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(A
revised version of this article will appear 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
Thelen Reid Brown Raysman & Steiner 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 415-369-7210 or at jralls@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2003 Thelen Reid Brown Raysman & Steiner LLP
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