5-year suspension upheld for civil engineer who practiced surveying

By July 1, 2012 April 1st, 2015 Building Construction Professionals

A California court has upheld a five-year suspension of the license of a civil engineer for, among other things, engaging in land surveying, a practice condoned by the law of many of the state’s municipalities but forbidden by its licensing board (Rudolfo Ventura Dimalanta v. Board for Professional Engineers and Land Surveyors). The licensee, Rudolfo Dimalanta, was also cited for negligence in the February 6 decision by the Court of Appeals of California, First Appellate District, Division Four.

In 2003, Dimalanta prepared a tentative parcel map—a map intended to show the feasibility of a project—for the development of four houses in Oakland. The tentative map both contained serious errors and appeared to include boundary lines that can only be made by a licensed land surveyor.

Based on the map, the state’s Board for Professional Engineers and Land Surveyors filed charges in 2008 and, after a hearing, an administrative law judge imposed a five-year license suspension on Dimalanta for negligence and incompetence in the profession, the unlawful practice of land surveying, and unprofessional conduct. Dimalanta appealed and the case went before the court, which issued an opinion written by Justice Maria Rivera.

During the administrative hearing, Dimalanta had objected to the finding that his work was incompetent. The map he had created, he argued, was a tentative one—only done to determine the feasibility of a project—and any mistakes were irrelevant, as they would be corrected in a later map.

However, an expert witness for the board noted that Dimalanta’s mistakes were so significant that any developers relying on the map for feasibility would find their costs much higher when the actual project was undertaken, and the ALJ relied on this statement to support the finding of incompetence.

The court agreed with the decision. Rivera noted that the ALJ hearing the case had determined that the board’s expert witness was more credible than Dimalanta’s expert, who was the supervising civil engineer for the city of Oakland, and worked primarily in an administrative capacity. Rivera even went so far as to say that the opinion of Dimalanta’s expert that the map was accurate enough for its purposes was of “dubious provenance.”

Also upheld was the ALJ’s ruling that Dimalanta had wrongly engaged in the unlicensed practice of land surveying. Several cities, including Oakland, have ordinances which allow civil engineers to engage in unlicensed land surveying, based on a state law called the Subdivision Map Act, which allows municipalities to regulate and control the design and improvement of subdivisions.

However, the judge stated that the Subdivision Map Act and local ordinances were not relevant in a license discipline case. “To the extent the Subdivision Map Act and the various municipal ordinances upon which Dimalanta relies appear to be at odds with the Business and Professions Code, it is well established that the state has preempted the field of regulating and licensing persons entitled to engage in certain occupations, including civil engineering and land surveying, and that municipal codes purporting to regulate this field cannot stand.”

© 2012 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.

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