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Re: California contract law BORPELS

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Dennis, thank you for your very helpful info on this issue.
Ralph

In a message dated 11/5/05 4:59:02 PM, dennis.wish(--nospam--at)verizon.net writes:
Rhkratzse(--nospam--at)aol.com wrote:

> Dennis, thank you for your "horror story."  You discuss at length the
> designer's deficiencies, but barely mention the HEART of the problem,
> as I see it, which is the licensed PE who stamps the designer's work. 
> Isn't s/he the main "bad boy" in this situation?  Without him/her
> there would not be a problem, because the designer probably couldn't
> continue to do what s/he's doing.  Isn't the PE accepting all of the
> liability in this situation, if anything goes wrong?
>
> Ralph Hueston Kratz, S.E.
> Structural Engineer
> Richmond CA USA
>
>
Ralph,
You are correct with one exception - if  BORPELS had adopted the same
philosophy as the California Architectural Board (CAB) then the engineer
would be allowed to legally wet seal anyone's work. Before I jump in
this direction, let me explain that BORPELS did launch an investigation
into the engineer who wet sealed the work. The engineer is located about
130 miles away and was not involved in the design or at least did not
respond directly to the corrections list - this was done by the
unlicensed designer.
Given that this is the direction BORPELS has chosen (to investigate both
parties) let's discuss your comment about the "HEART" of the problem.
Ralph, I don't want the means in which I used your terms to be a "glib"
reply to you. What this "bad boy" did is entirely possible and
acceptable in California if a Licensed Architect had decided to stamp
off the work rather than an engineer. This may sound shocking, but a few
years ago I contacted the CAB to discuss a similar issue. What they told
me was that the Architect has total autonomy over the project and can
choose to seal the work of any consultant that he feels is competent. If
the plan check cycle is completed and a permit is issued, then there is
no action you can take against the Architect "UNTIL" damage has occured
or a life has been lost that can be attributed to the design.
The difference is in philosophy - BORPELS enforces mitigation and will
address improperly designed projects and the competency of the engineer
who has done the work. CAB will not - they require proof of damage
before a complaint against the Architect can be filed and they will not
review plans which have been permited as evidence of any wrong doing or
incompetence.

Now, if our local "bad boy" had approached and paid an Architect to take
responsibile charge on the project even though the architect is not
working within the designers office or a principle in his practice, the
"bad boy" could continue to design million dollar homes (which is the
price range he is in) ad infinitum.

However, there is something that came up in this issue of BORPELS
Bulletin and I think this holds the key to the entire issue of whether
or not our "bad boy" can continue to practice or not:

The Business and Professions Code sections 6787(a) and (g) appear to be
the key to at least stopping the "bad boy" from practicing:

            "....[the cited] violated Business and Professions code
            section 6787 (a) and (g) by offering structural (civil)
            engineering services within a contract to provide design and
            construction planning services...."
            "Structural engineering falls within the definition of civil
            engineering and, as such, the person providing and/or
            offering those services must be  licensed as a civil
            engineer. ....... California law does not allow someone who
            is not licensed to offer to provide civil or structural
            engineering services regardless of who does the actual
            engineering."  (page 34 of California Board for the
            Professional Engineers and Land Surveyors Bulletin #31, Fall
            of 2005; case againstMyke, William "Gregory" Citation 5155-U.

What bothers me about this is that this "bad boy" was order to Abate and
issued a $2,000.00 fine. Beyond this, the engineer who wet sealed his
plans will face additional charges.
Cutting out the engineers who wet sealed the drawings and analysis does
not stop the problem. First it has to be reminded that California law
(and this is the key) requires for any practitioner of civil or
structural engineers services to be licensed. As I recall from reading
the Code, this can include a partner who is a principle in the firm that
is licensed when the others are not.  In our case the engineer who wet
sealed the plans was one of many he has used and assuming it will have
taken BORPELS nearly three year to make their determination for or
against the Engineer who wet sealed the plans, our "bad boy" can simply
pay the small fine, open a firm or change the name and start again with
another engineer willing to be paid for his stamp. It does not really
stop the problem.

So now we can make our "bad boy" legit (unless damage or death occurs
within a ten year period after the certificate of occupany is issued) by
allowing an Architect to wet seal his plans. Inasmuch as CAB takes a
different approach, we can't say that the boy has violated section 6787
since an architect has full control and the ability to legally use
whomever he believes can do the job and not be responsibile for any of
it as long as a permit is issued and the corrections are addressed.

The responsibility (although not legal) suddenly shifts to the accuracy
and determination of the plans examiner. There is great pressure on an
examiner to get the job finished and in most cases after one or two plan
checks, the Architect or client submitting the work is charged an
additional hourly fee for each additional plan review until a permit is
issued. I've seen developers so outraged that a contract plan checker
has done his job and the corrections not properly address that the
developer will push his weight among the city council members and
threaten to take his future projects to another city where there is not
as much difficulty with "free reign".

I don't think the responsibility should lie with the plans examiner or
with the building department - we should be enforcing from within and
this means breaking the hold that Architects have to provide engineering
services. California is one state where seismic design is more important
than the politics that govern either conventional construction (which
you all have heard me rant about) or the allowance of an Architect to
have full authority to hire an incompetent and not be challenged until
after the damage is done. Where is the justice for the owners of that
building or home? We have a mitigation philosophy in this state that was
started after the damages of the 1933 Long Beach Earthquake and the 1971
Sylmar quake (or was it 72 - I didn't live in the state at the time).

Ralph, you can't break the potential for violating a law that only
applies to some but is negated once an Architect is used as a hired gun
to wet seal a set of plans. What makes this even more tragic is if you
have an Architect who obtains reciprocity and is on a Visa into the US
and who leaves before the damage is done. International tribunal law is
supposed to address this but has it ever been tested?

You might see the problem in a different light now.

Dennis