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Professional Engineer Violated Architect License Law by Designing Metal Building to Be Used Primarily as Office


December 1, 2003


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(A revised version of this article appears in The Construction Lawyer, Volume 24, No. 4, Fall 2003, published by the American Bar Association's Forum on the Construction Industry.)


By John W. Ralls
Howrey LLP

An Arkansas licensed professional engineer filed plans to construct a pre-engineered metal building. The building was primarily intended for office space, with a small amount of storage. An architect filed a complaint with the State Board of Architects, which found that the engineer had practiced architecture without a license in violation of Arkansas Code Annotated §17-15-301. It provides: "In order to safeguard life, health, and property, no person shall practice architecture in this state, or engage in preparing plans, specifications, or preliminary data for the erection or alteration of any building [without being licensed by the State Board of Architects]." The board imposed a fine of $5,000, the maximum under Arkansas Code Annotated §17-15-203 (d).

The engineer filed suit to challenge the board's decision. The trial court affirmed, and the engineer appealed to the Court of Appeals, which remanded for further fact finding. The board petitioned the Arkansas Supreme Court, which affirmed the board's decision. Holloway v. Arkansas State Board of Architects, 101 S.W.3d 805 (Ark. 2003). See also, 544 U.S. 957, 186 Fed. Appx. 708.

The engineer argued that the statutes defining the practice of architecture and the practice of engineering were void for vagueness. Under Arkansas law, a statute will be held vague if it does not give "a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Statutes cannot be so vague that they allow judges to interpret each application on a case-by-case basis.

Arkansas Code Annotated §17-15-102 (5) defines "practice of architecture" as:

[T]he provision of, or offering to provide, those services hereinafter described in connection with the design and construction, enlargement, or alteration of a building or group of buildings, and the space within and surrounding such buildings, which is designed for human occupancy or habitation. The services referred to include planning, providing preliminary studies, designs, drawings, specifications, and other technical submissions, and administration of construction contracts.

The statute also "affirms the legal authority" of engineers to perform the following functions: "to provide consultation, investigation, evaluation, planning, and design of buildings intended for the accommodation of equipment, vehicles, goods, and/or other processes or other utilitarian function, with human occupancy including office space as required for the support of these functions." Arkansas Code Annotated §17-15-102 (5) (B). Engineers may practice architectural work "incidental" to the practice of engineering. Id.

The engineer argued that these statutes were ambiguous and vague because they failed to address such basic questions as how much human occupancy was permitted and to what the phrase "other utilitarian functions" referred.

In rejecting the engineer's argument, the court looked to the text of the statutes. It held that because the statutes allow engineers to work on buildings intended for the accommodation of equipment, vehicles, goods or processes and allow human occupancy only as required to support those functions, the meaning of the statute should be readily apparent to a person of reasonable intelligence. Engineers design buildings primarily intended for equipment, goods, vehicles and processes while architects design buildings primarily intended for people to live and work. Because the building was primarily designed as office space, the engineer stepped outside his authorization to design buildings for primarily non-human purposes.

The court also rejected the engineer's argument that a building could have 70 to 80 percent human occupancy but still be primarily intended for equipment, goods, vehicles or processes. The court found that the engineer had failed to provide any examples of such a circumstance.


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For more information about the issues covered in this report, please contact John Ralls in our San Francisco office at 415-848-3362 or at rallsj@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.


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