@cptdent - Thanks for your comment. Even when people do not approve of my business, I often learn something that helps me improve the text on my website. I have tweaked the text on my site to better explain this point. However, I am staying away from the tech-speak "basis of bearing" phrase.
Here is the page with the tweaked text:
http://www.propertylinemaps.com/p/plm_how_it_works.html
> Technically, yes. See the part about GIS, GPS etc. and the depicting of linework??? At least that's what the board rep told me, but then, what does he know??
Is there a part of the statutes that you didn't post that pertains to "GIS, GPS, and the depicting of linework"? If so, please post it.
I looked through your FAQ's and didn't see my question:
Have you contacted any State Board of Registration for Surveyors; and what did they think of your practice?
Here: is the Washington State BOR web site
Please send them an email and get back to us with what they say.....
Thank you,
Douglas Casement, PLS
The Washington State survey board is thinking about it.
Stay tuned.
I wish anyone luck surveying anything in the City of Sacramento.
I have no idea when I will hear back from the Washington State board. My understanding is that the full board will receive a secret report from staff or maybe a board committee and on the basis of that report, along with any discussion they have, the full board will then decided whether or not I have committed a gross misdemeanor crime. I refer to that as a “secret” report since the process that is underway does not give me an opportunity to see that report and provide any rebuttal before the full board decides my fate.
Strange indeed.
Not only am I forced to target shoot in the dark (not knowing what the secret report says and, perhaps more importantly, what it does *not* say) but also I have no way to ensure that the email I send to staff ever reach the actual decision-makers, namely the full board. Moreover, the board will no doubt go into executive session when any meaningful discussion takes place. Even if I show up at their meeting, I cannot observe and listen to their discussion.
If any of you, pro or con, feel like shooting the Washington board a quick email, here’s their address: [email protected]. You can refer to [REDACTED]. Don’t be shy just because you do not live in WA. Heck, it was a surveyor in NC that complained to the WA board about my business.
Like most (all?) states, WA has not adopted the NCEES model law. When I inquired how the WA board reps voted at the NCEES annual meeting when the model law was adopted I was informed that they do not have any record with that info and lack institutional memory.
Instead of the model law, which accomodates advances in technology, here is the dusty RCW 18.43.020(9) statute which defines land surveying in WA:
"'Practice of land surveying' means assuming responsible charge of the surveying of land for the establishment of corners, lines, boundaries, and monuments, the laying out and subdivision of land, the defining and locating of corners, lines, boundaries, and monuments of land after they have been established, the survey of land areas for the purpose of determining the topography thereof, the making of topographical delineations and the preparing of maps and accurate records thereof, when the proper performance of such services requires technical knowledge and skill." (emphasis added)
I have no idea what the word "maps" means in that paragraph. Do you?
Is "maps" limited to meaning what we typically think of as a survey map with distances and bearings on each property side? I do not produce that kind of map.
Is "maps" limited to meaning a map prepared by someone who has performed any of the work listed in this paragraph and then makes a map to document that work? I do not perform any of the work listed in this paragraph.
Is the word "maps" unlimited and thus meaning any possible kind of map?
It is a universal rule of criminal law in this country that no one can be convicted under a statute that is so vaguely worded that a person of ordinary intelligence cannot tell what conduct is barred by the statute. There are no standards or guidelines in RCW 18.43.020(9) to clearly inform the reader what type of "maps" will violate the statute and result in a gross misdemeanor criminal conviction. As explained by the following quote from the Washington State supremem court, vaguely worded statutes describing criminal conduct violate federal requirements for due process and are unconstitutional.
“The requirement that criminal legislation be definite in language is premised upon two considerations, the first being that citizens must have notice of what conduct is proscribed. To be consistent with due process, a penal statute or ordinance must contain ascertainable standards of guilt, so that men of reasonable understanding are not required to guess at the meaning of the enactment. The basis of this constitutional principle is that [a]ll are entitled to be informed as to what the State commands or forbids. The second consideration, obverse to the notice aspect of the void-for-vagueness doctrine, is that vague laws permit arbitrary arrests and convictions. Imprecisely drawn criminal laws offend due process because they leave judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.”
City of Bellevue v. Miller, 85 Wash. 2d 539, 536 P.2d 603 (WA. 06/12/1975) (citations and quotations omitted, emphasis added)
There are two take home messages here.
First, since I cannot practice surveying without a license it is only fair that the WA board not practice law without a license. I am recommending that the full WA board receive a briefing from an assistant attorney general who specializes in criminal law and not merely from an attorney who works with administrative law. There are basic criminal criteria that must be satisfied before someone can be prosecuted for a crime and the board should hear from a qualified legal expert as to whether or not the facts (including my emails to the board) show that those criteria have been satisfied or not satisfied.
Second, the WA board (along with the boards in the other states that have not yet done so) should get off its collective butt and recommend that the legislature adopt the NCEES model law that defines what is land surveying and also defines what is not land surveying. While I might be among the first to push this issue there will certainly be other businesses with new technology (I know of a few) coming along with their own approach for doing similar things. Since one cannot stop the tide of technology, no good purpose is served by having multiple state boards spend scarce tax dollars investigating each new geospatial business that deals with approximate property coordinates and lines. The states should finally adopt the NCEES model law and put this debate to bed.
According to Black's Law dictionary, a map is defined as:
"A representation of the earth's surface, or of some portion of it, showing the relative position of the parts represented, usually on a flat surface."
In Carto School we were taught that a map is a graphic representation of a protion of the earth's surface. That would include any and all features thereon to include political boundaries and other lines of possession.
If you don't know what a map is, you really shouldn't be trying to make them. Makes your statement sound like you are grasping at straws here.
Perhaps insted of producing maps you should be selling your software to planners, engineers and surveyors. Probably a whole lot more money there than the way you are going now. There's a lot of potential in the software that many might like to take advantage of. AND no one could question the legality of your offering this package.
Creating, preparing or modifying electronic or computerized data, including land information systems, and geographic information systems
> Creating, preparing or modifying electronic or computerized data, including land information systems, and geographic information systems
You cannot ignore the petinent part of the sentence:
Creating, preparing or modifying electronic or computerized data, including land information systems, and geographic information systems relative to the performance of the activities in the above-described paragraphs (a) through (c).
Otherwise anyone "creating, preparing, or modifying data" of any kind, not just "surveying" data, would require a license in land surveying.
Not in all cases, but most cases like this, if you have to vehemently argue and try to rationalize your product, you're probably on the wrong side of the surveying argument.
If the public can be mislead, no matter what disclaimer you offer, then it's an offer that represents professional surveying. I believe your domain name, which is the first thing that the public sees, is a misleading representation. Moreoever, while you believe that your disclaimer absolves you of any wrongdoing, the fact that the "map" you produce can be used by others, or by the purchaser at some point, to induce others to believe that it's a survey, is dangerous.
The website states the service is not offered in California but might be restored in the future. Why is the service not offered in California?
That statute is VERY specific to ONLY surveying. Read the statute title.
California is a great example of the point I made earlier today about statutes that impose criminal penalties and the need for such statutes to comply with basic due process requirements.
This CA link
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=08001-09000&file=8725-8731
includes statute 8726 which defines surveying in CA.
Pursuant to 8726(n) anyone who “[r]enders a statement regarding the accuracy of maps” and is not a licensed surveyor can be slammed by the board with a fine up to $5,000. Whoa!
And of course if you are convicted of this CA misdemeanor then you will be on the receiving end of a criminal fine up to $1,000 and/or 6 months cooling your heels some county jail.
But wait - exactly what type of “statement” and what type of “maps” come within the scope of this statute and its significant criminal penalty? It is simply impossible for a reasonably intelligent person to look at the face of the statute and answer that question.
Better tell your kids not to draw any maps in class and claim they did a good job. Wouldn’t want them to wind up in juvenile detention.
Since the statute quoted above lacks any standards or guidelines describing the circumstances under which the CA board can get after someone who “[r]enders a statement regarding the accuracy of maps”, that statute is unconstitutionally vague (in my lay person’s opinion).
Here is how one leading California case has put it:
“Contrary to appellant's arguments, inherent vagueness in a criminal statute cannot be cured by listing a few examples that can be interpreted as violations of a standardless law. This brings us back to the principle recited in Morales: The Constitution does not permit a legislature to set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully [prosecuted].
....
A criminal statute fails to meet the requirements of due process if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits.
....
Because the challenged provisions fail to provide meaningful guidelines or discernable standards, there is a significant risk of arbitrary and discriminatory application by law enforcement officials. The lack of statutory guidance effectively confers discretion upon individual police officers to interpret the law themselves, thus allowing it to be enforced selectively or haphazardly. As such, the statutes do not satisfy the due process requirements under the second prong of the void-for-vagueness doctrine.”
Parker v. State, F062490 (Cal.App. Dist.5 11/06/2013) (emphasis added, citations and quotations omitted)
The CA board is chewing on this issue.
"Legal advice dot com" might be a more profitable venture for you! 🙂
I agree. You cannot ignore the statute title & the statute in its entirety, including the last phrase I highlighted.
In other words, if someone isn't violating a, b, or c, he cannot be violating d.
HERE IS THE BOTTOM LINE
Dear Mr, Elfelt,
This is the bottom line:
You are offering a service that tells people where their property lines are,for a fee and you do not have a clue as to how to do that. I looked on your web site and see that the only credential you have is that your father taught you how to read a legal description and that you were once a real estate investor; please forgive me if I missed something and you are qualified to provide this service with some credibility.
Just because you put a disclaimer on it, doesn't make it right. What would you think of a web site that offered medical advice for a fee and then said it wasn't very good advice and that they should seek professional advice if they really wanted to know what was wrong; or the same with legal advice?
Nobody wants to put you in jail or fine you because of your business, they just want you to stop ripping off the public. When the BOR finds that you are in fact practising surveying without a license, you will be asked to cease and desist. If you refuse, then you will face other penalties.
Speaking of the Board; I'm pretty sure they are way more credable than you and that you should probably stop trying to give them advice.
Many of us here have worked long and hard to obtain a license to survey property. As in Washington, I would hope that all others are sworn to protect the public. Just because you didn't swear that oath, doesn't give you the right to run your scam.
Best Regards,
Doug Casement, WA PLS
Let's review a bit about the NCEES model law and the problems that gave rise to it.
A total of seven professional organizations participated in developing the model law. Surveyors were represented in that process by the American Congress on Surveying and Mapping and also by the National Society of Professional Surveyors.
When the NCEES model law was adopted, a majority of survey boards voted in favor via their reps at the NCEES annual meeting.
This document:
http://www.asprs.org/a/news/ncees/GIS_LIS_report_final.pdf
succinctly states one of the primary problems that the model law solves as follows:
"A distinction must be made in the use of electronic systems between making or documenting original measurements in the creation of survey products, versus the copying, interpretation, or representation of those measurements in such systems. Further, a distinction must be made according to the intent, use, or purpose of measurement products in electronic systems to determine a definitive location versus the use of those products as a locational reference for planning, infrastructure management, and general information."
Note the big picture the distinction between making the original on-the-ground measurements (surveying) and copying those original measurements (not surveying).
I certainly was not the first software developer to produce code that can copy in some manner measurements that were originally produced by a licensed surveyor. For example, consider the Map My Land site. Here is their homepage: http://www.propertymappingsoftware.com/
If you feed survey calls into their software you get a nice drawing of that property. To see a list of similar software (and a long feature comparison table) scroll down on this page:
http://mapmyland.blogspot.com/p/comparing-property-mapping-software.html
All of those programs, plus the software that I developed and use internally, have one thing in common. They all let a person take original survey calls that were produced by a licensed surveyor and enter those calls into the program. The software then spits out a map. Depending on what buttons you press, most of this software can calculate the closure, display the survey calls on the parcel lines and do various other things.
Example 1:
Do you really think that a person who copies survey calls into one of those packages and lets the software produce a map on an otherwise blank piece of paper is such a great risk to the public that they ought to be (1) fined thousands and (2) put in jail for a year? Seriously?
Ok, let's assume that you think it is *not* a crime for someone to copy original survey calls that were produced by a licensed surveyor and use some software to produce a map showing property lines on an otherwise blank piece of paper.
Example 2:
Now what about copying those very same original survey calls into some software that is a bit smarter and can produce the same property line map on top of an aerial? Should a person who does this be (1) fined thousands and (2) put in jail for a year?
And if you think that example 1 is not a crime but example 2 is a crime, then please post the language from your state statute that makes this distinction. After all, in order to pass due process requirements a statute that imposes a criminal penalty must adequately inform a person of ordinary intelligence about the nature of the conduct that constitutes the crime. Simply put: One is entitled to know beforehand where the line of unlawful conduct is drawn so one can then make a well-informed decision not to cross the line.
Several of the software packages in the feature comparison table (see link above) let you enter both (1) original survey calls and (2) a starting coordinate. The software then goes through the mechanical task of producing coordinates corresponding to the endpoints of the survey calls. And where does that starting coordinate come from? There are a number of possibilities.
* Many county GIS systems can provide coordinates
* If you can see a property corner (or close to it) using an online aerial (USGS GeoCommunicator, Bing, Google, Yahoo, etc) then you can click the aerial and get a coordinate.
* Maybe the property owner had the audacity to (gasp!) stand at a known corner and collect a coordinate with the GPS in their smartphone.
Example 3:
Same facts as in example 2 plus annotations on the map show the approximate coordinates for each corner. The coordinates are plainly labeled as approximate and not survey grade. Should a person that produces this type of map be (1) fined thousands and (2) put in jail for a year? If so, where is the language in your state statute defining surveying that distinguishes between this example and either of the other two examples (assuming you consider at least one of the other examples to represent lawful conduct).
Still not convinced that example 3 is *not* a crime? Concerned about the use of approximate coordinates? Ok, do this simple google search: online waypoint projection. You will find a variety of sites that let you feed in survey calls and generate coordinates for the endpoints of the calls. Are we going to criminalize everyone using those sites? Seriously?
The reality is that the dusty statutes on the books never contemplated today's technology and boards lack the power to engage in creative interpretation of those dusty statutes to, in effect, re-write them. The national surveyor organizations approved the NCEES model law. The majority of state survey boards approved the NCEES model law. It is way past time for the state legislatures to now complete the process by adopting the NCEES model law. The public would not be well served by spending tax dollars to repeat ad nauseam the debate that led up to the model law. The NCEES model law should be adopted so we all know the line between making the original measurements on-the-ground (surveying) and copying those original measurements for various purposes (not surveying).
Joseph
Quite simply, you cannot rectify any deed sketch onto any aerial because you are not on the ground, surveying those lines. Therefore, if you are not doing that (on the ground survey), you are misleading the public, despite your disclaimer. See my post above, along with Doug Casement's post. I don't know how many ways it can be said that you are practicing surveying, whether you think you are or not.
:good:
Here is a point that I recently shared with the Washington State survey board which has not yet been mentioned in this thread.
Since doing land surveying without a license is a crime, you have to know some things about criminal law in order to properly decide if a crime has been committed or not. Of course most surveyors have no reason to know anything about the basic essentials that must exist in order for any crime to be committed whether we are talking about assault, drunk driving, surveying without a license, etc.
Below is one of the most fundamental rules that must be applied when looking at a statute that can result in a criminal penalty. This rule applies in every state either as a statute or as a rule adopted by the courts.
Here is the rule: If a statute that defines a crime is ambiguous, then that statute must be strictly construed against the state and in favor of the accused.
Below is how the U.S. supreme court put it in Connally v. General Construction Co., 269 U.S. 385, 391 (1926):
"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. International Harvester Co. v. Kentucky, 234 U. S. 216, 234 U. S. 221; Collins v. Kentucky, 234 U. S. 634, 234 U. S. 638."
....
"The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another." (quoting United States v. Capital Traction Co., 34 App.D.C. 592, 598)"
What does all that mean in practical terms? If a statute is ambiguous and can be interpreted to mean either that my service is in violation of the statute or my service is not in violation of the statute, then in order to comply with due process that statute must be interpreted to mean that my business does not violate the statute. Unless a state has a statute that unambiguously provides that producing approximate corner coordinates constitutes surveying without a license, then the service that I provide doing so is not a crime.
Joseph