The Four-Year Degree Standard for Surveying’s Recognition as a Profession

The trend is growing in the United States toward a legal requirement of a minimum four-year degree as the definition of a “profession.” If surveyors wish to be generally regarded as professionals, then a national four-year minimum standard is very important.

First Four-Year Standard Application

A 1992 Florida Supreme Court decision (Garden v. Frier 602 So.2d 1273) was the first in the nation to apply the four-year degree standard to surveying. The decision was applied to wording in Florida’s Ch 95, Limitation of Actions statute. If a member of a “profession” causes damage, the damaged party has only two years to bring a negligence suit from discovery of the error. If a member of the general public causes damage, the damaged party has four years to bring a “general negligence” suit.

For this case, a client of a local licensed surveyor brought suit in local trial court, claiming damages from a survey. The suit was brought in the third year after discovery of the error. The surveyor defended, saying that because he was a licensed professional surveyor the suit must be brought in two years; therefore the suit should be dismissed. The trial court held for the surveyor.
The client appealed eventually to the Supreme Court, who had to develop a general definition of a “profession” for the Limitation of Action statute. After deliberation, the court ruled that the Florida surveying profession was not a profession because of the lack of a four-year degree standard at that time. Florida had passed a four-year requirement for surveying licensure in 1987, but because of an 11-year grandfathering period almost all newly licensed 1992 surveyors did not have a degree.

The 1992 Supreme Court followed a 1988 Supreme Court definition of the statutory term “professional” in a case involving insurance underwriters/agents, Pierce v. AALL Insurance Co., 531 So.2d 84 (Fla.1988). The 1992 court stated: “Accordingly, in harmony with the central thrust of Pierce, we hold that a ‘profession’ is any vocation requiring at a minimum a four-year college degree before licensing is possible in Florida. There can be no equivalency exception.”

The 1992 court also compared engineers with surveyors in Florida: “Thus, all future admittees must hold a four-year degree, and all engineers accordingly are professionals for purposes of the statute of limitations. Land surveyors with sufficient qualifying experience, on the other hand, can be licensed without a four-year degree § 472.012(2)(e), Fla. (1991). Accordingly, some future admittees could be licensed without a four-year degree, and land surveyors thus are not professionals for purposes of the statute of limitations.”

The court was quite clear and certain. This case created a shock wave among surveying professionals nationwide in the early 1990s.

The Next Step

Kentucky Trial and Appellate Court Decision ruled on a similar case (Gardiner Park Development, LLC, et al v. Matherly Land Surveying, Inc., 2003). The Kentucky Statute of Limitation of Actions also has a reduced time for an aggrieved party to bring a negligence suit against a professional (KRS 413.245, the one-year professional malpractice statute). However, like Florida, the Kentucky statute did not define “professional,” and the court had to make a definition.

The trial court applied Florida’s Gardner v. Frier definition that a profession must have a four-year degree standard for entry. Therefore Kentucky surveyors were also declared non-professionals.

The surveyor appealed, and in 2005 a Kentucky appeals court reversed and remanded the decision. The big issue on the appeal was the confusion between engineering surveying versus land surveying services. Because states like Kentucky still permit engineers to do some surveying (non-boundary work related to an on-going engineering design/construction project), the trial court did not strike a distinction between engineering surveying versus land (boundary) surveying in the decision.

The appeals court addressed this distinction, basically saying if the surveyor who caused the damages was doing “engineering” surveying then the one-year statute of limitations would apply, because engineering had a four-year degree standard. However, if the damages were caused by work that only a land surveyor could perform (boundary work), then the one-year statute would not apply, because 2003 land surveying statutes did not require a four-year degree, and land surveying is not a profession.

Even though the case was “reversed and remanded” back to trial court, the trial court, upon rehearing, evidently held that the damages were caused by boundary surveying work that only a land surveyor could do. Therefore, the initial trial court decision stood: Land surveying is not a profession in Kentucky.

The Kentucky appeals court stated: “However, the parties are in disagreement about whether the services ... are those of a professional engineer or those of a land surveyor. This, in our view, is a question to be determined by the trial court. Therefore, the judgment of the Jefferson Circuit Court is vacated and the case remanded to the circuit court for a determination of what services are professional engineering versus land surveying. To the extent that the claims relate to professional engineering, they are subject to the one-year statute of limitations in KRS 413.245 and should be dismissed.... To the extent that the claims relate to land surveying, they are not subject to the statute of limitations in KRS 413.245.”

The 2003 case caused great concern to the Kentucky surveying profession. Surveyors there immediately began to develop legislation for a four-year degree standard. That legislation passed in 2006 and is in the grandfather period at this time.
 

The U.S. Fair Labor Standards Act

In 2008-2009, Maine surveyors were surprised to find that the U.S. Department of Labor ruled that they were not members of a “learned profession,” because Maine state statutes do not require surveyors to have a four-year degree to be licensed. Maine surveyors fought the DOL decision and asked ACSM to help. After a diligent challenge to the ruling, the surveyors lost, and the DOL decision stands.

The U.S. Congress adopted a federal act termed The Fair Labor Standards Act (FLSA), first enacted in 1938 with numerous changes since then. The purpose of the federal law is to be sure that employees are treated equitably while they work. As a result, the FLSA establishes minimum wages for certain types of employees and work and requires time and a half for overtime work. However, if a person is a member of a “learned profession,” the employer does not need to meet the act’s requirements. Maine survey employers wished to be exempt. The DOL said they must meet the FLSA because they are not in a learned profession, due to the apprenticeship system still in place.

The DOL website provides a description of FLSA, as well as “learned profession” (§ 541.301). Its last sentence is particularly telling: “The typical symbol of the professional training and the best prima facie evidence of its possession is, of course, the appropriate academic degree, and in these professions an advanced academic degree is a standard (if not universal) perquisite.” To be a member of a learned profession, you must have the “appropriate academic degree,” and the “advanced academic degree” is standard. Of course, the non-four-year-surveying states do not meet this requirement.

The surveying “profession” is walking a fine line of professional recognition in the United States. The 1970s and 1980s movement to a national four-year degree standard has slowed, and many states now are not supporting that action today. The public image of the surveyor as a technician is very strong. The four-year degree standard is needed to clearly identify the surveyor as a professional in both the public’s eye and also according to these growing legal standards of a profession.

(For more on “The Learned Profession,” see Surveying the Capitol in the May 2009 issue.)
David W. Gibson is the founding program director of the Geomatics program at the University of Florida in Gainesville, Florida.




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