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Re: California contract law BORPELS

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Dennis,

The question that I would ask is does BORPELS and CAB operate under the
same state law.  In other words, you seem to point to CAB being more
"lenient", is it possible that the law(s) (assuming that it is NOT the
same law that governs engineers) that govern architectural licensing is
different on this issue and CAB is just administering the current law.  I
really don't know the answer, but if somehow I am right, then the problem
needs to be addressed by the legislature NOT CAB/BORPELS...and good luck
on that.

Scott
Adrian, MI


On Sat, 5 Nov 2005, Dennis S. Wish, PE wrote:

> 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
>
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