by the Board, A.C.A. § 17-30-303. The Board accepted a Consent Agreement which contained an admission of guilt and Respondent was assessed a civil penalty of $1,000.
8.
09/12/02 – In the matter of Kenneth D. Lynch, PLS # 1129, charged with multiple violations of the Minimum Standards. The Board accepted a Consent Agreement which contained an admission of guilt, Respondent agreed to prepare a corrected and complete plat of survey for the client and furnish a copy to the State Land Surveyor, Respondent was assessed a civil penalty of $550 and ordered to serve a six (6) month probation period, during which, all surveys must be submitted to the State Surveyor’s Office for review.
9.
10/31/02 – In the matter of William Grant Brawner, PLS # 1198, charged with multiple violations of the Minimum Standards. The Board accepted a Consent Agreement in which the Respondent was assessed a civil penalty of $400 and ordered to serve a six (6) month probation period, during which, all surveys must be submitted to the State Surveyor’s Office for review.
10.
10/31/02 – In the matter of Paxton Singleton, PLS # 1402, charged with violating the Code of Professional Conduct. The Board accepted a Consent Agreement which contained an admission of guilt, The Board ordered a letter of caution be issued and Respondent was assessed a civil penalty of $4,500.
11.
03/31/03 – In the matter of William W. Hope Jr., non-registrant, charged with offering to practice engineering and land surveying without being registered by the Board. The Board accepted a Consent Agreement which contained an acknowledgement of responsibility; Respondent was assessed a civil penalty of $2,000 and ordered to eradicate its errors by requesting that the advertisements be withdrawn.
12.
03/31/03 – In the matter of Terry Gilmore, PLS # 1413, charged with violating the Code of Professional Conduct. The Board ordered a letter of reprimand be issued, no civil penalty was assessed.
13.
05/22/03 – In the matter of David L. Carpenter, PLS # 846, charged with not filing plats in a timely manner. The Board accepted a Consent Agreement which contained an admission of guilt, Respondent was assessed a civil penalty of $2,500, ordered to serve a one (1) year probation, such probation will require a strict compliance with Article 16(A) and it was ordered that any future late filings shall constitute an automatic $100 sanction per instance.
14.
07/22/03 – In the matter of Michael W. Webb, non-registrant, charged with practicing or offering to practice engineering without being registered by the Board. The Board accepted a Consent Agreement which contained an admission of guilt and Respondent was assessed a civil penalty of $3,000.

The moral to the story is:

Whether or no this guy is in the right...

The moral to this story is: LAWYER UP!!!

http://www.pels.arkansas.gov/publications/Documents/newsletters/nov2007.pdf
THE PELS NEWS
An Official Publication of the Arkansas State Board of Registration for Professional Engineers & Land Surveyors
November 2007 Newsletter Twenty-First Edition
DISCIPLINARY ACTIONS
since the 20th Edition (2003)
07/21/2003 – In the matter of Everett Hogan Construction Co, non-registrant. Charged with practicing or offering to practice engineering without a COA or engineer. The Board accepted a Consent Agreement which contained an admission of guilt and required a $1,000 civil penalty.
09/16/2003 – In the matter of In the matter of Mike Lee, non-registrant. Charged with practicing or offering to practice engineering without a license or COA. The Board accepted a Consent Agreement which required a $2,000 civil penalty.
09/23/2003 – In the matter of Terry Gilmore, PS 1413. Charged with taking money for a survey and not delivering. After a formal hearing, license revoked and civil penalty of $50.00 assessed. Respondent has appealed.
10/02/2003 – In the matter of James Neely, AIA. Architect charged with practicing engineering withouta license. After a formal hearing, respondent was ordered to pay a $500 civil penalty.
10/07/2003 – In the matter of HDC Engineering, non-registrant. Charged with providing engineering services without a COA. The Board accepted a Consent Agreement which contained an admission of guilt and required a $2,000 civil penalty.
11/13/2003 – In the matter of United Insulated Structures, Inc, non-registrant. Charged with offering engineering services without a COA. Board accepted a Consent Agreement which contained an admission of guilt, and required a $6,000 civil penalty.
02/17/2004 – In the matter of Fred P. Dunn, PS 1289. Charged with multiple violations of the Minimum Standards for Surveys. He was already on probation from an earlier action for the same offense. Show Cause Hearing held and license revoked.
02/17/2004 – In the matter of James W. Cook, PS 43. Charged with 23 counts of surveying with a lapsed license. After a formal hearing, found guilty and assessed a $1,500 civil penalty.
02/17/2004 – In the matter of Bradley Clark, non-registrant. Charged with practicing and offering to practice surveying without a license. Found guilty during a formal hearing, and assessed a $4,000 civil penalty.
04/06/2004 – In the matter of William Rudasill, PS 1423. Charged with incompetence and Minimum Standards violations (failure to seal or file). After a formal hearing, the Board found him guilty and ordered him to pay a $4,000 civil penalty.
05/20/2004 – In the matter of Robert D. French, PS 1363. Charged with practicing engineering without a license or COA. The Board accepted a Consent Agreement with an admission of guilt and requiring an $875 civil penalty.
07/13/2004 – In the matter of Lewis Steenken, PS 910. Charged with multiple violations of the Minimum Standards for Surveys. The Board accepted a Consent Agreement which contained an admission of guilt and required a $1,000 civil penalty.
07/13/2004 – In the matter of Carl Tanner, PS 610. Charged with multiple violations of the Minimum Standards for Surveys. After a formal hearing, the Board assessed a civil penalty of $500, ordered to file a corrected plat, and given 6 months supervised probation.
10/19/2004 – In the matter of William Bryant, PS 1347. Charged with multiple violations of the Minimum Standards for Surveys. The Board accepted a Consent Agreement which required an $800 civil penalty.
10/19/2004 – In the matter of Steven Beadle, PS 819. Charged with multiple violations of Minimum Standards for Surveys. After a formal hearing, the Board found him guilty of five counts and assessed a civil penalty of $425.
10/19/2004 – In the matter of Willie G. Oyler, PS 532. Charged with multiple violations of the Minimum Standards for Surveys. After a formal hearing, the Board found him guilty of five counts and assessed a $500 civil penalty.
10/19/2004 – In the matter of Timothy Tyler, PS 1243. Charged with multiple violations of the Minimum Standards for Surveys. Board accepted a Consent Agreement with admission of guilt and a $500 civil penalty.
02/18/2005 – In the matter of Claude Sumers, PS 1103. Charged with multiple violations of the Minimum Standards for Surveys. The Board accepted a Consent Agreement which contained an admission of guilt and required a $1,850 civil penalty and 6 months supervised probation.
04/25/2005 – In the matter of Cary Metz, PS 1368. Charged with multiple violations of the Minimum Standards for Surveys. The Board accepted a Consent Agreement which required an admission of guilt, a civil penalty of $1,500, and supervised probation
for six months.
07/19/2005 – In the matter of Dwayne Tennant/SEAS, Inc, non-registrant. Charged with practicing (or offering to practice)engineering and surveying without a license or COA. The Board accepted a Consent Agreement which provided an admission of violations, imposed a $3,500 civil penalty, and required immediate end to further violations.
11/08/2005 – In the matter of Bobby Shaw, PS 598. Charged with a violation of the Minimum Standards for Surveys (no tie to corner). After a formal hearing, found guilty and ordered to pay a $200 civil penalty, which would be waived upon filing a
corrected plat.
01/10/2006 – In the matter of Claude Sumers, PS 1103. Charged with multiple violations of the Minimum Standards for Surveys. The Board accepted a Consent Agreement which contained an admission of guilt and required a $1,625 civil penalty and 6 months supervised probation.
04/03/2006 – In the matter of Cary Metz, PS 1368. Failed to meet the terms of an earlier probation. Show Cause Hearing held and license revoked.
04/06/2006 – In the matter of Frank Blew, PS 56. Charged with violations of the Minimum Standards for Surveys. After a formal hearing, found guilty, assessed a civil penalty of $600, and required to file a corrected plat within 60 days.
05/09/2006 – In the matter of James R. Cole, PS 526. Charged with violations of the Minimum Standards for Surveys. After a formal hearing, found guilty and license suspended indefinitely.
05/09/2006 – In the matter of ALTA Refrigeration, Inc, non-registrant. Charged with practicing and offering to practice without a COA. After a formal hearing, found guilty of one count, and assessed a civil penalty of $500. ALTA was later granted COA
#1392 after proper application.
10/17/2006 – In the matter of Paul Gunn, PS 845. Charged with violations of the Minimum Standards for Surveys. After a formal hearing, found guilty of 55 violations, assessed a civil penalty of $5,000, and one year of supervised probation.
10/17/2006 – In the matter of James L. Butler, PS 261. Charged with surveying on a lapsed license and violations of the Minimum Standards for Surveys. After a formal hearing, found guilty, assessed a $1,400 civil penalty, and ordered to cease surveying.
10/17/2006 – In the matter of Thomas Dabney, PS 482. Charged with multiple violations of the Minimum Standards for Surveys. After a formal hearing, found guilty of 19 violations and assessed a civil penalty of $2,850.
01/09/2007 – In the matter of Thomas Strode, PS 172. Charged with practicing on a lapsed license, and Minimum Standards violations. The Board accepted a Consent Agreement with an admission of guilt, 6 months supervised probation, and a civil
penalty of $2,000.
05/08/2007 – In the matter of Joseph P. Russ, non-registrant. Charged with practicing engineering without a license or COA. After a formal hearing, found guilty of both charges and assessed a $500 civil penalty for each one, for a total of $1,000.

Apparently the Oklahoma board believed him. They did not revoke, suspend or put him on probation. He is still registered here and is active, at least until 2012.:-P

This tale reeks of too much power in little people's hands

I cannot imagine any client not contacting me frequently if I had taken that much of their money and had not delivered within a reasonable time. My clients tend to keep calling to see when I'm going to get their job done, even those who have put up no upfront money. Secondly, if I had a client who owed me that much additional money for completing the project, I would make sure I didn't waste time delivering the goods and an invoice almost immediately upon completion.

This fellow may be guilty of sloppy business management, but, I see no rational excuse for taking away his license. Apparently, when contacted by the client, he completed the filing and generously did not bill for the remainder of the bill beyond the initial retainer. Sounds like the client received a bargain, especially since she apparently didn't really need the survey completed until she contacted him two years later.

I am not impressed at all with those Board members who took such severe action on such a minor indiscretion. Perhaps Mr. Gilmore was absolutely correct about the Board member causing him a problem based on professional jealousy.

Oklahoma, and any other State in which he is licensed, will revoke his license upon application for renewal based on the revocation in Arkansas. He should be allowed to sue individual members of the Arkansas Board in civil court for conspiring to steal his livelihood.

He has already renewed Twice in Oklahoma. Like he claimed, they must have believed that he should not have been revoked. You know Arkansas Told Oklahoma about the revocation.

Whether Or Not You Agree.....

........with the Court's decision, it is striking to see how easily this entire situation could have been avoided with a little common sense and even the barest minimum of communication between the land surveyor and the client.

Let me get this straight: He took $1100 from the client and didn't send her a copy of file the survey? And didn't bother to call or write to tell her why?

After all, whether or not you have access to your records due to a divorce (kind of like "the dog ate my homework" IMHO), at least tell the client what is going on so that they are aware of what has been happening.

Is it professional to perform a survey, have something catastrophic (or semi-catastrophic maybe) happen, and not tell your client?

Maybe the penalty is a bit harsh, but frankly, the whole matter could have easily been avoided way back in 2001.

> After just a quick run-though reading of that case, it sounds like the Appeals Court accepted the "fact" as determined by the Board that he was guilty of gross negligence and therefore they were either allowed or required to revoke his license, I can't tell which. That's the thing about appeals, it's very hard for them to question the "facts" of the case, they're just trying to determine if the law was applied correctly to the "facts" as brought out in the original hearing or trial.
>
Steve has hit on the real issue in this case, common with any appeal of an agency decision. There is ONE trial. That's before the board at the hearing. All evidence that can be presented MUST be presented at that trial. Too often, the board decisions are made with little or no evidence at all being presented and few arguments being raised. Also, too often, the one being charged isn't represented by counsel, thinking this is just a meeting with the good-old-boys.

If you read the case decision closely, it's pretty apparent that the circuit court and appellate court's hands were tied because there was little or no evidence raised aside from the admission of a few facts, and there was little to no argument or objection raised against the discussions, procedures, or findings of the board. Having none of that in the trial court (board hearing) records, the appellate courts had nothing to go on.

Board hearings are not something to take lightly. You must insist on a good record of the complaints, the issues, the arguments and the evidence. Unfortunately, the only way to get that is having a good attorney who is familiar with administrative hearings and their appeal.

JBS

SC

You are quite correct.