JOSEPH ELFELT 20707 NE 120th St - Property Line Maps...client receives a link they can click which displays the client’s approximate property corners and approximate property lines

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1First amended verified petition for writ of administrative mandate

JOSEPH ELFELT20707 NE 120th StRedmond, WA, [email protected]

JOSEPH ELFELT, IN PRO PER

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SACRAMENTO

In the matter of the accusation against:

JOSEPH ELFELT

Petitioner

vs

Board for Professional Engineers, LandSurveyors, and Geologists

andAdministrative Law Judge Coren D.Wong

Respondent

)))))))))))))))

Case No: 34-2015-80002130

Date: _____________________Time: _____________________Dept: 29Judge: Timothy M. Frawley

FIRST AMENDEDVERIFIED PETITION FOR WRIT OF

ADMINISTRATIVE MANDATE (CCP § 1094.5)

By verified petition, petitioner alleges as follows in support of his request for a writ of

administrative mandate.

PARTIES

1. Petitioner Joseph Elfelt operates an internet-based business in his home in Washington

State.

Take notice: Answering that a document “speaks for itself” is not anallowable answer and you will be deemed to have admitted the allegation.

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When petitioner refers to “board” he means the appointed board members acting as the 1

Board for Professional Engineers, Land Surveyors, and Geologists and he does not mean theboard’s staff.


2. Respondent Board for Professional Engineers, Land Surveyors, and Geologists (“board”)

is a state administrative board. This board issued an order which affirmed a citation that was1

issued by the board’s executive officer. The citation alleges that petitioner is doing land

surveying in California without a license by performing or offering to perform activities

described at Business and Professions Code (“BPC”) § 8726(c) and 8726(n). All further

statutory references will be to this code unless otherwise noted.

3. Respondent administrative law judge Coren D. Wong conducted the hearing in this case

and issued a proposed decision.

VENUE and JURISDICTION

4. Venue is proper in this court since the respondent is a state administrative board with its

office in Sacramento County. This court has jurisdiction of this case pursuant to the

Administrative Procedures Act (“APA”) § 11523 and Code of Civil Procedure (“CCP”) § 1094.5

STATEMENT OF FACTS

INTRODUCTORY ALLEGATIONS

5. A hearing before an administrative law judge was held on January 22, 1015. Petitioner

ordered the transcript of that hearing and has previously provided the respondent with a copy of

that transcript.

6. Petitioner operates an internet-based business in his home in Washington State.

Petitioner markets his business through a website at http://www.PropertyLineMaps.com. This

business is based on first-of-its-kind software that petitioner developed.

7. The order at issue in this case includes a finding that there is no evidence that anyone

has been harmed by petitioner’s business.

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8. None of petitioner’s clients have complained to the board about the petitioner.

9. There is no finding and no evidence that petitioner visits his client’s property for any

purpose.

10. There is no finding and no evidence that petitioner offers to visit his client’s property for

any purpose.

11. Some property owners have lawful reasons for wanting latitude longitude coordinates for

approximate locations where their property corners are located.

12. Some property owners have lawful reasons for wanting online maps that show

approximately where their property lines are located.

13. Petitioner’s clients have included (1) property owners who are looking for existing survey

stakes at their property corners, (2) hunters who want to make a good faith attempt to stay on

land where they have the right to hunt, (3) people selling land that want to include in their

marketing material an online map that shows approximately where the property lines are located

and (4) people buying land that want to see approximately where the property lines are located.

14. There is no finding and no evidence that when used for the purpose of helping to locate

existing survey stakes that the approximate property corner coordinates produced by petitioner’s

business (1) harm the public in any respect or (2) constitute the practice of land surveying as

defined by BPC § 8726(c). Land surveyor Kovach testified at the hearing that when used for

this purpose the approximate coordinates petitioner produces would *not* constitute surveying

without a license.

15. There is no finding and no evidence that when used as described above by hunters,

people selling land and people who have bought land that the approximate property corner

coordinates produced by petitioner’s business (1) harm the public in any respect or (2) constitute

the practice of land surveying as defined by BPC § 8726(c).

16. Petitioner’s website states several times that the approximate property corner

coordinates petitioner produces cannot be used to determine the actual location of property lines

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and property corners on the ground and if someone needs to know exactly where their property

lines and corners are located then they need to contact a land surveyor.

17. Clients email their land survey to petitioner. The software that petitioner developed is

used to process the survey. As part of that processing, petitioner uses his software to copy the

survey by tracing it on his computer screen. Petitioner’s software produces the approximate

latitude longitude coordinates for the corners of the client’s land.

18. The property corner coordinates produced by petitioner’s software are repeatedly

characterized on petitioner’s website with the word “approximate”.

19. Petitioner delivers the approximate corner coordinates to clients in two forms. First, each

client receives a link they can click which displays the client’s approximate property corners and

approximate property lines on the Google aerial. Second, each client receives a GPX file which

can be loaded into handheld GPS units. These two deliverables constitute the product that

petitioner sells.

Chronology of proceedings

20. On 5-16-2013 a complaint against petitioner was filed with the board by Bryan Mundia,

a land-surveyor-in-training.

21. On 6-5-2013 petitioner sent an email to board staffer Larry Kereszt. In part, that email

cited several places on petitioner’s website where he tells everyone *not* to use the approximate

property corner coordinates he produces to mark their property corners or property lines on the

ground and if that is what they need to do then they have to hire a surveyor.

22. In January 2014 a citation was prepared, signed by the executive officer and served on

petitioner. The citation alleges that petitioner has violated BPC § 8726(c) for the reason that

clients might use the approximate property corner coordinates produced by petitioner to trace

their actual property lines on the ground. The citation also alleges that petitioner has violated

BPC § 8726(n) by making a statement of accuracy about a map.

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23. A document titled “Statement of Rights” was attached to the citation. That document

states “[t]he Executive Officer shall within 30 days from receipt of a written request, hold an

informal conference with the cited person and/or the cited person’s legal counsel or authorized

representative.” (emphasis added)

24. On 1-27-2014 petitioner sent a letter requesting an informal conference with the

executive officer as provided for by the citation. There is no evidence that the executive

officer held an informal conference as requested by petitioner.

25. In February 2014 the citation was put onto the appeal track with the parties being the

board’s executive officer and petitioner Joseph Elfelt.

26. On 1-21-2015 petitioner filed a hearing brief.

27. On 1-22-2015 an administrative law judge conducted the hearing in this case.

28. On 1-23-2015 petitioner filed a supplemental authority.

29. On 1-31-2015 petitioner filed a reply in support of his supplemental authority.

30. On 2-19-2015 the administrative law judge issued proposed decision.

31. On April 15, 2015 petitioner filed a motion for reconsideration which cited controlling

California appellate authority which the attorney for the executive officer and the administrative

law judge’s proposed order completely ignored.

32. On April 16, 2015 the board issued an order adopting the proposed decision.

33. On April 17, 2015 the board issued a stay to consider petitioner’s motion for

reconsideration.

34. On June 14, 2015 the board issued an order declining to grant reconsideration.

FIRST CAUSE OF ACTION

(Petitioner cannot be punished based on speculation of product misuse by clients)

35. Petitioner hereby incorporates by reference all allegations set forth above.

36. The order at p.14 cites BPC § 8726(c) and states that petitioner:

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“offered to perform and performed land surveying services without legal authorizationby offering to provide approximate ground coordinates from which clients can tracetheir own boundaries.” (emphasis added)

37. With respect to BPC § 8726(c) the board has abused its discretion in that the board has

not proceeded in the manner required by law, the order or decision is not supported by the

findings and the findings are not supported by the evidence.

38. Petitioner’s website informs everyone that the approximate coordinates he provides are

not to be used for the purpose of determining exactly where property corners and property

boundaries are located on the ground and if exact locations of corners and boundaries is what

someone needs then they must hire a licensed surveyor.

39. There is no finding and no evidence that petitioner offers approximate property corner

coordinates for the purpose of helping clients trace their exact property boundaries on the

ground.

40. If a client uses the approximate corner coordinates provided by petitioner to attempt to

determine their exact property boundaries on the ground, then the client is doing so contrary to

the instructions on petitioner’s website.

41. There is no finding and no evidence that any of petitioner’s clients have used, or are

planning to use, the approximate corner coordinates provided by petitioner for the purpose of

attempting to determine their exact property boundaries on the ground.

42. The conclusion in the order that Petitioner has engaged in surveying without a license as

defined by BPC § 8726(c) is based on the speculation that petitioner’s clients will ignore

instructions posted on petitioner’s website which provide limitations on the proper use of the

approximate property corner coordinates.

43. The order does not cite any legal theory as the basis for punishing the seller of a product,

like the petitioner, merely on the 100% speculation that one or more buyers of the product might

misuse the product at some unknown time in the future and contrary to express written

instructions prohibiting such use.

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44. As part of the hearing process petitioner submitted written argument citing California

appellate decisions holding that in civil licensing cases the statutes must be strictly construed

against the state and liberally construed in favor of the accused.

45. The board failed to proceed in the manner required by law for the reason that the board

failed to construe BPC § 8726(c) strictly against the state and liberally in favor of petitioner.

46. The board failed to proceed in the manner required by law for the reason that there is no

language in BPC § 8726(c) that justifies issuing a citation to a person like petitioner who

does not personally appear on the client’s property, who does not offer to personally appear on

the client’s property, and who does not direct anyone to personally appear on the client’s

property, for the purpose of tracing the client’s actual property lines on the ground or performing

any of the other activities listed in BPC § 8726(c).

47. The board failed to proceed in the manner required by law for the reason that there is no

language in BPC § 8726(c) that justifies issuing a citation to the petitioner based on the

speculation that one or more of petitioner’s clients might at some unknown time in the future

ignore the instructions on petitioner’s website and attempt to use the approximate property

corner coordinates produced by the petitioner to trace their actual property lines on the ground

and/or mark their actual property corners.

SECOND CAUSE OF ACTION

(Petitioner has not made a statement of accuracy about a record of survey)


49. The order at p.14 cites BPC § 8726(n) and says:

“[B]y stating the level of accuracy of the property corner information he provides asbeing ‘within 30 feet of accurate on average’ on Property Line Maps website,respondent is practicing land surveying as specified in Business and Professions Codesection 8726, subdivision (n).”

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50. With respect to BPC § 8726(n) the board has abused its discretion in that the board has

not proceeded in the manner required by law, the order or decision is not supported by the

findings and the findings are not supported by the evidence.

51. Land surveyor Kovach testified that petitioner has not made a statement of accuracy

regarding “measured survey data” as that phrase appears in BPC § 8726(n).

52. There is no finding and no evidence that petitioner has made a statement of accuracy

regarding “measured survey data” as that phrase appears in BPC § 8726(n).

53. A “record of survey” is the map that a land surveyor prepares.

54. There is no finding and no evidence that the online maps prepared by the petitioner

meet the definition of “record of survey” provided by BPC § 8763, 8764 and 8764.5.

55. As part of the hearing process petitioner argued that the legislature gave the word “map”

a particular meaning in the survey statutes by using the word “map” and the phrase “record of

survey” as synonyms in BPC § 8763, 8764, 8770 and 8773(4)(c).

56. As part of the hearing process petitioner filed written argument citing California

authorities reiterating the extremely well known rule that when the legislature gives a particular

meaning to a word then that same word must be given the same meaning in other statutes dealing

with the same topic.


failed to follow or even acknowledge the authority described in the prior paragraph.


failed to construe BPC § 8726(n) strictly against the state and liberally in favor of petitioner.

59. During the hearing process the attorney for the executive officer did not challenge,

dispute or rebut in any manner petitioner’s authority and argument that (1) the legislature gave

the word “map” a particular meaning in the survey statutes and (2) the word “map” in BPC §

8726(n) must be given the same meaning as the word “map” in BPC § 8763, 8764, 8770 and

8773(4)(c).

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60. In BPC § 8763, 8764, 8770 and 8773(4)(c) the legislature used the word “map” and the

phrase “record of survey” as synonyms.

61. The word “map” in BPC § 8726(n) means ““record of survey”.

62. Land surveyor Kovach testified that petitioner has not made a statement of accuracy

regarding any “record of survey”.

63. There is no finding and no evidence that petitioner has made a statement of accuracy

regarding any “record of survey”.

64. During the hearing land surveyor Kovach did not qualify herself as an expert on the rules

of statutory construction.

65. During the hearing process the attorney for the executive officer never argued that the

word “maps” in BPC § 8726(n) was ambiguous.

66. During the hearing process the attorney for the executive officer cited a dictionary

definition for the word “map” that included “a representation, usually on a flat surface, as of the

features of an area of ... a portion of the heavens...”. (emphasis added)

67. The board has not proceeded in the manner required by law for the reason that the board

concluded that petitioner has made a statement of accuracy regarding a map but failed to decide

the meaning of the word “maps” in BPC § 8726(n) even though the parties disputed that critical

issue as part of the hearing process.

THIRD CAUSE OF ACTION

(No jurisdiction for executive officer to decide petitioner is surveying without a license)


69. The order at issue in this case contains a finding stating that the executive officer

“has made a determination that there is sufficient evidence to support the Board’sconclusion that respondent [Petitioner Elfelt] engaged in such activity such thatissuance of a citation is justified.” Order p.10. (emphasis added)

70. There is no evidence to support the finding that the appointed board members made

any such “conclusion” (see prior paragraph) prior to issuance of the citation to petitioner.

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71. A board staffer testified at the hearing that the appointed board members were not

involved at this stage of the proceedings.

72. The appointed board members were *not* involved in the decision-making process that

led up to the issuance of the citation that was served on the petitioner.

73. Prior to when the citation was prepared and served on petitioner, the board’s executive

officer and/or other people employed as staff by the board made a decision that petitioner had

violated the statutes and was guilty of surveying without a license.

74. The decision described in the prior paragraph required the executive officer and/or other

people employed as staff by the board to exercise judgment and discretion.

75. As part of the hearing process petitioner submitted written argument citing California

appellate decisions holding that the appointed board members lack the power to delegate to any

of their staff the exercise of any of the board’s judgment or discretion unless there is an express

statute allowing that delegation. This is the legal doctrine known as “delegation of authority”.

76. During the hearing process the attorney for the executive officer did not challenge,

dispute or rebut in any manner petitioner’s authority and argument described in the prior

paragraph.

77. The board failed to proceed in the manner required by law in that its orders in this case

failed to follow or even acknowledge the authority petitioner cited on delegation of authority.

78. The task of issuing a citation is a ministerial task that is performed after a decision is

made that a citation is warranted. The ministerial task of issuing a citation is described by Cal.

Code of Regs., tit. 16, § 472.

79. There is no express language in Cal. Code of Regs., tit. 16, § 472 or in any other

regulation that purports to delegate to the executive office or any other member of the board’s

staff the power to exercise judgment and discretion for the purpose of deciding whether or not

petitioner is violating the statutes that prohibit surveying without a license.

80. If, arguendo, the language of Cal. Code of Regs., tit. 16, § 472 is interpreted as

delegating to the executive office the power to exercise judgment and discretion for the purpose

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of deciding whether or not petitioner is violating the statutes that prohibit surveying without a

license, then that regulation is void ab initio for the reason that there is no statute that expressly

authorizes the appointed board members to delegate the exercise of their judgment and discretion

for this purpose and thus the board had no jurisdiction to delegate its power in this manner.

81. Under either or both of the theories described in the preceding two paragraphs, the

citation issued by the executive officer to petitioner is void ab initio for the reason that the

executive officer has no jurisdiction to exercise judgment and discretion for the purpose of

deciding that petitioner has violated the statutes that prohibit surveying without a license and the

orders issued by the board constitute an abuse of discretion for the reason that they purport to

affirm a void citation and by doing so the board has not proceeded in the manner required by law.

82. Only the appointed board members have jurisdiction to exercise judgment and discretion

for the purpose of deciding whether petitioner has violated the statutes that prohibit surveying

without a license.

83. A void citation cannot be made valid by any action of the appointed board.

FOURTH CAUSE OF ACTION

(No jurisdiction for executive officer to decide the amount of a fine)


85. The order at issue in this case contains a finding at page 10 ¶ 20 acknowledging that the

decision to impose a fine on petitioner in the amount of $5,000 was made by the board’s

executive office who is the “complainant” in the order.

86. There is no finding and no evidence that prior to issuance of the citation the board

played any role in deciding the amount of the fine.

87. As part of the hearing process petitioner submitted written argument citing BPC § 125.9

which includes a requirement that it is the board that assesses any fine and in doing so the board

“shall” consider a list of factors.

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88. The task of considering the factors listed in BPC § 125.9(b)(3) and deciding on the

amount of a fine requires the exercise of judgment and discretion.

89. The board failed to proceed in the manner required by law in that its orders in this case

failed to follow or even acknowledge the provisions of BPC § 125.9 which grant power only to

the board to consider the listed factors and assess a fine.

90. As justification for allowing the executive officer to consider the statutory factors and

decide the amount of the fine, the board is relying on Cal. Code of Regs., tit. 16, § 472.1 which is

a regulation adopted by the board.

91. There is no statute that expressly authorizes the appointed board members to delegate

the exercise of their judgment and discretion for the purpose of considering the factors listed in

BPC § 125.9(b)(3) and deciding the amount of a fine.

92. The board lacked lawful power to delegate the exercise of their judgment and discretion

by adopting Cal. Code of Regs., tit. 16, § 472.1 and therefore this regulation is void ab initio.

93. The citation issued by the executive officer to petitioner is void ab initio for the reason

that the executive officer has no jurisdiction to exercise judgment and discretion for the purpose

of considering the factors listed in BPC § 125.9(b)(3) and deciding the amount of the fine and the

orders issued by the board constitute an abuse of discretion for the reason that they purport to

affirm a void citation and by doing so the board has not proceeded in the manner required by law.

94. Only the appointed board members have jurisdiction to exercise judgment and discretion

for the purpose of considering the factors listed in BPC § 125.9(b)(3) and deciding the amount of

the fine.

FIFTH CAUSE OF ACTION

(There was not a fair hearing)

Section 1


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96. The requirement for a fair hearing includes a requirement for a fair order as a result of

the fair hearing.

97. This case required administrative law judge Wong to apply the rules of statutory

construction to several statutes and administrative regulations in a fair and unbiased manner.

98. Part of the hearing record is an extensive brief filed by petitioner. Petitioner’s hearing

brief is generally similar in style, appearance and content to briefs filed by attorneys.

Section 2 - meaning of “maps” in BPC § 8762(n)

99. The allegation in the citation that petitioner made a statement of accuracy about maps

turns on the meaning of the word “maps” in BPC § 8726(n).

100. As part of the hearing process, the parties disputed the meaning of the word “maps” in

BPC § 8726(n).

101. Judge Wong had a duty to make a legal conclusion in his proposed order as to the

meaning of the word “maps” in BPC § 8726(n).

102. Judge Wong refused to perform the duty described in the prior paragraph.

103. Petitioner’s hearing brief included authority and argument for the proposition that

licensing statutes, including those at issue in this case, are strictly construed against the board and

liberally construed in favor of the petitioner. The authorities petitioner provided were People v.

Vis (1966) 243 Cal. App. 2d 549, 52 Cal. Rptr. 527 and Rominger v. Foremost-Mckesson Inc.

(1982) 134 Cal. App. 3d 165, 184 Cal. Rptr. 439. No one provided judge Wong with any oral or

written argument citing any authority challenging in any manner the authority submitted by

petitioner that is described in this paragraph.

104. The proposed order prepared by Judge Wong does not cite any of the petitioner’s

authority that is described in the prior paragraph. The proposed order prepared by Judge Wong

failed to include any mention of the rule of statutory construction described in the prior

paragraph.

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105. In adopting the statutes pertaining to land surveying the legislature was dealing with

the types of maps that land surveyors produce.

106. In written argument submitted to judge Wong the petitioner argued the legislature

used the word “map” and the phrase “record of survey” as synonyms in BPC § 8763, 8764, 8770

and 8773(4)(c). No one made any argument to judge Wong that the legislature did not use “map”

and “record of survey” as synonyms in these other sections of the survey statutes.

107. Judge Wong’s proposed order fails to discuss in any manner petitioner’s position that

the legislature used “maps” and “record of survey” as synonyms elsewhere in the survey statutes

and therefore “maps” in BPC § 8726(n) means “record of survey”.

108. It is reasonable to read the word “maps” in BPC § 8726(n) as meaning “record of

survey”.

109. Despite the unopposed authority provided by petitioner, judge Wong refused to apply

the rule of statutory construction that licensing statutes, including those at issue in this case, are

strictly construed against the board and liberally construed in favor of the petitioner.

110. If judge Wong had construed BPC § 8726(n) strictly against the board and liberally in

favor of petitioner then judge Wong’s proposed order would have concluded (1) that the word

“maps” in BPC § 8726(n) means “record of survey” and (2) that petitioner has not made any

statement of accuracy about the type of maps that are the subject of BPC § 8726(n).

111. By reading just the proposed order, the board was unaware (1) that petitioner had

presented authority and argument for the proposition that licensing statutes, including those at

issue in this case, are strictly construed against the board and liberally construed in favor of the

petitioner, (2) that applying this rule of statutory construction leads to the conclusion that “maps”

in BPC § 8726(n) means “record of survey” and (3) that land surveyor Kovach testified at the

hearing that petitioner has not made a statement of accuracy about any “record of survey”.

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Section 3 - delegation of authority

112. Petitioner’s hearing brief included authority and argument on the legal doctrine

known as “delegation of authority”. Based on this authority, petitioner’s brief argued that there

was no statute that expressly allowed the board to delegate the exercise of any of its judgment

and discretion to its staff and therefore board regulations 472 and 472.1 were void and the

citation was also void since it was based on those void regulations. No one provided judge

Wong with any oral or written argument citing any authority challenging in any manner the

authority submitted by petitioner that is described in this paragraph.

113. The proposed order prepared by Judge Wong does not cite any of the authority

described in the prior paragraph. The proposed order prepared by Judge Wong failed to include

any mention of the legal doctrine known as “delegation of authority”. The proposed order

prepared by Judge Wong failed to discuss in any manner the limitations on the board’s power to

delegate to its staff the exercise of any of the board’s judgment and discretion.

114. The proposed order prepared by Judge Wong is silent regarding whether or not there

is any statute that expressly allows the board to delegate to its staff the exercise of any of the

board’s judgment and discretion.

115. In response to petitioner’s argument about “delegation of authority” the bottom of

page 10 of the proposed order prepared by Judge Wong cites to California Code of Regulations,

title 16, section 472. That citation points to a regulation adopted by the board and does not point

to a statute adopted by the legislature.

116. It is the position of the board that rule 472 delegates the exercise of judgment and

discretion to the executive officer for the purpose of deciding whether a person has violated the

statutes the prohibit surveying without a license such that a citation should be issued.

117. No one provided judge Wong with any argument claiming that there was a statute that

expressly authorized the board to delegate the exercise of its judgment and discretion for the

purpose of deciding whether a person has violated the statutes the prohibit surveying without a

license such that a citation should be issued.

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118. It is the position of the board that rule 472.1 delegates the exercise of judgment and

discretion to the executive officer for the purpose of considering a list of factors and deciding on

the amount of an administrative fine.

119. No one provided judge Wong with any argument claiming that there was a statute that

expressly authorized the board to delegate the exercise of its judgment and discretion to its

executive officer for the purpose of considering a list of factors and deciding on the amount of a

fine.

120. Despite the unopposed authority cited in petitioner’s hearing brief, judge Wong

refused to apply the “delegation of authority” rule that the board may not delegate the exercise of

any of its judgment and discretion unless there is a statute that expressly authorizes the board to

make that delegation.

121. If judge Wong’s proposed order had acknowledged and followed the “delegation of

authority” rules described in petitioner’s hearing brief, then the proposed order would have

concluded that (1) board rule 472 and 472.1 are void since the board lacked the power to delegate

the exercise of its judgment and discretion by adopting those rules and (2) the citation petitioner

received was void since it was based on void rules.

122. By reading just the proposed order, the board was unaware (1) that petitioner had

presented authority and argument on the legal doctrine known as “delegation of authority” and

(2) that applying that doctrine to this case leads to the conclusion that the citation is void.

Section 4 - the “conclusion” the board never made

123. During the hearing judge Wong listened to a staff person for the board give sworn

testimony stating that the board was not involved in the citation process.

124. Despite listening to the testimony described in the prior paragraph, the proposed order

prepared by Judge Wong states at the bottom of page 10 that the board made a “conclusion” in

this case prior to when the board’s executive officer issued the citation to petitioner.

125. The board did not make the “conclusion” described in the prior paragraph.

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126. On information and belief, the board played no role in this case until after judge

Wong issued his proposed order.

127. If the board had made the “conclusion” described at the bottom of page 10 of the

proposed order, then that “conclusion” would be a defense to petitioner’s claim that board

regulation 472 was void pursuant to the rules that limit the board’s power to delegate its

judgment and discretion.

Section 5

128. Judge Wong’s proposed order failed to discuss crucial elements of petitioner’s

defense to the citation.

129. By producing the proposed order with the above-described omissions, judge Wong

failed to produce a proposed order that fairly informed the board of (1) the authority and

argument petitioner presented as to the meaning of the word “maps” in BPC § 8726(n) and (2)

the authority and argument petitioner presented regarding the legal doctrine known as

“delegation of authority”.

130. Petitioner has been denied a fair hearing since the proposed order resulting from the

hearing was unfair towards petitioner due to (1) the above-described omissions and (2) a finding

that the board made a “conclusion” that the board never made.

131. By producing the proposed order with (1) the above-described omissions and (2) a

finding that the board made a “conclusion” that the board never made, judge Wong has showed

actual bias in favor of the board and against petitioner.

SIXTH CAUSE OF ACTION

(The board is biased against petitioner)


133. On information and belief, the board did not read petitioner’s hearing brief.

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134. On information and belief, the only documents from the record that the board read

are:

1. Judge Wong’s proposed order

2. Petitioner’s motion for reconsideration

3. Petitioner’s supplement to motion for reconsideration

4. Petitioner’s second supplement to motion for reconsideration

135. During the hearing the executive officer was represented by deputy attorney general

Phillip Arthur. Attorney Arthur did not file any papers with the board opposing petitioner’s

motion for reconsideration.

136. Petitioner’s motion for reconsideration alerted the board that the proposed order failed

to acknowledge or apply the rule of statutory construction that licensing statutes, including those

at issue in this case, are strictly construed against the board and liberally construed in favor of the

petitioner.

137. Petitioner’s motion for reconsideration also alerted the board that applying the rule of

statutory construction described in the prior paragraph leads to the conclusion (1) that “maps” in

BPC § 8726(n) means “record of survey” and (2) that petitioner has not made a statement of

accuracy about any “record of survey”.

138. The board adopted judge Wong's proposed order without any changes .

139. On information and belief, when the board adopted the proposed order the board

knew from reading the proposed order that the proposed order did not include a legal conclusion

as to the meaning of the word “maps” in BPC § 8726(n).

140. On information and belief, when the board adopted the proposed order the board (1)

knew from reading the proposed order that the proposed order stated that the board made a

“conclusion” in this case prior to when the citation was issued and (2) also knew that the board

did not make any such conclusion.

141. On information and belief, when the board denied petitioner’s motion for

reconsideration the board knew that petitioner’s motion was unopposed.

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142. On information and belief, when the board denied petitioner’s motion for

reconsideration the board knew from reading the petition for reconsideration (1) that petitioner

had provided authority to judge Wong stating the rule of statutory construction that licensing

statutes, including those at issue in this case, are strictly construed against the board and liberally

construed in favor of the petitioner, (2) that the proposed order did not discuss that rule of

statutory construction at all and (3) that petitioner asserted if that rule of statutory construction

was applied to this case it would lead to the conclusion that “maps” in BPC § 8726(n) means

“record of survey” for the reason that the legislature used “maps” and “record of survey” as

synonyms elsewhere in the survey statutes.

143. By adopting the proposed order without any changes despite being on notice that the

proposed order ignored a critical rule of statutory construction that, if it were applied, would lead

to a ruling in favor of petitioner, the board has showed that it is actually biased against petitioner.

THIS PETITION IS TIMELY

144. C.C.P. § 11523 provides:

If the petitioner, within 10 days after the last day on which reconsideration can beordered, requests the agency to prepare all or any part of the record, the time within whicha petition may be filed shall be extended until 30 days after its delivery to him or her.

145. On June 14, 2015 respondent board issued an order denying petitioner’s motion for

reconsideration.

146. On June 15, 2015 petitioner requested the agency prepare the record.

147. On June 16, 2015 the agency notified petitioner that it would prepare the record and

notify petitioner of the cost.

148. The agency has not yet notified petitioner of the cost to prepare the record and has

not delivered the record to petitioner.

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RELIEF REQUESTED

Petitioner requests judgment against respondent board as follows:

1. For a writ of mandate commanding the board to (1) vacate and set aside the citation the

board’s executive officer served on petitioner and (2) vacate and set aside the orders the board

issued which affirmed that citation.

2. For an order holding that only the appointed board members can decide if anyone has

violated the statutes that the board is charged with enforcing and the board’s staff has no lawful

power to make that decision and to the extent that Cal. Code of Regs., tit. 16, § 472 is interpreted

as delegating that decision making power to the executive officer, § 472 is void.

3. For an order holding (1) that only the appointed board members can decide on the amount

of an administrative fine and (2) that Cal. Code of Regs., tit. 16, § 472.1 is void.

4. For such other and further relief as the court deems just and proper.

Date: _____________________ Respectfully submitted by

_____________________________JOSEPH ELFELTIn Pro Per

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VERIFICATION BY PETITIONER JOSEPH ELFELT OF FIRST AMENDED

PETITION FOR WRIT OF ADMINISTRATIVE MANDATE

1. I am a fully qualified, adult resident of the State of Washington, and, if called as a witness

herein, I could testify fully to the matters set forth herein.

2. I have read the allegations contained in the First Amended Petition for Writ of

Administrative Mandate. All of the matters set forth therein are within my personal knowledge,

except those matters which are stated to be upon information and belief. As to those matters

within my personal knowledge, such matters are true and correct. As to such other matters stated

upon information and belief, I believe them to be true.

I declare under penalty of perjury that the foregoing is true and correct and that this verification

was executed by me on this ___ day of __________ 2015, at Redmond, Washington.

_____________________________Joseph ElfeltIn Pro Per

Documents

JOSEPH ELFELT 20707 NE 120th St - Property Line Maps...client receives a link they can click which displays the client’s approximate property corners and approximate property lines