February 18, 1982
Mr. Roger A. Schiager
Office of City Attorney
Sioux Falls, South Dakota 57101
Official Opinion No. 82-13
Architectural and Professional Engineering Services
Dear Mr. Schiager:
You have requested an official opinion from this office in regard to the following factual situation:
FACTS:
SDCL 36-18 sets out requirements for the licensing of professional architects, engineers and land surveyors. In addition, statutory provisions within this chapter require various services and work to be performed only by these licensed professionals. The statutory provisions are limited by SDCL 36-18-7 which exempts certain persons and practices from the licensing requirements of this chapter.
Under SDCL 36-18-37.2, public officers and employees are charged with the authority and responsibility of approving and accepting plans, specifications and plats. These persons shall not approve or accept the above if the plan, specification, or plat is in violation of the provisions of SDCL 36-18.
In complying with the various provisions of SDCL 36-18, the Sioux Falls City Building Inspection Department has been requiring a registered architect to sign off and stamp all plans or specifications filed with the office concerning structures exceeding $200,000 in total costs. SDCL 36-18-7(6)(e).
Based on the above facts, you have asked the following questions:
QUESTIONS:
1. May public officers and employees accept and approve plans and specifications for structures exceeding $200,000 which are signed off and stamped by registered professional engineers?
2. Does the exemption under SDCL 36-18-7(5) apply if a corporation, partnership, firm, business entity or public utility designs its own building or structure which exceeds $200,000 where part of that building or structure is to be rented or leased out to other business entities?
IN RE QUESTION NO. 1:
SDCL 36-18-27 and SDCL 36-18-27.1 require final drawings, plans, specifications, reports, plats, and other architectural, professional engineering or land surveying documents to be stamped by the person who prepared them or under whose supervision they were prepared. This requirement is set forth in further detail under ARSD 20:38:04:04. From a reading of the statutory and administrative provisions, a registered professional engineer, architect or land surveyor may legally stamp documents prepared by him in accordance with his professional practice. Thus, whether plans and specifications for structures over $200,000 can be stamped by a professional engineer depends upon whether the plans or specifications are a part of the professional practice of a registered professional engineer.
The Legislature in SDCL 36-18 went to great lengths to distinguish these three related professions. They are separate and distinct definitions, SDCL 36-18-4.1; educational and experience requirements, SDCL 36-18-17.1 et seq.; and examinations, SDCL 36-18-9, 36-18-9 et seq. Administrative rules promulgated by the State Board of Engineering and Architectural Examiners also emphasize the distinguishing characteristics of each one of the three professions.
Specifically, SDCL 36-18-4.1(2) defines architecture as:
Architecture, the art and science of architecture and architectural planning as defined, outlined and treated in architectural textbooks and as included and taught in the architectural curricula of schools and colleges of architecture, and as applied to designing, planning and writing specifications for buildings and structures which are designed by architects and built according to architectural specifications.
SDCL 36-18-4.1(7) defines professional engineering as:
Professional engineering, the art, science, service and creative work, the adequate performance of which requires engineering education, training and experience in the application of special knowledge of the mathematical, physical and engineering sciences as consultation, investigation, evaluation, planning for all governmental units and design of engineering works, systems and engineering surveys, and the inspection of construction for the purpose of assuring compliance with drawings and specifications; and any of which embraces such service or work in connection with utilities, communication systems, structures, buildings, machines, equipment, processes, work systems, utilization of land, water and air, and including such architectural work as incidental to the practice of engineering.
SDCL 36-15-25.1 also statutorily allows for incidental cross practice by architects and engineers concerning a specific project or service that person is performing. Neither the statute nor the numerous rules and regulations promulgated by the State Board of Engineering and Architectural Examiners has specified what is meant by incidental practice. The general definition of 'incidental' is a 'happening as a chance or undesigned feature of something; casual; hence, minor; of secondary importance . . .' Based upon this definition, incidental cross practice would be that practice which occurred by chance or happening of a minor degree which has resulted from the practice of one's profession.
Under SDCL 36-18-7(6) the preparation of plans and specifications for the erection, enlargement or alteration of any building or structure the total cost of which exceeds $200,000 must be performed by a registered professional. It is my opinion that such work is clearly within the definition of architecture and that the preparation of these plans and specifications is not merely incidental cross practice which could be performed by a registered professional engineer. To say that this type of work was merely incidental cross practice would defeat the statutory provisions which have gone to such great lengths to distinguish between the various professions. Therefore, the answer to your question is No. Public officers and employees may not approve plans or specifications stamped by a registered professional engineer.
IN RE QUESTION NO. 2:
SDCL 36-18-7(5) states:
Any full-time employee of a corporation, partnership, firm, business entity or public utility while exclusively doing work for said corporation, partnership, firm, business entity or public utility, provided the work performed is in connection with the property, products and services utilized by his employer and not for any corporation, partnership, firm or business entity practicing or offering to practice architectural, engineering or land surveying services to the public; . . .
Concerning your question, it is my opinion that as long as the person preparing the specifications or plans for the structure is a full-time employee and is working exclusively for the corporation, business entity, etc., and that the specifications or plans concern an intended building or structure for the corporation or business entity, the work performed by the employee is exempt from all the provisions of SDCL 36-18 even though the corporation or business entity may, upon completion, rent or lease out a portion of the building or structure to other business entities. The purpose of the above exemption is to prevent corporations from performing services for other business entities, not for itself. In the question you have presented, the professional work is clearly being performed solely for the corporation or business entity by which the person is employed. This exemption does not appear to allow the construction and then sale of structures normally referred to as 'turn key' operations.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
