Back in October of last year, we discussed the disturbing case of Vizaline, a company founded in 2014 that uses public information (deeds and Google Earth images1, etc.), draws the deed lines with a software program that plots the bearings and distances, then Vizaline places that plot on an aerial image and produces a “Viza-Plat.” (See Figure 1, which is page 2 of a sample four-page Viza-Plat report.)
“Since its founding, the company has grown to six employees in Mississippi. It operates in five southeastern states and provides its services to over 30 banks, mostly in Mississippi.”2 Their website is currently “pleased to announce” it has expanded into Arkansas, Missouri and Tennessee.
In September of 2017, the Mississippi Board of Licensure for Professional Engineers and Surveyors (the “Board”) filed a complaint against Vizaline for practicing surveying without a license. In August 2018, Vizaline filed a counter-complaint against the individual members of the Board (“only in their official capacities as members”3), supported by an organization called the “Institute of Justice,”4 for violation of Vizaline’s First Amendment free speech rights. That lawsuit is still ongoing.
After filing its counter-complaint, Vizaline removed the case to Federal Court5 on the constitutional issue of free speech, citing a federal jurisdiction question. The essence of Vizaline’s free-speech argument is found in paragraphs 3. and 4. of its counter-complaint, as follows:
3. Vizaline takes preexisting information and uses it to generate more information. The creation and dissemination of information—including as part of a business—is speech plainly within the protections of the First Amendment.
4. If the Board is permitted to continue its campaign against Vizaline, it will silence Vizaline’s constitutionally protected speech, depriving Vizaline’s customers of valuable information, and potentially bankrupt this Mississippi-founded and Mississippi-based tech startup business.
In creating its plat, Vizaline must make a determination (give an opinion) as to where the property lines on its Viza-Plat are located relative to the ground shown on the aerial overlay. If they are not doing this and giving other tacit advice,6 then what are they doing that can’t be accomplished with a copy of the county’s GIS tax map?
Not All Speech is Free
In December of 2018, the Federal Court rendered a Memorandum Opinion and Final Judgment dismissing Vizaline’s free speech complaint against the Board. First, the court clarified Vizaline’s complaint: “To be clear, Plaintiffs here do not challenge the Board’s interpretation of the Mississippi statutes as it applies to Plaintiffs’ business activity. It is solely a constitutional challenge to the Board’s use of licensing restrictions to prohibit Plaintiffs from engaging in activity the Board deems surveying.”7 Then the court clarified the Board’s position: “The Board has determined that Plaintiffs’ geospatial imaging services involve activities constituting the practice of surveying, which Plaintiffs are not licensed to do.”
Citing United States Supreme Court precedence, the court determined:
States may regulate professional conduct, even though that conduct incidentally involves speech. … States have broad power to establish standards for licensing practitioners and regulating the practice of professionals. There is no right to practice medicine which is not subordinate to the police power of the states. And the Supreme Court has long held that ‘the first Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.’ Pursuant to this principal, there is a robust line of doctrine concluding that state regulation of the practice of a profession, even though that regulation may have an incidental impact on speech, does not violate the Constitution.8
Back to the Future
Vizaline is now apparently going after the definition of surveying under Mississippi law this current legislative session. In my October column, we looked at the Pennsylvania case of Southeastern Reprographics v. State Registration Board,9 where the Pennsylvania Board went after a GIS consulting firm for practicing land surveying without a license and lost, primarily because of the NCEES’s definition. Fortunately, the Mississippi bill died — at least for now. Presumably, it could be reintroduced next session, so the issue is likely not over.
A source close to the situation told me that the bill was being supported by a bank or banks who are presumably clients of Vizaline. If this is true, the only reason for doing that would be so the banks could continue to hire Vizaline for its cheap surveys of the properties the banks are lending money on. At this point, we can make this assumption: Vizaline and its banker buddies wouldn’t be going after the definition of surveying unless they believe that Vizaline may have stepped over the line — so to speak. An interesting question is what do the banks call it?
The Definition of Surveying
Since the Mississippi law mimics the NCEES Model Law, it is as flawed as all the rest. The primary reasons, as discussed in last December’s column, are that the definition does not address the core issue of what a survey of property really is and attempts to regulate “professional services” associated with making measurements to be used in the development of certain products, such as maps, and involving data systems, such as GIS. These and other problems with the definition notwithstanding, the language of the proposed revision attempts to carve out an exception under “The practice of surveying.”
The practice of surveying does not include work products that represent only a generalized location of a feature, object or boundary upon which the public would not reasonably rely as the precise location of that feature, object or boundary, or the transcription of previously created data into any presentation format by manual or electronic means, and the maintenance thereof, provided that the data is clearly not intended to indicate the authoritative location of property boundaries, the precise definition of the shape or contour of the earth, or the precise location of fixed works of humans.10
What constitutes the public’s reasonable reliance? Experience has taught us that the public often thinks a tax map, especially with an aerial overlay, is an official survey of their property — even though no reasonable surveyor, GIS mapper at the tax office, title attorney or title company would think so. So how is the public to know that a Viza-Plat, that they paid for at the closing and no doubt received a copy of, is not a survey of their property? The report does have a lame disclaimer, but we also know that nobody pays attention to disclaimers on tax maps.
The Board Chimes In
On or about Feb. 6, the Mississippi Board posted a “Declaratory Opinion [on] The Practice of Surveying,” on its website. This opinion starts off with the following:
The definition of the practice of land surveying includes all activities where the resulting work product represents the precise location of a feature, object, or boundary with reference to the surface or subsurface of the earth and is a work product upon which the public is intended to reasonably rely as being the precise location of that feature, object, or boundary so located. This is true regardless of the technology or method employed. These activities must be accomplished by, or under the direct supervisory control of, a professional land surveyor. [Emphasis added.]
This language has the same problem as the proposed revision to the law. What constitutes reasonable reliance? Then the Board lists nine activities that it does not consider land surveying. The first eight deal with “print media,” “educational institutions,” “government agencies,” transcriptions of “previously georeferenced data” and “public records,” “inventory maps,” and a few other select “databases.” The ninth exception is all other “work products” that contain the following, specific, disclaimer:
This work product represents only generalized locations of features, objects or boundaries and should not be relied upon as being legally authoritative for the precise location of any feature, object or boundary.
Current Viza-Plats do not contain this specific disclaimer, but that’s an easy fix. The question remains: is a Viza-Plat a survey of property or not?
The Real Problem
The real problem with the whole Vizaline issue is that it does — unlike the NCEES Model Law — touch on the core issue of surveying property. Vizaline with its Viza-Plat is making a conscious decision on where to position the aerial image over its deed-line plot. In other words, Vizaline is giving an opinion on the on-the-ground location of the property lines that are the subject of the report. Licensed land surveyors are the only professionals licensed and sanctioned by the state to give such an opinion.11 This is the ‘essence’ of surveying property and the only reason that land surveyors need to be regulated — and the only reason Vizaline needs to be stopped.
I suppose this lawsuit could determine if the NCEES definition of surveying being used by our boards across the country is able to repel the coming onslaught of advancing technology that wants to invade the field. The board’s victory in Federal Court over the separate issue of free speech aside — I have my doubts. Can we redirect the ship and avoid the iceberg that is directly in front of us? Somebody go wake up the captain!
- It is doubtful that Google Earth images are “public” information, but apparently Vizaline is using them as such and selling that information as a part of their typical report. See Figure 1.
- “Madison tech-biz says rights are being violated by state board trying to shut him down,” Mississippi Clarion Ledger online, by Jimmie E. Gates, July 13, 2018.
- Vizaline’s counter-complaint at paragraph 15.
- We are not sure if this organization is associated with the “Justice League,” which members includes the likes of Batman, Superman and Wonder Woman, but we are not ruling out that possibility.
- The United States District Court for the Southern District of Mississippi, Northern Division, Cause No. 3:18CV531-LG-RHW, Memorandum Opinion, filed 12/20/18.
- Vizaline freely admits in their court filings that they give their clients “specialized advice.”
- Memorandum Opinion, Footnote 1.
- Memorandum Opinion, at 6 and 7. Internal citations omitted.
- Southeastern Reprographics, Inc. v. State Registration Board for Professional Engineers, Land Surveyors and Geologist, 139 A.3d 323 (Pa.Cmwlth.2016).
- Exception to “The Practice of Surveying” advanced by Mississippi Senate Bill No. 2496 (2019).
- At least until a judge with subject matter jurisdiction and in personam jurisdiction over the parties is put in a position to make that decision.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.