CHAPTER 265

FORMERLY

SENATE BILL NO. 209

AN ACT TO AMEND CHAPTER 27, TITLE 24 OF THE DELAWARE CODE RELATING TO LAND SURVEYORS AND TITLE 29 OF THE DELAWARE CODE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Title 24 of the Delaware Code by striking Chapter 27 in its entirety and substituting in lieu thereof the following:

"CHAPTER 27. PROFESSIONAL LAND SURVEYORS

Subchapter I. Board of Professional Land Surveyors.

§2701. Objectives.

The primary objective of the Board of Professional Land Surveyors, to which all other objectives and purposes are secondary, is to protect the general public, specifically those persons who are the direct recipients of services regulated by this Chapter, from unsafe practices and from occupational practices which tend to reduce competition or fix the price of services rendered.

The secondary objectives of the Board are to maintain minimum standards of practitioner competency and to maintain certain standards in the delivery of services to the public. In meeting its objectives, the Board shall develop standards assuring professional competence; shall monitor complaints brought against practitioners regulated by the Board; shall adjudicate at formal hearings; shall promulgate rules and regulations; and shall impose sanctions where necessary against practitioners.

§2702. Definitions.

The following words, terms and phrases, when used in this Chapter shall have the meanings ascribed to them under this section, except where the context clearly indicates a different meaning:

(1) ‘Board’ shall mean the State Board of Professional Land Surveyors established in this Chapter.

(2) 'Division' shall mean the State Division of Professional Regulation.

(3) ‘Excessive use or abuse of drugs’ shall mean any use of narcotics, controlled substances, or illegal drugs without a prescription from a licensed physician, or the abuse of alcoholic beverage such that it impairs his or her ability to perform the work of a professional land surveyor.

(4) 'Person' shall mean a corporation, company, association and partnership, as well as an individual.

(5) ‘Practice of land surveying’ shall mean professional services or work involving special knowledge and application of the principles of mathematics and related sciences and the relevant requirement of law in connection with the use and development of land, as described herein:

(a) the act of measuring, locating, establishing or re-establishing corners, lines, boundaries, angles, elevations, contours and natural and man-made features in the air, on the surface or subsurface of the earth, within underground workings and on the beds or surface of bodies of water for the purpose of determining or establishing facts of size, area, shape, topography, tidal datum planes, legal or geodetic location or relocation and orientation of improved or unimproved real property and appurtenances thereto;

(b) The horizontal and vertical control for aerial surveys and photogrammetric compilation; Global Positioning System Surveying (GPS), as related to boundary surveying, and as defined as determining the horizontal and vertical location of an object on the earth’s surface with respect to the center of the earth by observing satellites with equipment capable of acquiring, analyzing and managing the data collected; polaris and solar observations for the determination of the true azimuth; the monumentation and re-monumentation of boundaries of land, divisions of land, tracts, parcels and lots; the measurement and preparation of plans showing existing improvements after construction; the layout of proposed improvements and the preparation of descriptions and plans for use in legal instruments of conveyance of real property and property rights; and

(c) the design, preparation and furnishing of subdivision plans, land development plans, sedimentation and erosion control plans, grading plans, condominium plans, record plats and horizontal alignments, profiles and typical sections for roads, streets, utilities, sanitary sewers and storm drainage systems. This shall not be construed so as to permit the professional land surveyor to include the design of sewage disposal stations, lift stations, commercial and industrial buildings, pumping stations, and bridges, or to prepare plans for the construction of engineering and architectural projects.

(6) 'Professional land surveyor' shall mean an individual who holds a valid license to practice land surveying under this Chapter, and in addition:

a. is a professional specialist in the technique of measuring land;

b. is educated in the principles of mathematics and related sciences;

c. is experienced in the application of the principles of mathematics and the related sciences;

d. understands the relevant requirements of law for the presentation of adequate evidence relating to property descriptions and the surveying of real property.

(7) 'Responsible charge' shall mean the direct control and personal direction of the investigation, operation and execution of land surveying work requiring initiative, professional skill and independent judgment as a party chief or survey manager.

(8) 'State' shall mean the state of Delaware.

§2703. Board of Professional Land Surveyors; appointments; qualifications; term; vacancies; suspension or removal; unexcused absences; compensation.

(a) There is created a State Board of Professional Land Surveyors that shall administer and enforce this Chapter.

(b) The Board shall consist of seven members appointed by the Governor, who are residents of this state: Four shall be land surveyors licensed under this Chapter; at least one of whom, but not more than three, shall be appointed from each county of this State; and three public members. The public members shall not be, nor ever have been, land surveyors, nor members of the immediate family of a land surveyor; shall not have been employed by a land surveyor; shall not have a material interest in the providing of goods and services to land surveyors; nor have been engaged in an activity directly related to land surveying. The public members shall be accessible to inquiries, comments and suggestions from the general public.

(c) Except as provided in subsection (d) of this section, each member shall serve a term of three years, and may succeed himself or herself for one additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member may succeed himself or herself for only one additional full term. Any person appointed to fill a vacancy on the Board shall hold office for the remainder of the unexpired term of the former member. Each term of office shall expire on the date specified in the appointment; however, the Board member shall remain eligible to participate in Board proceedings unless and until replaced by the Governor. Persons who are members of the Board on the effective date of this Act shall complete their terms.

(d) A person who has never served on the Board may be appointed to the Board for two consecutive terms; but no such person shall thereafter be eligible for two consecutive appointments. No person, who has been twice appointed to the Board or who has served on the Board for six years within any nine-year period, shall again be appointed to the Board until an interim period of at least one year has expired since such person last served.

(e) Any act or vote by a person appointed in violation of this section shall be invalid. An amendment or revision of this Chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (d) of this section, unless such an amendment or revision amends this section to permit such an appointment.

(f) A member of the Board shall be suspended or removed by the Governor for misfeasance, nonfeasance, or malfeasance. A member subject to disciplinary hearing shall be disqualified from Board business until the charge is adjudicated or the matter is otherwise concluded. A Board member may appeal any suspension or removal to the Superior Court.

(g) No member of the Board, while serving on the Board, shall hold elective office in any professional association of land surveyors; this includes a prohibition against serving as head of the professional association’s Political Action Committee (PAC).

(h) The provisions of Chapter 58, Title 29 of the Delaware Code shall apply to all members of the Board.

(i) Any member who is absent without adequate reason for three consecutive meetings, or fails to attend at least half of all regular business meetings during any calendar year, shall be deemed to have resigned his or her appointment. The Director of the Division shall have the responsibility to enforce this provision. Upon the determination by the Director that a vacancy exists due to this provision, the Governor may appoint a new member as provided in subsection (c) of this section.

(j) Each member of the Board shall be reimbursed for all expenses involved in each meeting, including travel, according to Division policy; and in addition shall receive not more than $50 for each meeting attended but not more than $500 in any calendar year. After 10 meetings have been attended, the member shall not be compensated for any subsequent meetings attended in that year.

§2704. Organization; meetings; officers; quorum.

(a) The Board shall hold regularly scheduled business meetings at least once in each quarter of a calendar year, and at such times, as the Chair deems necessary or at the request of a majority of the Board members.

(b) The Board shall elect annually from its members a chair, vice-chair and secretary. Each officer shall serve for one year and shall not succeed himself or herself for more than two consecutive terms. In the event of a vacancy in one of the offices, a replacement shall be elected at the next Board meeting.

(c) A majority of the members shall constitute a quorum for the purpose of transacting business. No disciplinary action shall be taken without the affirmative vote of four members of the Board.

(d) Minutes of all meetings shall be recorded, and the Division of Professional Regulation shall maintain copies. At any hearing where evidence is presented, a record from which a verbatim transcript can be prepared shall be made. The person requesting it shall incur the expense of preparing any transcript.

§2705. Records.

The Division of Professional Regulation shall keep a register of all approved applications for license as a land surveyor, and complete records relating to meetings of the Board, examinations, rosters, changes and additions to the Board's rules and regulations, complaints, hearings and such other matters as the Board shall determine. Such records shall be prima facie evidence of the proceedings of the Board.

§2706. Powers and duties.

(a) The Board of Professional Land Surveyors shall have authority to:

(1) Formulate rules and regulations, with appropriate notice to those affected; all rules and regulations shall be promulgated in accordance with the procedures specified in the Administrative Procedures Act of this State. Each rule or regulation shall implement or clarify a specific section of this Chapter.

(2) Designate the application form to be used by all applicants and process all applications;

(3) Designate a written, standardized, national examination prepared by either the national professional association or by a recognized national testing service, and approved by the Division, to be taken by all persons applying for licensure; the national examination shall be taken by all persons applying for licensure, except applicants who qualify for licensure by reciprocity;

(4) Designate a written, two-hour examination on drainage and the Delaware law, prepared by an independent testing agency, and approved by the Director of the Division. All persons applying for licensure, including those applicants for licensure by reciprocity, shall take the examination on drainage and Delaware law;

(5) Adopt the administration, grading procedures, and passing score set by the national professional association or testing service;

(6) Evaluate the credentials of all persons applying for a license to practice land surveying in Delaware, in order to determine whether such persons meet the qualifications for licensing set forth in this Chapter.

(7) Grant licenses to, and renew licenses of, all persons who meet the qualifications for licensure and/or renewal of licenses;

(8) Establish by rule and regulation continuing education standards required for license renewal;

(9) Evaluate certified records to determine whether an applicant for licensure, who has been previously licensed, certified, or registered in another jurisdiction to practice land surveying has engaged in any act or offense that would be grounds for disciplinary action under this Chapter and whether there are disciplinary proceedings or unresolved complaints pending against such applicants for such acts or offenses.

(10) Refer all complaints from licensees and the public concerning licensed land surveyors, or concerning practices of the Board or of the profession, to the Division of Professional Regulation for investigation pursuant to §8807 of Title 29 of the Delaware Code and assign a member of the Board to assist the Division in an advisory capacity with the investigation of the technical aspects of the complaint;

(11) Conduct hearings and issue orders in accordance with procedures established pursuant to the Administrative Procedures Act (Chapter 101 of Title 29 of the Delaware Code);

(12) Where it has been determined after a disciplinary hearing, that penalties or sanctions should be imposed, to designate and impose the appropriate sanction or penalty after time for appeal has lapsed.

Subchapter II. License

§2707. License required.

(a) No person shall engage in the practice of land surveying or hold himself or herself out to the public in this State as being qualified to practice land surveying, or use in connection with his or her name, or otherwise assume or use, any title or description conveying or tending to convey the impression that he or she is qualified to practice land surveying, unless such person has been duly licensed under this Chapter.

(b) Whenever a license to practice as a land surveyor in this state has expired or been suspended or revoked, it shall be unlawful for the person to practice land surveying in this State.

§2708. Qualifications of applicant; report to Attorney General; judicial review.

(a) An applicant who is applying for licensure as a land surveyor under this Chapter shall submit evidence, verified by oath and satisfactory to the Board, that such person:

(1) has satisfied one of the following requirements:

a. Is a graduate of a surveying curriculum of four years or more and has had at least three years of combined office and field experience in responsible charge of land surveying projects performed under the direct supervision of a licensed land surveyor in the active practice of land surveying. The required experience shall not be achieved concurrently with the education requirement; or

b. is a graduate of a surveying or related science curriculum of four years or more, and has had at least five years of combined office and field experience in responsible charge of land surveying projects performed under the direct supervision of a licensed land surveyor in the active practice of land surveying. The required experience shall not be achieved concurrently with the education requirement; or

c. has successfully completed a 32-semester hour, or its academic equivalent, course of study in land surveying or survey-related subjects, and has had at least six years of combined office and field experience in responsible charge of land surveying projects performed under the direct supervision of a licensed land surveyor in the active practice of land surveying; or

d. has had at least ten years of combined office and field experience in responsible charge of land surveying projects performed under the direct supervision of a professional land surveyor in the active practice of land surveying.

(2) has achieved the passing score on the written standardized national examination developed by the national professional association, and the written two-hour examination on drainage and Delaware law;

(3) Shall not have been the recipient of any administrative penalties regarding his or her practice of land surveying, including but not limited to fines, formal reprimands, license suspensions or revocation, (except for license revocations for nonpayment of license renewal fees), probationary limitations, and/or has not entered into any ‘consent agreements’ which contain conditions placed by a Board on his or her professional conduct and practice, including any voluntary surrender of a license. The Board may determine, after a hearing, whether such administrative penalty is grounds to deny licensure.

(4) shall not have any impairment related to drugs, alcohol, that would limit the applicant’s ability to undertake the practice of land surveying in a manner consistent with the safety of the public;

(5) Shall not have been convicted of a felony;

(6) Shall not have a criminal conviction record, nor pending criminal charge relating to an offense, the circumstances of which substantially relate to the practice of land surveying. Applicants who have criminal conviction records or pending criminal charges shall request appropriate authorities to provide information about the record or charge directly to the Board in sufficient specificity to enable the Board to make a determination whether the record or charge is substantially related to the practice of land surveying.

(7) shall not have engaged in any of the acts or offenses that would be grounds for disciplinary action under this Chapter; and has no disciplinary proceedings or unresolved complaints pending against him or her in any jurisdiction where the applicant has previously been or currently is licensed or registered as a land surveyor.

(b) Where the Board has found to its satisfaction that an application has been intentionally fraudulent, or that false information has been intentionally supplied, it shall report its findings to the Attorney General for further action.

(c) Where the application of a person has been refused or rejected and such applicant feels that the Board has acted without justification; has imposed higher or different standards for him or her than for other applicants or licensees; or has in some other manner contributed to or caused the failure of such application, the applicant may appeal to the Superior Court. The appeal shall be treated as an appeal of an administrative agency decision pursuant to the Administrative Procedures Act, Chapter 101, Title 29 of the Delaware Code.

§2709. Reciprocity.

(a) Upon payment of the appropriate fee and submission and acceptance of a written application on forms provided by the Board, the Board shall grant a license to each applicant who shall present proof of current licensure in good standing in another state, the District of Columbia, or territory of the United States, whose standards for licensure are substantially similar to those of this State, and who meets the following criteria:

(1) his or her license is in good standing as defined in §2708(a)(3), (4),(5),(6), and (7) of this Chapter; and

(2) has achieved the passing score on the two-hour written examination on drainage and the Delaware law.

(b) An applicant, who is licensed or registered in a state whose standards are not substantially similar to those of this State, shall have practiced for a minimum of five years after licensure; provided, however, that he or she meets all other qualifications for reciprocity in this section.

§2710. Fees.

The amount to be charged for each fee imposed under this Chapter shall approximate and reasonably reflect all costs necessary to defray the expenses of the Board, as well as the proportional expenses incurred by the Division in its service on behalf of the Board. There shall be a separate fee charged for each service or activity; but no fee shall be charged for a purpose not specified in this Chapter. The application fee shall not be combined with any other fee or charge. At the beginning of each licensure biennium, the Division, or any other state agency acting in its behalf, shall compute, for each separate service or activity, the appropriate Board fees for the coming licensure biennium.

§2711. Issuance and renewal of licenses.

The Board shall issue a license to each applicant, who meets the requirements of this Chapter for licensure as a land surveyor and who pays the fee established under §2710 of this Chapter.

Each license shall be renewed biennially, in such manner as is determined by the Division, and upon payment of the appropriate fee and submission of a renewal form provided by the Division, and proof that the licensee has met the continuing education requirements established by the Board.

The Division or its designee shall notify every licensee of the date of expiration of his/her license and the amount of the fee that shall be required for renewal at least one month prior to the expiration thereof. Failure to give or receive such notice shall not prevent the license from becoming invalid after its expiration date.

The Board, in its rules and regulations, shall determine the period of time within which a licensed land surveyor may still renew his or her license, notwithstanding the fact that such licensee has failed to renew on or before the renewal date.

§2712. Grounds for discipline.

(a) A practitioner licensed under this Chapter shall be subject to disciplinary actions set forth in §2714 of this Chapter, if, after a hearing, the Board finds that the land surveyor:

(1) has employed or knowingly cooperated in fraud or material deception in order to acquire a license as a land surveyor; has impersonated another person holding a license or registration, or allowed another person to use his or her license, or aided or abetted a person not licensed as a land surveyor to represent himself or herself as a land surveyor;

(2) Has been convicted of a felony; a copy of the record of conviction certified by the clerk of the court entering the conviction shall be conclusive evidence therefor;

(3) Has excessively used or abused drugs;

(4) has engaged in an act of consumer fraud or deception; engaged in the restraint of competition; or participated in price-fixing activities;

(5) has engaged in illegal, incompetent or grossly negligent conduct in the practice of land surveying;

(6) has violated a lawful provision of this Chapter, or any lawful regulation established thereunder;

(7) has had his or her license, certification, or registration as a land surveyor suspended or revoked, or other disciplinary action taken by the appropriate licensing authority in another jurisdiction; provided, however, that the underlying grounds for such action in another jurisdiction have been presented to the Board by certified record, and the Board has determined that the facts found by the appropriate authority in the other jurisdiction constitute one or more of the acts defined in this Chapter. Every person licensed as a land surveyor in this state shall be deemed to have given consent to the release of this information by the Board or other comparable agencies in another jurisdiction and to waive all objections to the admissibility of previously adjudicated evidence of such acts or offenses;

(8) has failed to notify the Board that his or her license or registration as a land surveyor in another state has been subject to discipline, or has been surrendered, suspended or revoked. A certified copy of the record of disciplinary action, surrender, suspension or revocation shall be conclusive evidence thereof; or

(9) while acting as a supervising land surveyor, has failed to supervise and take reasonable steps to see that unlicensed persons, acting under the supervising land surveyor’s direction or control, perform services responsibly, competently, and ethically, in accordance with rules and regulations established by the Board. Supervising land surveyors shall be subject to disciplinary action for any acts or offenses which are grounds for such action when such acts or offenses are undertaken by unlicensed persons acting under the supervising land surveyor's direction or control.

(b) Subject to the provisions of this Chapter and Subchapter IV of Chapter 101 of Title 29 of the Delaware Code, no license shall be restricted, suspended or revoked by the Board, and no practitioner's right to practice land surveying shall be limited by the Board until such practitioner has been given notice, and an opportunity to be heard, in accordance with the Administrative Procedures Act.

§2713. Complaints.

(a) All complaints shall be received and investigated by the Division of Professional Regulation in accordance with §8807 of Title 29 of the Delaware Code, and the Division shall be responsible for issuing a final written report at the conclusion of its investigation.

(b) When it is determined that an individual is engaging in the practice of land surveying or is using the title land surveyor and is not licensed under the laws of this State, the Board shall apply to the Office of the Attorney General to issue a cease and desist order.

§2714. Disciplinary sanctions.

(a) The Board may impose any of the following sanctions, singly or in combination, when it finds that one or more of the conditions or violations set forth in §2712 of this Chapter applies to a practitioner regulated by this Chapter:

(1) Issue a letter of reprimand.

(2) Censure a practitioner.

(3) Place a practitioner on probationary status, and require the practitioner to:

a. Report regularly to the Board upon the matters, which are the basis of the probation;

b. Limit all practice and professional activities to those areas prescribed by the Board;

(4) Suspend any practitioner's license.

(5) Revoke any practitioner's license.

(6) Impose a monetary penalty not to exceed $500 for each violation.

(b) The Board may withdraw or reduce conditions of probation when it finds that the deficiencies that required such action have been remedied.

(c) The Board may temporarily suspend a practitioner's license in advance of a final adjudication, during the appeals process, but only in cases where there is clear and immediate danger to the health and safety and welfare of the public if the licensee is allowed to continue to practice. Such suspension may be appealed to Superior Court.

(d) As a condition of reinstatement of a suspended license, or removal from probationary status, the Board may impose such disciplinary or corrective measures as are authorized under this Chapter.

§2715. Hearing Procedures.

(a) If a complaint is filed with the Board pursuant to §8807 of Title 29 of the Delaware Code, alleging violation of §2714 of this Chapter, the Board shall set a time and place to conduct a hearing on the complaint. Notice of the hearing shall be given and the hearing conducted in accordance with the Administrative Procedures Act, Chapter 101 of Title 29 of the Delaware Code.

(b) All hearings shall be informal without use of rules of evidence. If the Board finds, by a majority vote of all members, that the complaint has merit, the Board shall take such action permitted under this Chapter, as it deems necessary. The Board's decision shall be in writing and shall include its reasons for such decision. The Board's decision shall be mailed immediately to the practitioner.

(c) Where the practitioner is in disagreement with the action of the Board, he or she may appeal the Board's decision to the Superior Court within 30 days of service, or of the postmarked date of the copy of the decision mailed to him or her. Upon such appeal the Court shall hear the evidence on the record. Stays shall be granted in accordance with §10144 of Title 29 of the Delaware Code.

§2716. Reinstatement of a suspended license; removal from probationary status; replacement of license.

(a) As a condition to reinstatement of a suspended license, or removal from probationary status, the Board may reinstate such license if, after a hearing, the Board is satisfied that the licensee has taken the prescribed corrective actions and otherwise satisfied all of the conditions of the suspension and/or the probation.

(b) Applicants for reinstatement shall pay the appropriate fees and submit documentation required by the Board as evidence that all the conditions of a suspension and/or probation have been met. Proof that the applicant has met the continuing education requirements of this Chapter may also be required, as appropriate.

(c) A new license to replace any license lost, destroyed or mutilated may be issued subject to the rules of the Board. A charge shall be made for such issuance.

§2717. Penalty.

A person not currently licensed under this Chapter as a land surveyor, when guilty of engaging in the practice of land surveying, or using in connection with his or her name, or otherwise assuming or using any title or description conveying, or tending to convey the impression that he or she is qualified to practice land surveying, such offender shall be guilty of a misdemeanor. Upon the first offense, he or she shall be fined not less than $500.00 dollars or more than $1000.00 dollars for each offense. For a second or subsequent conviction, the fine shall be not less than $1000.00 or more than $2000.00 for each offense. Superior Court shall have jurisdiction over all violations of this Chapter.

Subchapter III. Other Provisions

§2718. Applicability of Chapter.

Nothing in this Chapter shall be construed as preventing or restricting the practice, services, or activities of:

(1) any person(s) licensed to practice engineering or architecture in Delaware;

(2) any person(s) engaged solely in the teaching of land surveying or courses related to land surveying;

(3) Any employee of the United States government while engaged in the practice of land surveying for said government within this State;

(4) Any person(s) engaged in the practice of land surveying under the direct supervision of a professional land surveyor, who is licensed in this State, and who assumes responsibility for the activities of the unlicensed person(s).

§2719. Seal.

Every land surveyor licensed in this State shall have a seal of a design authorized by the Board by regulation and which bears the licensed land surveyor's name. All technical submissions prepared by such land surveyor, or under his or her direct supervision, shall be stamped with the impression of the licensed land surveyor's seal. No licensed land surveyor shall impress his or her seal on any technical submission unless it has been prepared under his or her direct supervision.

§2720. Public works.

Neither this State, nor any of its political subdivisions, such as counties, incorporated cities and towns, or other political entities or legally constituted boards, commissions, or authorities, or officials, or employees thereof, shall permit the commencement or continuance of any public work involving land surveying unless the field surveying shall be directly supervised by, and all drawings and documents as a result thereof, shall be prepared or certified by, a professional land surveyor licensed under this Chapter, or a person authorized under Chapter 28 of this Title to practice professional engineering in this State."

Section 2. Rules and Regulations.

Rules and Regulations in effect on the date of enactment of this Act shall remain valid to the extent they are not inconsistent with this Act.

Section 3. Reorganized Board appointments.

Members of the reorganized Board shall be appointed so that the terms of one professional member and one public member shall expire one year after the initial appointment; the terms of one professional member and one public member shall expire two years after the initial appointment; and the terms of two professional members and one public member shall expire three years after the initial appointment; thereafter, appointments shall be made for a term of three years.

Section 4. Administrative Procedures Act.

Amend paragraph 31, subsection (a), §10161, Title 29 of the Delaware Code by striking the words "Registration for" as the same appear in said paragraph.

Section 5. Division of Professional Regulation.

Amend paragraph (16), subsection (a), §8807, Title 29 of the Delaware Code by striking the words "Registration for" as the same appear in said paragraph.

Section 6. Severability.

If any provision of this Act or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this Act, which can be given effect without the invalid provisions or applications, and to this end the provisions of this Act are severable.

Approved February 04,2000