Legal Issues for New York Architects; Part 1 of 6 – Complying with the Rules and Regulations on the Practice of Architecture

This is a continuing article series regarding Legal Issues for New York Architects. Originally presented by John Caravella, of the Law Offices of John Caravella, and Kimberly A. Steele of The Steele Law Firm and produced by HalfMoon Education Seminars, this presentation touches on the following topics, Complying with the Rules and Regulations on the Practice of Architecture (Part 1), Complying with New York Rules on Unprofessional Conduct (Part 2), Understanding and Complying with Barrier-Free Requirements (Part 3), Design and Construction Contract Law and Administration (Part 4), Understanding and Complying with the law on Design Professional Service Corporations (Part 5) and Building Code Updates (Part 6). Each series of topics discuss informative summaries of Legal Issues for New York Architects.

DEFINING THE PRACTICE OF ARCHITECTURE

Section 7301 of New York Education Law defines the practice of architecture as follows:

The practice of the profession of architecture is defined as rendering or offering to render services which require the application of the art, science, and aesthetics of design and construction of buildings, groups of buildings, including their components and appurtenances and the spaces around them wherein the safeguarding of life, health, property, and public welfare is concerned.  Such services include, but are not limited to consultation, evaluation, planning, the provision of preliminary studies, designs,  construction documents, construction management, and the administration of construction contracts.

Section 7302 of New York Education Law requires all individuals who practice architecture or use the title architect to be “licensed or otherwise authorized” to do so.

POWERS AND DUTIES OF THE NEW YORK STATE EDUCATION DEPARTMENT

The Department of Education, which is headed by the Board of Regents of The University of the State of New York, manages education in New York State and carries out education-related laws and policies, including (as they relate to New York architects):

  • Establishing requirements for credentials and degrees
  • Determine licensing standards to practice professions, including education and texting requirements
  • Review applications to practice professions and issue licenses
  • Waive education, experience, or examination requirements after determining that a party has substantially met the requirements to practice a profession
  • Charter institutions to provide professional education
  • Audit professionals for compliance with continuing education requirements
  • Manage triennial registration of professionals
  • Establish standards of professional conduct
  • Investigate and resolve complaints of professional misconduct

REQUIREMENTS FOR LICENSING AND RENEWAL

LICENSING REQUIREMENTS UNDER NEW YORK EDUCATION LAW SECTION 7304

  • Application (filed with Department of Education)
  • Education (Bachelor’s or higher degree in architecture)
  • Experience (satisfactory to the Board, totaling 8 years with college study)
  • Examination
  • Age (at least 21)
  • Citizenship (not required)
  • Good Moral Character (as determined by the Board)
  • Fees
    • $345 for examination and initial license
    • $175 for re-examination
    • $210 for each triennial registration

ALTERNATIVES TO DEGREE AND EXPERIENCE REQUIREMENTS UNDER SECTION 7304

  • “12 years of architectural work of a grade and character satisfactory to the board” with each complete year of college (satisfactory to the board) counting toward two of those 12 years (but not exceeding 9 years toward the 12)

ALTERNATIVES TO DEGREE, EXPERIENCE, AND EXAMINATION REQUIREMENTS UNDER SECTION 7304

  • 10 years of lawful practice of architecture in another state (satisfactory to the board) and the passing of an examination (satisfactory to the board)
  • “A certificate of qualification issued by the national council of architectural registration boards on the basis of the fulfillment of requirements satisfactory to the board”

Under Section 7305 of New York Education Law, an architect licensed in another state or county may obtain a limited permit to practice in New York State for purposes of completing one specific project.

MAINTAINING LICENSING/RENEWAL

New York Education Law Section 7308 requires licensed architects to begin mandatory continuing education after their first triennial registration period.

Mandatory continuing education during each three-year period:

  • 36 hours of continuing education, 24 of which must relate to healthy, safety, and welfare
  • $45 continuing education fee (in addition to triennial registration fee)
  • Required for the issuance of the triennial registration statement

Licensed architects must also register with the Department of Education every 3 years. The Department of Education sends each licensee notice of her or his need to renew, and registration can be completed online at:

http://www.op.nysed.gov/renewalinfo.htm

GROUNDS FOR DISCIPLINARY ACTION

Grounds for disciplinary action under New York State Education Law Section 6509:

  • Obtaining a license fraudulently
  • Practicing fraudulently, beyond the scope of the profession, with gross incompetence, or with gross negligence
  • Practicing while impaired by alcohol, drugs, or physical or mental disability
  • Being habitually drunk or habitually dependent on narcotics or other drugs
  • Being convicted of a crime
  • Refusing service based on race, color, creed, or national origin
  • Permitting or assisting an unlicensed person to commit acts requiring licensure
  • Practicing without a license
  • Failing to register or notify the Department of Education of a change of address
  • Willful misconduct in making a certification related to the green building tax credit under Section 19 of New York State Tax Law
  • Willful misconduct in making a certification related to the green roof tax abatement under Title 4-B of Article 4 of New York State Real Property Tax Law
  • Willful misconduct in making a certification related to the solar electric generating system tax abatement under Title 4-C of Article 4 of New York State Real Property Tax Law
  • Additional unprofessional conduct as defined in the rules and regulations of the Board of Regents

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PROCEDURE FOR INVESTIGATION AND HEARING

The disciplinary process begins with a complaint made to the New York State Department of Education and proceeds as follows (Education Law Section 6510):

INVESTIGATION

The Department of Education investigates the complaint and communicates the results of its investigation to a professional conduct officer designated by the Board of Regents.

The Professional Conduct Officer confers with a professional member of the state board for architects and decides either:

  • That there is not substantial evidence of misconduct and further proceedings are not warranted; or
  • That further proceedings are warranted

For complaints that involve questions of professional expertise, the Professional Conduct Officer may seek and obtain the agreement of at least two members of a three-person panel from the applicable board with the decision whether or not to pursue proceedings.

CHARGES

Except in the case of minor and uncontested violations, the Department of Education prepares charges that state the alleged misconduct and the facts related to it.

The charges and notice of hearing must be served on the licensee twenty days before the scheduled hearing if service is made by personal delivery and twenty-five days before the hearing if service is made by any other method.

EXPEDITED PROCEDURE FOR CERTAIN VIOLATIONS

  • Applies to minor or technical violations, including:
    • Isolated violations concerning advertising or record keeping
    • Other isolated violations that do not affect public health, welfare, or safety
  • First minor or technical violation may receive an administrative warning
    • Administrative warnings are confidential
    • Administrative warnings do not constitute evidence of guilt
    • Proceeding may be reopened if further allegations of similar misconduct occur
  • Subsequent minor or technical violations:
    • Charges are prepared and served on the licensee
    • Licensee has 20 days to answer charges or it is referred to a violations committee of three members of the state architecture board
    • Licensee has right to appear at committee meeting
    • Committee may issue a censure and reprimand and/or fine the licensee of to $500.00 for each instance of misconduct
    • If any fines are not paid within three months, the matter is reopened and goes to full hearing
    • If the licensee files an answer denying the charges, the matter goes through a full hearing

FULL HEARING

Applies to contested matters/ matters not resolved by expedited hearing methods.

Licensee has the following rights:

  • Notice of the time and place of the hearing
  • To file a written answer to the charges
  • To appear personally
  • To be represented by counsel
  • To produce witnesses and evidence
  • To cross-examine witnesses and examine evidence against her or him
  • To issue subpoenas

The HEARING PANEL consists of at least three members, at least two of whom should be members of the state architecture board and at least one of whom should be a member of the state board for another licensed profession.

A licensed attorney is appointed as ADMINISTRATIVE OFFICER and will rule on motions, procedures, and legal objections.

  • An attorney for the Department of Education presents evidence in support of the charges, and the licensee has the right to present evidence in her or his favor.
  • Traditional rules of evidence do not apply
  • Guilt must be proved by a preponderance of the evidence – it is more likely than not that the licensee is guilty of the charges

A hearing report is written and a copy is given to the licensee. The report contains findings of fact, a determination of “guilty” or “not guilty” for each charge, and a recommendation of the penalty to be imposed for each charge for which the licensee was found guilty.

A BOARD OF REGENTS REVIEW COMMITTEE meets, reviews the hearing report and transcript, and makes a written report to the Board of Regents

FINAL DECISION IS IN THE HANDS OF THE BOARD OF REGENTS

The BOARD OF REGENTS considers the transcript and report of the original hearing and the report of the review committee and makes its own decision of the licensee’s guilt or innocence of each charge, decides what penalty to impose, and issues an order.

  • If the Board of Regents disagrees with the hearing panel’s determination that a licensee is not guilty, it sends the matter back to the original panel or a new panel to reconsider.
  • A decision that a licensee is not guilty after reconsideration is final.

ORDER OF THE BOARD OF REGENTS

  • Takes effect on the date of personal service or five days after mailing by certified mail
  • If a license is revoked, annulled, suspended, or required to be surrendered, the licensee has five days from the time of service to surrender the license or submit an affidavit indicating that it has been lost.
  • May be appealed to the Appellate Division of the Supreme Court of New York, Third Department in a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules.

REVIEWING THE TYPES OF DISCIPLINARY ACTIONS

Penalties for professional misconduct under New York State Education Law Section 6511:

  • Censure and reprimand
  • Suspension of license
    • Fully and for a set period of time
    • Partially and until the licensee completed retraining in the subject of the misconduct
    • Fully and until the licensee completes therapy or treatment as decided by the Board of Regents
  • Revocation of license
  • Annulment of license or registration
  • Limitation on registration or further licensing
  • Fines up to $10,000.00
  • Required education or retraining
  • Community service up to 100 hours

The Board of Regents may also partially or fully stay penalties, place a licensee on probation, or restore a license that has been revoked.

RECENT AND ANTICIPATED CHANGES TO STATUTES AND RULES

New York State Business Corporation Law Section 1503 was amended as of January 1, 2012, to provided for the formation of design professional service corporations by architects, landscape architects, engineers, and land surveyors, allowing greater flexibility in both ownership and leadership of corporations that practice architecture. A more detailed examination of design professional service corporations follows later in this seminar.

Other changes in consideration in the state legislature:

  • New York State Assembly Bill A3495 would authorize administrative sanctions against professionals, including architects, for filing applications and other documents with the New York City Department of Buildings that contain false and/or misleading statements.
  • New York State Assembly Bill A7090 would repeal the current Section 214-d of the Civil Practice Law and Rules to remove a notice-of-claim requirement and set the statute of limitations for personal injury, wrongful death, and property damage claims against architects and other professionals at 10 years (up to 11 years if the injury, death, or damage occurs in the tenth year).
  • New York State Senate Bill S4357/Assembly Bill A5827 would alter Section 7307 (5) of New York State Education Law regarding the exemption of projects from needing the services of an architect. Under the current law, alterations of any building that are $10,000 or less and do not affect structural or public safety do not require the services of an architect. Under the new law, the amount would change from $10,000 to $50,000.

The above changes are still pending final legislative approval.

 

John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: [email protected] or (631) 608-1346.

This is a general information article and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer who has experience with Long Island construction law for advice on a particular circumstance.