Case No. 947-A
BEFORE THEBOARD FOR PROFESSIONAL ENGINEERS, LAND SURVEYORS, AND GEOLOGISTSDEPARTMENT OF CONSUMER AFFAIRSSTATE OF CALIFORNIAIn the Matter of the Accusation against:JOHN E. TRACYCase No. 947-A68 West StratfordThousand Oaks, CA 91360Civil Engineer License No. C 15566,Respondent.DECISIONThe attached Stipulated Surrender of License and Order is hereby adopted by theBoard for Professional Engineers, Land Surveyors, and Geologists as its Decision in the aboveentitled matter.This Decision shall become effective onIT IS SO ORDEREDJuly 27, 2012June 28, 20/2OriginalsignedSignedOriginalBOARD FOR PROFESSIONAL ENGINEERS.LAND SURVEYORS, AND GEOLOGISTSDepartment of Consumer AffairsState of California
KAMALA D. HARRISAttorney General of CaliforniaNMARC D. GREENBAUMSupervising Deputy Attorney GeneralSHAWN P. COOKDeputy Attorney GeneralState Bar No. 117851300 So. Spring Street, Suite 1702Los Angeles, CA 90013Telephone: (213) 897-9954Facsimile: (213) 897-2804Attorneys for Complainant9BEFORE THEBOARD FOR PROFESSIONAL ENGINEERS, LAND SURVEYORS, ANDGEOLOGISTSDEPARTMENT OF CONSUMER AFFAIRS10STATE OF CALIFORNIA11In the Matter of the Accusation Against:Case No. 947-A12JOHN E. TRACY68 West Stratford14STIPULATED SURRENDER OFLICENSE AND ORDERThousand Oaks, CA 91360Civil Engineer License No. C 1556615Respondent.161718IT IS HEREBY STIPULATED AND AGREED by and between the parties in thisproceeding that the following matters are true:1920PARTIES1.Richard B. Moore, PLS (Complainant) is the Executive Officer of the Board for21Professional Engineers, Land Surveyors, and Geologists. He brought this action solely in his2.2official capacity and is represented in this matter by Kamala D. Harris, Attorney General of the2324State of California, by Shawn P. Cook, Deputy Attorney General.2. John E. Tracy (Respondent) is represented in this proceeding by attorney Brian K.25Stewart, Esq., whose address is Collins, Collins, Muir & Stewart, LLP; P.O. Box 250; South26Pasadena, CA 91030.27283.On or about March 24, 1965, the Board for Professional Engineers, Land Surveyors,and Geologists issued Civil Engineer License No. C 15566 to John E. Tracy (Respondent). The1Stipulated Surrender of License (Case No. 947-A)
. -Civil Engineer License was in full force and effect at all times relevant to the charges brought inNAccusation No. 947-A and will expire on June 30, 2013, unless renewed.JURISDICTION. Accusation No. 947-A was filed before the Board for Professional Engineers, LandSurveyors, and Geologists (Board), Department of Consumer Affairs, and is currently pendingagainst Respondent. The Accusation and all other statutorily required documents were properlyserved on Respondent on May 18, 2011. Respondent timely filed his Notice of Defensecontesting the Accusation. A copy of Accusation No. 947-A is attached as Exhibit A and9incorporated by reference.10ADVISEMENT AND WAIVERS115. Respondent has carefully read, fully discussed with counsel, and understands the12charges and allegations in Accusation No. 947-A. Respondent also has carefully read, fully13discussed with counsel, and understands the effects of this Stipulated Surrender of License and14Order.156.Respondent is fully aware of his legal rights in this matter, including the right to a16hearing on the charges and allegations in the Accusation; the right to be represented by counsel, at17his own expense; the right to confront and cross-examine the witnesses against him; the right to18present evidence and to testify on his own behalf; the right to the issuance of subpoenas to compel19the attendance of witnesses and the production of documents; the right to reconsideration and20court review of an adverse decision; and all other rights accorded by the California21Administrative Procedure Act and other applicable laws.22237. Respondent voluntarily, knowingly, and intelligently waives and gives up each andevery right set forth above.CULPABILITY24258.Respondent does not admit the truth of each and every charge and allegation in26Accusation No. 947-A and does not admit any liability or fault. Notwithstanding the foregoing,27Respondent hereby freely and voluntarily surrenders his Civil Engineer License, No. C 15566 for28the Board's formal acceptance,2Stipulated Surrender of License (Case No. 947-A)
9. Respondent agrees not to petition for reinstatement of the surrendered License.NwARespondent agrees not to apply for any license issued by the Board for three years from theeffective date of the Decision and Order accepting this surrender. Respondent understands andagrees that if he ever applies for any license issued by the Board, the Board shall treat it as a newapplication for licensure. Respondent must comply with all the laws, regulations, and proceduresfor licensure in effect at the time the application is filed, including but not limited to submitting acompleted application and the requisite fee and taking and passing the required examination(s),and all of the charges and allegations contained in the Accusation shall be deemed to be true,correct, and admitted by Respondent when the licensing agency determines whether to grant or1011121314deny the application.10. Respondent understands that by signing this stipulation he enables the Board to issuean order accepting the surrender of his Civil Engineer License without further process.11. In exchange for these agreements, the Board will waive reimbursement of its costs ofinvestigation and prosecution in this matter.CONTINGENCY151612. This stipulation shall be subject to approval by the Board for Professional Engineers,17Land Surveyors, and Geologists. Respondent understands and agrees that counsel for18Complainant and the staff of the Board for Professional Engineers, Land Surveyors, and19Geologists may communicate directly with the Board regarding this stipulation and surrender,20without notice to or participation by Respondent or his counsel. By signing the stipulation,21Respondent understands and agrees that he may not withdraw his agreement or seek to rescind the22stipulation prior to the time the Board considers and acts upon it. If the Board fails to adopt this23stipulation as its Decision and Order, the Stipulated Surrender and Disciplinary Order shall be of24no force or effect, except for this paragraph, it shall be inadmissible in any legal action between25the parties, and the Board shall not be disqualified from further action by having considered this26matter.27283Stipulated Surrender of License (Case No. 947-A)
13. The parties understand and agree that facsimile copies of this Stipulated Surrender ofNLicense and Order, including facsimile signatures thereto, shall have the same force and effect asthe originals.14. This Stipulated Surrender of License and Order is intended by the parties to be anunintegrated writing representing the complete, final, and exclusive embodiment of their agreement.It supersedes any and all prior or contemporaneous agreements, understandings, discussions,negotiations, and commitments (written or oral). This Stipulated Surrender of License and Ordermay not be altered, amended, modified, supplemented, or otherwise changed except by a writingexecuted by an authorized representative of each of the parties.101115. In consideration of the foregoing admissions and stipulations, the parties agree thatthe Board may, without further notice or formal proceeding, issue and enter the following Order:ORDER1213141516IT IS HEREBY ORDERED that Civil Engineer License No. C 15566, issued toRespondent John B. Tracy, is surrendered and accepted by the Board for Professional Engineers,Land Surveyors, and Geologists.1.The surrender of Respondent's Civil Engineer License and the acceptance of the17surrendered license by the Board shall constitute the imposition of discipline against Respondent.18This stipulation constitutes a record of the discipline and shall become a part of Respondent's19license history with the Board for Professional Engineers, Land Surveyors, and Geologists.202. Respondent shall relinquish all rights and privileges as a civil engineer in California21as of the effective date of the Decision and Order of the Board adopting this Stipulation, including22the right to use any of the restricted titles associated with his license.233. Respondent shall cause to be delivered to the Board the pocket identification card(s)24 and wall certificate for this license on or before the effective date of the Decision and Order of the2526Board adopting this Stipulation.4. Respondent agrees not to petition for reinstatement of the surrendered license,27Respondent agrees not to apply for any license issued by the Board for three years from the28effective date of this surrender. Respondent understands and agrees that if he ever applies for anyStipulated Surrender of License (Case No. 947-A)
license issued by the Board, the Board shall treat it as a new application for licensure.NRespondent must comply with all the laws, regulations, and procedures for licensure in effect atthe time the application is filed, including but not limited to submitting a completed applicationand the requisite fee and taking and passing the required examination(s), and all of the chargesand allegations contained in the Accusation shall be deemed to be true, correct, and admitted byRespondent when the licensing agency determines whether to grant or deny the application.ACCEPTANCES00I have carefully read the above Stipulated Surrender of License and Order and have fullydiscussed it with my attorney, Brian K. Stewart, Esq. I understand the stipulation and the effect10it will have on my Civil Engineer License. I enter into this Stipulated Surrender, of License and11Order voluntarily, knowingly, and intelligently, and agree to be bound by the Decision and Order12of the Board for Professional Engineers, Land Surveyors, and Geologists.13DATED:14OriginalSignedWay 10,2012 OriginalSignedJOHN E. TRACYRespondent1536I have read and fully discussed with Respondent John E. Tracy the terms and conditionsand other matters contained in this Stipulated Surrender of Vicense and Order. I approve its form17and content.18DATED:OriginalsignedSignedDay 30, 2012 original19BRIAN K. STEWART, ESQ.Attorney for Respondent20ENDORSEMENT2122The foregoing Stipulated Surrender of License and Order is hereby respectfully submitted23for consideration by the Board for Professional Engineers, Land Surveyors, and Geologists of the24Department of Consumer Affairs.2526272855/ 30 /Stipulated Surrender of License (Case No. 947-A)
Dated :5 / 31 / 12Respectfully submitted,KAMALA D. HARRISAttorney General of CaliforniaNMARC D. GREENBAUMSupervising Deputy Attorney GeneralwOriginalSignedoriginal signedASHAWN P. COOKDeputy Attorney GeneralAttorneys for 252627286Stipulated Surrender of License (Case No. 947-A)
Exhibit AAccusation No. 947-A
KAMALA D. HARRISAttorney General of CaliforniaNMARC D. GREENBAUMSupervising Deputy Attorney Generalw45a8SHAWN P. COOKDeputy Attorney GeneralState Bar No. 117851300 So. Spring Street, Suite 1702Los Angeles, CA 90013Telephone: (213) 897-9954Facsimile: (213) 897-2804Attorneys for ComplainantBEFORE THE BOARD FORPROFESSIONAL ENGINEERS, LAND SURVEYORS, AND GEOLOGISTSDEPARTMENT OF CONSUMER AFFAIRSSTATE OF CALIFORNIA1011In the Matter of the Accusation Against:12JOHN E. TRACY1368 West StratfordThousand Oaks, CA 9136014Civil Engineer License No. C 1556615Case No. 947-AACCUSATIONRespondent.1617Complainant alleges:1819202122PARTIES1. Joanne Arnold (Complainant) brings this Accusation solely in her official capacity asthe Acting Executive Officer of the Board for Professional Engineers, Land Surveyors, AndGeologists , Department of Consumer Affairs (Board).2. On or about March 24, 1965, the Board issued Civil Engineer License No. C 15566 to23John E. Tracy (Respondent). The Civil Engineer License was in full force and effect at all times24relevant to the charges brought herein and will expire on June 30, 2011, unless renewed.25262728JURISDICTION3.This Accusation is brought before the Board under the authority of the followinglaws. All section references are to the Business and Professions Code unless otherwise indicated.111Accusation
STATUTORY PROVISIONS4.Section 118, subdivision (b), provides that the suspension, expiration, surrender orwcancellation of a license shall not deprive the Board of jurisdiction to proceed with a disciplinaryAaction during the period within which the license may be renewed, restored, reissued orreinstated.5.Section 6731 states, in pertinent part, that "Civil engineers registered prior toJanuary 1, 1982, shall be authorized to practice all land surveying as defined in Chapter 15(commencing with Section 8700) of Division 3."91011126. Section 8726 states, in pertinent part:"A person, including any person employed by the state or by a city, county, or city andcounty within the state, practices land surveying within the meaning of this chapter who, either ina public or private capacity, does or offers to do any one or more of the following:13.14"(e) By the use of the principles of land surveying determines the position for any15monument or reference point which marks a property line, boundary, or corner, or sets, resets, or16replaces any monument or reference point.17.18"(g) Determines the information shown or to be shown on any map or document prepared19or furnished in connection with any one or more of the functions described in subdivisions (a),20(b), (c), (d), (e), and (f).21.22"(n) Renders a statement regarding the accuracy of maps or measured survey data. . . ."237.24"(a) A licensed land surveyor or registered civil engineer authorized to practice land25surveying shall use a written contract when contracting to provide professional services to a client26pursuant to this chapter. The written contract shall be executed by the licensed land surveyor or27registered civil engineer and the client, or his or her representative, prior to the licensed land28surveyor or registered civil engineer commencing work, unless the client knowingly states inSection 8759 states, in pertinent part:Accusation
writing that work may be commenced before the contract is executed. The written contract shallinclude, but not be limited to, all of the following:.) The name, address, and license or certificate number of the licensed land surveyor orregistered civil engineer, and the name and address of the client. . . ."8. Section 8780 states, in pertinent part:"The board may receive and investigate complaints against licensed land surveyors andregistered civil engineers, and make findings thereon."By a majority vote, the board may reprove, suspend for a period not to exceed two years,10or revoke the license or certificate of any licensed land surveyor or registered civil engineer,11respectively, licensed under this chapter or registered under the provisions of Chapter 712(commencing with Section 6700), whom it finds to be guilty of:13"(a) Any fraud, deceit, or misrepresentation in his or her practice of land surveying.14"(b) Any negligence or incompetence in his or her practice of land surveying.15.16"(d) Any violation of any provision of this chapter or of any other law relating to or17involving the practice of land surveying. ."18REGULATORY PROVISIONS199. California Code of Regulations, title 16, section 404, subdivision (w), provides:20"For the sole purpose of investigating complaints and making findings thereon under21Sections 6775 and 8780 of the Code, 'negligence' as used in Sections 6775 and 8780 of the Code22is defined as the failure of a licensee, in the practice of professional engineering or land23surveying, to use the care ordinarily exercised in like cases by duly licensed professional24engineers and land surveyors in good standing."25RESTITUTION2610. Government Code section 1 1519 states, in pertinent part:27"(b) A stay of execution may be included in the decision or if not included therein may be28granted by the agency at any time before the decision becomes effective. The stay of executionAccusation
provided herein may be accompanied by an express condition that respondent comply withNspecified terms of probation; provided, however, that the terms of probation shall be just andreasonable in the light of the findings and decision.4. .(d) As used in subdivision (b), specified terms of probation may include an order ofONrestitution. Where restitution is ordered and paid pursuant to the provisions of this subdivision,the amount paid shall be credited to any subsequent judgment in a civil action. . ."COST RECOVERY11. Section 125.3 provides, in pertinent part, that the board may request the10administrative law judge to direct a licentiate found to have committed a violation or violations of11the licensing act to pay a sum not to exceed the reasonable costs of the investigation and12enforcement of the case.1314KILLICK PROJECT12. On or about April 5, 2005, Respondent dba CVE Engineering, Inc. contracted with15Laurie and Greg Killick for The Killick Family Trust, as owner-builder, to prepare a topographic16survey and map for purpose of constructing a new single family residence, and in about17November 2005, Respondent contracted to perform a field survey, stake the property setbacks,18and mark and identify the building corners at 1265 Combs Road, Newbury Park, California,19(Killick Project). Respondent's contract was executed by an unregistered engineer, Francois20Rene Lussier.2113. The Killick Project's architectural site plans, by Ron Pucillo', were stamped approved22by the City of Thousand Oaks Community Development Department, Building Division, on or23about September 1, 2005, and by the City Planning division on or about October 24, 2005. The24approved plans show the structures first floor to have 10 feet setbacks from the property lines on25262728The Architect is well known in the industry as the professional who locates the residenceon a parcel and is responsible for complying with the city's planning and building departments'specifications and requirements for minimum setbacks, number of stories, structure height, openspace, and other requirements.The planning and building department requires a 5 feet property line structural setback.The architectural plan identifies a 10 feet setback that allows the second story cantilever overhang(continued.)Accusation
the east and west, and the second story has a cantilever overhang.14. On or about December 1, 2005, with a 300 retainer in-hand from Mr. and Mrs.NwKillick, the Respondent surveyed the Killick Project and set stakes marking the building cornersat 5 feet from the east property line.15. On or about February 22, 2006, the structural engineer's "Footing and Caisson Plans"were prepared by David Awrey, RCE 32782, and are typical of a structural engineer' in that theyshow the foundation design but do not show foundation distance relationship to the properly lines.The plan shows the marked caissons to be 10 feet deep.16. On or about March 22, 2006, Respondent and the structural engineer discussed10interior foundation dimensions for caisson staking.1117. On or between March 22, 2006, and July 14, 2006, Respondent marked the exterior12and interior caisson placements, at 5 feet from the east property line, and a contractor dug and13poured caissons and a structural foundation following Respondent's staked markings.1418. On or about July 14, 2006, Mr. and Mrs. Killick found that the contractor constructed15the foundation in an incorrect location by 5 feet and began mitigating measures to correct the16error.1719. On or about August 23, 2006, Mr. and Mrs. Killick filed a complaint with the Board18against Respondent, documenting a mitigating cost of 22,165.00, as of that date, with other costs19pending, to correct the misplaced caissons and foundation to build their new home.20212220. On or about August 31, 2006, an investigation w
Case No. 947-A 68 West Stratford Thousand Oaks, CA 91360 . Civil Engineer License No. C 15566, Respondent. DECISION . The attached Stipulated Surrender of License and Order is hereby adopted by the Board for Professional Engineers, Land Surveyors, and Geologists as its Decision in the above
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