Building official who is ICC certified and an architect, can he be cited for violating the practice act?
Building official who is ICC certified and an architect, can he be cited for violating the practice act?
No, but CAB refers to the license act where it says "may include". It is unknown whether the individual included a disclaimer so indicating that he was only acting in the capacity of an inspector.
On the one hand you cannot have too many certs (or can you?) but keeping them seperate as the above indicates can be a concern given what your scope of services is to be.
Your intent may be well meaning but the law hinges on language that is sometines less than specific.
If an architect is also a CASp,(a voluntary certification program administered by DSA) to what standard is he/she to be held?
A whole lot of comparisons and analyses can be derived from the concept and it appears that circumstances will govern the standard of care. It is reasonalbe to expect that a professional with more certification and experience in an area of "specialized practice" in addition to "standard practice" would be held to a higher standard if brought to answer for a perceived malpractice.
Having been one of the "dark side" Building Officials as a licensed Architect, I was always aware to not use my licensure as an enhancement to the position and not to take any action that could be perceived as part of architectural practice. The line dividing functions for each separate profession is always a matter of legal argument based on circumstances and conditions.
Any citizen that thinks they have been unfairly treated by a public official can complain to the professional licensing agency. A number have been handled by CA BORPELS as most Building Officials are licensed as Engineers. My experience in some of the cases as a "knowledgable person" assisting the State with opinions on some issues is that if the person is acting in official capacity for their government position, then there is no actionable offense by the licensing agency unless there is gross misconduct that can be connected with their license practice category.
No resolve to the original question but a starting basis for further discussion. Perhaps if some circumstantial info is available, then a better analysis can be made.
Project is a charter school for which he was hired (contract never signed due to fee dispute) as an IOR. Court action to collect fee was upheld. Client's comeback was to complain to CAB. CAB made a determination (right or wrong?) that this falls under the "may" clause.
Blackmail? Are they that short of funding to go after an architect who has been out of work for many months?
There are several different things being discussed, and they do not necessarily 'intersect'.
First: The Practice Act.
This is an aggregate set of CA laws that describe/clarify (paraphrasing) among other things: a) what is the practice of Architecture; b) that a person must have a license in order to practice Architecture, or to call oneself an Architect; c) certain aspects of conduct/performance that a licensed Architect must adhere to; d) what discipline or penalties apply when a person practices or advertises or claims to perform Architecture services without a license or does not adhere to certain conduct/performance criteria contained in the regulations.
What the Practice Act is and is not: Very simply, the Practice Act is the "legal minimum" regulatory framework within which the business of Architecture must be conducted to be legal. These laws (in aggregate) are a part of the Architect's Standard of Care, but are NOT the entire Standard of Care. These laws are only the 'legal minimum' part of the Standard of Care.
The California Architects Board (CAB) is involved in enforcement and oversight of what is in the Practice Act (and so to that extent is involved to some degree in the Standard of Care). However, the CAB is restricted as to what it examines and/or can enforce. The CAB is not involved with or able to enforce anything that is not described in the Practice Act as the practice of Architecture.
NOTE that the Practice Act (the law) defines the practice of Architecture narrowly:
“Practice of Architecture” in BPC Chapter 3, Division 3, Article I, Section 5500.1:
“(a) The Practice of architecture within the meaning and intent of this chapter is defined as offering or performing, or being in responsible control of, professional services which require the skills of an architect in the planning of sites, and the design, in whole or in part, of buildings , or groups of building and structures.”
Just as you would look at the introductory section(s) of a building code for 'scoping' to first determine if the regulations apply to a matter at hand, you must first look to this definition to determine if a certain activity is (or is not) regulated under the Practice Act.
Thus, if someone is performing services that do not include the planning and/or design of buildings/structures those 'other' services are not governed by the Practice Act, and the CAB is not involved in regulating and/or overseeing those 'other' services." [emphasis added]
Second: Standard of Care for Architects:
This is as broad a subject as could be imagined. Generally, the Standard of Care for an individual Architect is considered to be the way that other similarly-credentialed professionals would act given the services are for similar projects, in the same geographic area, and given other similar circumstances. Because ours has become a geographically expanded profession - once local, now national or even international - the geography aspect sometimes is relevant and sometimes not.
Architects are also expected to provide services only when they are qualified to do so for a given project, based on knowledge, skills and experience. Given our ever-increasing technology, standards have become (and continue to become) broader almost daily - and can now encompass services/activities that were unheard of just a few years ago. Standards now include (depending on circumstances) what we would call 'best practices' not only in general building and spatial design matters, but increasingly in highly- or hyper-technical disciplines. Add in ecological concerns, sustainability, and a few dozen other 'new' areas of practice, and the Standards again expand. Consider other factors - building occupancy type and size, specialty uses, low- v. high-rise, hazards, products and materials characteristics/performance, building codes/laws, and myriad other factors the Architect is supposed to know and practice 'at least as well as' his similarly-credentialed peers - and the question of whether an Architect has met the Standard of Care becomes quite a complicated query.
Throw in the many professional associations that each publish their own code of ethics and performance. These 'standards' are often cited as being a part of the necessary/accepted level of care even when a practitioner is not a member of any particular society.
Add the publications of professional insurers (that provide the liability coverage for Architects), in which risk avoidance and risk management are frequently addressed. Some argue that those 'guidelines' are a part of the prudent practitioner's Standard of Care.
Keep in mind that the topic of Standard of Care will pretty much never arise except in a dispute scenario. A Plaintiff will argue that the highest, best, most expansive set of behaviors that can be found in published materials or by way of expert testimony is the 'bar' that must be met. And because there are now so many specialty subjects and technologies it is not hard for a Plaintiff to point to best practices that are a level above what just about any practitioner is capable of providing on a daily basis.
What is lost in the dialogue is that 'perfection' is not, and has never been the legal standard - Architecture is a human endeavor, and as such will inevitably be error-prone. The 'standard' to some extent revolves around what could be determined the acceptable type and level of error(s) - given a particular set of circumstances (the 'situational' framework).
Based on the original post and supplement, it is hard to tell what the 'complaint' to the CAB is about... and the post does not state what the CAB did, or its rationale. Acting as an inspector does not by itself fall within the definition of the practice of Architecture, so would not be regulated by the Practice Act. Acting as a developer, a Program Manager, an on-site construction supervisor, and other building-related jobs, are also not regulated by the Practice Act (even though the individual may academically benefit from and excel at this work because he/she understands architecture). The licensed Architect can also sell shoes... an obvious extreme... but this has nothing to do with Architecture, and the CAB would not entertain a complaint from someone that develops corns.
The issue of whether an Architect is generally held to a 'higher standard' than others, regardless of what specific job is being performed, is not well established. There are situations where that argument has been successful and others not. This is a situational consideration, and not well covered by precedent.
There does happen to be a precedent for building inspectors that is helpful (is not entirely on point), in which the court ruled that a home inspector (not a regulated profession) who happened to hold a contractor's license should be held to the Standard of Care of a licensed contractor when performing home inspections and issuing reports for same. This argues against what many home inspectors refuse to do (even though they are licensed contractors), which is not pointing out specific code violations they observe during their inspections.
I don't know if this is helpful or not. If the post is further supplemented to explain more of the circumstances it might be helpful to the discussion. Regardless, it is important to distinguish between the two separate issues... what is covered by law/regulation (tightly defined/limited), and what can be encapsulated in the Architect's Standard of Care (more expansive, but not necessarily of concern to the CAB).
Please excuse any typos, as time is limited.
THE ABOVE IS NOT INTENDED AS LEGAL ADVICE. THE WRITER IS NOT AN ATTORNEY. FOR LEGAL ADVICE SPEAK WITH AN ATTORNEY.
As usual, very well presented. It is the belief of the individual in question and appears to be supported by your comments, that CAB is/may be overstepping their authority.
The individual, an architect, did in fact perform inspection services in his role as an IOR. The client when forced by the court to pay the IOR made a claim to CAB alledging that the architect was guilty of an infraction (no signed contract for architectural services, they failed/refused to sign the IOR's contract due to a fee dispute for "inspection" services). Arch has been out of work for some time, lacks funds for an attorney, appears to being held hostage by CAB.
You have provided some good info, thank you again.
The Practice Act does require a written contract for services that are covered by the Act - with some exceptions.
If the services do not fit the definition (as quoted earlier) then a written contract may be foolish but does not seem to be of concern to the CAB (unless there is more to it than described).
Rhetorical only: why would this individual perform services of this type without having a written contract in place? That was, of course, the first mistake.
This is a legal 'matter' and I will not opine on how to handle it in front of the CAB. However, there may be grounds to claim there was a 'contract' even if a contract document was not signed.
Also, the absence of a signed contract, with no other substantive improper conduct, is usually considered a minor issue and the discipline for same is accordingly not significant. If all the Architect is worried about is a notation in the record that he received some kind of summary administrative discipline for not having a signed contract, I'm not sure that is worth a battle. I have not heard of a case in which there was any significant monetary discipline, or a court decision resulting in return of paid fees (absent some other problem with seriously negligent performance).
AGAIN... NOT LEGAL ADVICE.
How would an "operative" differ from a handshake or a perceived verbal agreement to begin prior to the signing, given that time was of the essence?
The issue is significantly less in magnitude then many recently published cases in the CAB quarterly.