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Course Title:
Design, Enforcement, & Construction -A Forensic Architect’s Perspective
DOS Course No: 49-6233Speaker: Kenneth W. Pearl, R.A.
Sources:
New York State – Department of State www.dos.state.ny.us
New York State – Education Department www.nysed.gov
New York State – Office of the Professions www.opnysed.gov
New York State Executive Law www.ny.gov
Background:
Father owned a small construction firm
Industrial Engineer by education
First job with major utility company
Recruited by Architect after intro of NYS Energy Code in 1985
Employed at several types/size firms
Licensed Architect - 1995
Background: 1995 – Started an Architecture practice 1999 – Added Construction Management
services 2000 – Started a General Construction
company 2002 – Merged with older architecture firm 2003 – Started a company for owning &
developing properties 2012 – BSS: Forensic A/E & Specialty
Construction Consulting
Intro to Profession:
Rookie Year - Employer took on practice issues for the Architects after some local tragedies in the 1980’s
Fires / Building Collapses / Injuries / Deaths
Illegal Practice / Rubber Stamping
Background, first employment, and ongoing practice work have led to career long interest in regulations regarding Design Professionals and construction.
What is traditional Design and Construction Services:
Plans & Specs by Design Professionals Pass off work to a General Contractor DP may, or may not have a construction role CEO has traditional Administrative Role
Are all Design and Construction activities legal?
Can a GC be an A/E? Can an A/E be a GC? Role of CEO in design/build, illegal practice, etc.?
What is Construction Management?
What is legal difference between GC & CM?…Between Owner’s Rep, Clerk-of-Works? How might role of CEO need to change? Effects on proof of Worker’s Comp., etc?
What are Forensic Architects learning?
Who did NYS establish as responsible for this? How can we learn from something like this? How frequent is something like this?
Presentation Objectives:
Basic regs. for Design Professionals
Basic regs. for Code Enforcement Officials
Basic regs. for Contractors
Basics of Select Legal Concepts under NYS regulations for design and construction
Quizzes:
Basic Responsibility for Construction:
NYS establishes that Design Professionals must plan all construction work, … exceptions being some small repair, residential, & agricultural work
NYS establishes that Code Enforcement must administer compliance for all work with the Building Code. Other statutes also give other authorities related to separate local codes.
Basic Responsibility for Construction:
NYS establishes that Design Professionals must plan all construction work, … exceptions being some small repair, residential, & agricultural work
NYS establishes that Code Enforcement must administer compliance for all work with the Building Code. Other statutes also give other authorities related to separate local codes.
Basic Responsibility for Construction (cont.):
NYS sets standards for health and safety in the form of codes and recognized engineering standards.
NYS establishes that there is no condition which allows non-compliance with the code and engineering standards.,… the exception being: Formal Variances
Demonstrated Design.
Basic Responsibility for Construction (cont.):
NYS establishes that non-compliance with building codes is a legal requirement with criminal penalties.
NYS establishes that compliance with building codes, but not contract conditions, is a civil matter.
For Design Professionals, NYS establishes both criminal and civil penalties.
Quiz…
Quiz…..
Design Professionals:
NYS licenses 48 professions, 5 as design professionals. Architecture (R.A.) (or AIA) Engineering (P.E.) Interior Design (C.I.D.) Land Surveying (L.S.) Landscape Architecture (R.L.A.)
Design Professionals (cont.):
NYS regulates Design Professionals thru the NYS Education Department.
NYS administers those regulations thru NYSED’s Office of the Professions.
NYSED is assisted by a citizens body called the NYS Board of Regents.
Code Enforcement Officials:
NYS certifies and regulates thru the NYS Dept. of State, Div. of Code Enforcement and Administration
CEO’s found in local, state, agency roles
Observe, Administer, Enforce, Interpretations, Variance, etc.
No construction contract Enforcement role
Not Back-up Design Professionals!
GC’s / Contractors:
No NYS licensing requirements
NYS certifications limited to select specialty contractors
Still some old local laws for licensing. Becoming less common.
Considered an ‘At-risk’ contract format
Except for Workers Comp insurance, no other insurance requirements in NYS.
CM’s / Construction Manager’s:
No NYS licensing requirements
No NYS certifications
More often considered an ‘As-advisor’ contract format
Can be ‘At-risk’ contract format, same as GC
Other names, Marketing perspectives
Quiz…
Quiz….
The NYS Building Code:
Jurisdiction
Since 1985, sole jurisdiction in NYS
Only NYS exception is NY City
Local municipalities allowed to make code more restrictive, but only with formal approval from NYS
Code sets minimum standards,… only a formal variance allows for a lesser, or altered standard
The NYS Building Code (cont.):
Effective Dates – Last 25 years….
2010 Uniform Code 12/28/10 - present
2010 Energy Code 12/28/10 - present
2007 Uniform Code 01/01/08 – 2/27/11
2007 Energy Code 10/03/07 – 12/27/11
2003 Uniform Code 01/01/03 – 12/31/07
2003 Energy Code 07/03/02 – 12/31/07
1985 Uniform Code 1985 – 2002
Various state, local & pre-1985
model codes
The NYS Building Code (cont.):
Applicability
NYS Codes consists of 9 separate volumes,…and defines when which volumes are APPLICABLE
NYS Code defines technical standards,… And defines when APPLICABLE
NYS Code defines applicable Reference Codes and Standards
The NYS Building Code (cont.):
Reference Standards
Federal: ADA, OSHA, EPA, Homeland Security, etc.
National: NFPA, NEC, UL, etc.
State: DOT, DEC, Health Dept., Education Dept., Child Care Regs., Justice Facilities,
Ag & Market, etc.
The NYS Building Code (cont.):
Model Codes
Many Model Codes within the U.S.
NYS adopts and modifies the ICC Model Code from the International Code Council
The ICC Model Code has no standing in NYS as the Building Code.
No other model codes have any standing as well.
The NYS Building Code (cont.):
Minimum Compliance is the standard
Only 2 forms of relief from code compliance, both must be documented and certified.
Formal or Routine Variance from NYS
Demonstrated compliance in form of detailed engineering design.
The NYS Building Code (cont.):
More Restrictive Local Standards (MRLS)
Local jurisdictions allowed to enforce more restrictive minimum standards…
But, MUST be approved by STATE FIRE PREVENTION & BUILDING CODE COUNCIL
And, MUST be documented at NYS Dept. of State
MRLS very rare, but local enforcement more common than the law provides.
Quiz….
Quiz….
Legal Requirements:
Seal/Certification by Design Professionals
Construction work requires plans, reports, specs., etc. certified by DP’s to accompany building permit applications
The few exclusions are often over-ruled by Local jurisdictions exercising their authority to make determinations as to the need for certified plans and reports by DP’s.
Legal Requirements (cont.):
Permits by Code Enforcement Officials
Verify a DP has taken responsibility for design and engineering of work
Administer verification for compliance requirements with various internal and external resources and agencies
Administer a process of observing and documenting completion and conformance of specific milestones and building elements
Legal Requirements (cont.):
Who Seal/Certifies (stamps) what?
RA’s & PE’s
LS’s
RLA’s
CIDs vs. Interior Decorators
Quiz…
Quiz…
Legal Concepts:
Design Delegation
DP’s are allowed to delegate professional design to other DP’s
DP’s are required to review and approve other DP’s delegated design work
Delegated design work must amend documents on file with CEO’s
Contractors can not delegate design as a delegator, but can as a pass-thru entity.
Legal Concepts (cont.):
Design / Build
Single-source construction delivery
Designer-led Design/Build is legal in NYS
Builder-led Design/Build is not legal in NYS
Legal vs. illegal interpretations are based on rules for Design Delegation
Legal Concepts (cont.):
Illegal Practice The practice of any Design discipline without
a license.
Historically common in residential housing markets, but also exists in other markets.
Used to be more open, now more ‘underground’, limited to private sector work.
New Trend – Appears very OPEN on television, public can be misled on rules.
Legal Concepts (cont.):
Rubber Stamping DP’s allowing, and aiding/abetting the
illegal practice of design by unlicensed individuals.
NYS Education Law defines it as Professional Misconduct
NYS Executive Law defines it as a Class E Felony
Not the same as ‘Adoption of Plans’, which is legal
Legal Concepts (cont.):
Misrepresentations of Credentials by Design Professionals
CEO’s have no authority to determine qualifications and credentials of DP’s.
CEO do have authority to direct the public to the NYS Office of the Professions
NYS OP may define certain activities as Professional Misconduct
NYS OP may also determine activities are criminal.
Legal Concepts (cont.):
‘Pulling’ or Removing Seals/Certifications
DP’s can request CEO’s return Sealed/Certified documents, and CEO’s can grant such requests
Acceptable reasons to grant such requests generally relate to questions of appropriateness of scope, or accuracy.
Acceptable cause to deny such requests generally relate to payment disputes, project delay attempts, terminations, etc.
Summary – Encouraging Experts:
Understanding Codes is Important
Understanding Professional Standards is also Important
Understanding limitations of Authority is Important
Understanding sources of separate Authority can be very valuable as well
Final ReviewQuestions & Comments:
Design Professionals
Code Enforcement Officials
Contractors
Construction Managers
Professional Seals & Certifications
Demonstrated Compliance
Final ReviewQuestions & Comments:
Design Delegation
Design / Build
Illegal Practice
Rubber Stamping
Misrepresenting Professional Credentials
Pulling Certified Plans
Resources:
New York State - Education Department
New York State - Office of the Professions
New York State - Department of State
