AHPP 52-68.pdf

PA R T 1 : T H E P R O F E S S I O N C H A P T E R 3 Career Development 3.1 Regulation of Professional Practice Cornelius R. DuBois, FAIA Individuals are licensed to practice architecture, and in doing so, to protect the health, safety, and welfare of the public. Licensing regulations vary amo...

PA R T 1 : T H E P R O F E S S I O N C H A P T E R 3 Career Development 3.1 Regulation of Professional Practice Cornelius R. DuBois, FAIA Individuals are licensed to practice architecture, and in doing so, to protect the health, safety, and welfare of the public. Licensing regulations vary among the 54 U.S. jurisdictions, and each architect is responsible for understanding, observing, and abiding by the appropriate statutes, rules, and policies. THE BASI S FO R THE RE GU LATIO N OF TH E P RAC TI CE OF ARCH I TE C TU R E In order to practice architecture, individuals must hold a license in the jurisdiction in which they wish to practice. The regulation of architecture and of other professions in the United States falls under the authority of the 50 states, three territories (Guam, Puerto Rico, and the U.S. Virgin Islands), and the District of Columbia. This authority is left to the states by the Tenth Amendment of the U.S. Constitution, in the Bill of Rights. Although the licensing laws applying to the practice of architecture may at first appear to be both broad and complex, they exist principally to provide for the health, safety, and welfare of the public. To do so, these regulations set the minimum qualifications determined by a jurisdiction to be necessary to assure the public that the professionals designing buildings for human occupancy have met the appropriate requirements for education, experience (training), and examination. Equally important, these laws Cornelius R. (Kin) DuBois has practiced architecture since 1979. He has served as 2010–11 president of the National Architectural Accrediting Board and 2007 president of AIA Colorado, and is a former member of the NCARB board of directors. 52 HIST ORY OF THE LI CEN SURE O F A RC HI TE C TS Regulation of the practice of architecture is a relatively recent development, especially when one considers for how many centuries architects and proto-architects have been designing buildings. The regulation of some professions, particularly those of medicine (beginning with the Code of Hammurabi in 1700 bce) and law (300 ad), had been in place and tested for many years before registration laws for architects in the United States came into being. Regulation of architecture did not happen overnight. The first law was enacted in the State of Illinois in 1897, establishing a licensing board in 1898. Other states gradually adopted their own statutes and set up their own registration boards over the next fifty-plus years, with Wyoming and Vermont as the final states to adopt licensure in 1951. The territories of Puerto Rico, the U.S. Virgin Islands, and Guam subsequently joined the licensing jurisdictions to create, with the District of Columbia, the current total of 54. Licensing laws are enacted by the legislatures, which establish administrative agencies to implement the laws. The registration board established by statute is typically managed and coordinated by a regulatory agency of the state that may have responsibility for licensing of a great variety of professions (medical, legal, accounting, and others) and occupations. The regulation of professions is not static. The laws applying to licensing can be revised either when legislation is introduced to amend an existing statute or during a “Sunset” process in those states that mandate a periodic review and justification of the rationale for regulatory requirements. In a Sunset Review, a licensing statute is deemed to have automatically expired unless and until a thorough review has been conducted and it has been determined that the needs of consumer protection and safeguarding the health, safety, and welfare of the public will be served by continuation of the statute in some form. With or without a Sunset Review, the content of an architectural licensing statute is subject to a legislative process—and sometimes to political whims that are not always predictable. As a result of this, the efforts by NCARB and others to encourage uniformity among the jurisdictions counter a pull in the opposite direction as legislative cycles leave their imprint on the laws that regulate architects. Alongside the statutes are the rules that are developed by the regulatory agencies and the registration boards. Although rules are set outside of the legislative process, they are still subject to a public process requiring, in most cases, a public hearing held by the registration board after proposed rule changes have been published and promulgated. A generally accepted philosophy of regulation guides the process for both statute and rule: to establish the minimum threshold of regulation necessary to ensure the protection of the public. While the concept of minimum threshold may be subject to personal or political interpretation, this approach offers some assurance to counter the tendency of a statute to accumulate superfluous or inappropriate provisions over time. Whether this is always effective may be questioned, but this principle provides a consistent yardstick that must be held up to set any discussion of amendments or revisions to a licensing law. Amendment X (“States Rights”) of the U.S. Constitution says, “The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This is why there are 54 different licensing jurisdictions, each with its own statute, rules, and policies. This provides challenges to professionals seeking to practice in multiple states, and it can mystify, at first, those from other countries with a single licensing or credentialing authority. The National Council of Architectural Registration Boards (NCARB) has developed our system of reciprocal licensure in part as a response to this reality. 3.1 Regulation of Professional Practice 53 PA R T 1 : T H E P R O F E S S I O N serve a critical function in consumer protection, to assure the public that when an architect is selected, that individual has met these minimal standards and has therefore demonstrated the requisite competence and integrity required of the profession. The concept of “minimal” standards should not be misinterpreted to suggest that the bar for qualification to practice is set low. The stakes—the protection of the public—are indeed high. “Minimal” is also intended to mean that regulations should be without superfluous requirements or testing of knowledge and skills that do not relate directly to health, safety, and welfare. Practice Acts and Title Acts PA R T 1 : T H E P R O F E S S I O N Licensing statutes are termed either “practice” or “title” acts. All architectural licensing laws in the United States are practice acts that describe and regulate practice as well as the use of the title “architect.” Other professions may be regulated by title acts only. In such instances, an individual must have met certain qualifications in order to use a specific title. This title may be a subset of a broader title (“Registered” Interior Designer or Landscape Architect, for example), but the statute does not extend to define or regulate practice under that title, is less likely to set up a registration board, and may assign discipline for misuse of the title to an administrative process. Title acts can be amended in a legislature so that they become, in effect, practice acts—or they can be “enabled” in statute so that their conversion can be effected through rule-making by the registration board. Inasmuch as other professions may affect or overlap with the practice of architecture, it becomes critical for architects to be aware of other statutes and how changes in these might affect architectural practice. Some states, when adopting licensing laws, included grandfathering provisions. Sometimes referred to as “eminence clauses,” these allowed active professionals educated and trained under an earlier and perhaps less rigorous framework to continue to practice. In general, among architectural statutes, grandfathering is now a thing of the past. It does arise occasionally when new statutes affecting “allied” or related professions make their way through the legislative process. The rationale for such clauses in new legislation is that an overly aggressive stance can deny some individuals (who may have been in successful practice for years) their means of livelihood. Negotiation of such clauses can also be a political outcome of efforts to gain adequate support for—or to ward off opposition to—new title or practice acts. ELEM E NT S IN C O M M ON T H RO U G H OU T L I CE N S I NG L AW S Despite the forces that would seem to pull 54 statutes in 54 separate directions, there are many key elements consistent among virtually all architectural licensing laws, which: • • • • • • Establish a board and the rules governing its composition, authority, and operation. Define the practice of architecture. Set the requirements for licensure and entry into the profession. Include exemptions for certain structures not requiring an architect. Define professional conduct and misconduct. Establish sanctions and the parameter for the application of these when the statute is violated. Licensing laws may include a range of other elements that are specific to the jurisdiction and not in common with all others, such as requirements for continuing education, for corporate practice, or for supplemental examinations or qualifications for practice. The balance of this article will include detailed discussion of all of these. THE RE GIS TR ATIO N B OAR D Board composition varies by jurisdiction. There are “architect-only” boards that only regulate the practice of architecture. Many states have versions of “combined boards.” These boards, which are established to achieve greater administrative efficiency, may deal with the regulation of architects and allied or compatible professionals such as professional engineers or professional land surveyors. Others may include myriad other professions or credentialing categories. Not surprisingly, combined boards are found more commonly in smaller states and territories where administrative resources would be stretched if a separate board for each profession were the goal. In addition to architects who are represented on a registration board (along with engineers and others on combined boards), there are public members. While they may not be as familiar with the practice of architecture as are the professionals, public members 54 Career Development PA R T 1 : T H E P R O F E S S I O N hold a critical function on any board, giving boards a balance of opinion and a variety of perspectives. Since architect members, in the position of regulating their own profession, may be subject to at least a perception of a conflict of interest, active public members can counteract this and confer additional legitimacy to the work of the registration board. Some statutes require that these public members represent specific areas, such as members of the legal profession, educators, or general contractors, while other board positions are opened to any member of the public. In 2012 there were over 400 individuals (many of whom are architects) serving on architectural registration boards in the United States, none of whom are compensated for their considerable time and voluntary effort. In most cases, the board members have all been appointed by the governor for terms that vary in length from state to state and which may or may not allow for renewal of term. The appointment process can be complex, sometimes (but not always) political, and complicated by considerations of diversity (regional, gender, ethnic, and other) within a given jurisdiction. The 54 registration boards constitute the membership of the National Council of Architectural Registration Boards (NCARB), which represents the regulatory functions of the profession as one of the five “collateral” architectural organizations. The boards formulate the rules and policies of NCARB, and working with the boards, NCARB establishes national standards for the licensure and credentialing of architects. The other four collateral organizations are the American Institute of Architects (AIA), the American Institute of Architecture Students (AIAS), the Association of Collegiate Schools of Architecture (ACSA), and the National Architectural Accrediting Board (NAAB), each serving different aspects of the profession. D EFINI T ION OF THE PRACTI CE O F A R CH ITE C TU R E Every licensing law (usually at the beginning of the statute and often within a section on “definitions”) contains a definition of the practice of architecture. A few states take the most direct approach and adopt the NCARB Legislative Guidelines and Model Law, Model Regulations without modification. Others use the NCARB document as a template for their statutes, modifying to suit local conditions and politics and reviewing and adapting to revisions and updates as they may be implemented through the resolution process held at the NCARB Annual Meeting. The practice of architecture is not typically defined by means of an exclusive list of items of practice but is, rather, a collective definition. Architects do many things in the course of programming, designing, creating documentation, and administering the construction of buildings, and elements of these are shared with other occupations. In the course of their work, architects accept a unique professional responsibility that is not shared with others. Interests from other professions, trades, or occupations may seek to limit the definition of architectural practice when a licensing statute is subject to amendment or undergoing a Sunset Review process. The outcome may be a definition of practice that is at variance with that in the NCARB Legislative Guidelines or it may be in the form of specific exemptions. There is a long history of the interface of the definition of the practice of architecture and that of engineering. In some states, a clear distinction is established between the activities of the two professions, while in others engineers may engage in aspects of architectural practice—or specific building types—if it falls within their “area of expertise.” Likewise, architects may be permitted to “engineer” (that is, to calculate and size) structural elements in some instances, such as for smaller residential buildings. In either case, an added consideration will be the willingness of a code official to accept such work when permitting a set of construction documents. Statutes respecting other allied professions such as landscape architecture and interior design may also overlap or conflict with the definition of the practice of architecture. An architect practicing in a new jurisdiction would be well advised to scan the corresponding statutes and rules for these to confirm that there are no potential conflicts. 3.1 Regulation of Professional Practice 55 PA R T 1 : T H E P R O F E S S I O N Another consideration that must be weighed is that some of these professions may be regulated only via title acts instead of practice acts. As with the overlapping practices of architecture and engineering, the ability of other professionals to stamp and submit construction documents for building permit approval will always be subject to some degree of discretion on the part of the building official. In a state where there is no statewide building code, the window of what is and what isn’t acceptable may vary from one municipality or county to the next. USE OF TH E TITLE The privilege to use the title “architect” in any form is specific to a licensing jurisdiction, and an individual licensed to practice in one jurisdiction may not use the title in another until he or she has been granted a license there. Not only is the title “architect” regulated, but so is use of the title in combination with other terms and in the form of what is commonly called “the derivative.” Not only is this a subject that can vary significantly from state to state, but individual jurisdictions, through the legislative or rule-making process, also may make changes in these provisions from time to time. This is a particularly sensitive issue affecting interns. A few states allow the use of “intern architect,” while a greater number allow only “architectural intern” (use of the derivative). Still other jurisdictions allow neither, in which case an intern is an intern. While an intern proceeding diligently through the Intern Development Program for three years or more may be flying under the radar screen, using a title on resumes, business cards, and firm marketing materials that is contrary to what is allowed, carelessness can get an intern into difficulty when actually applying for a license. This can result in fines or other sanctions, as well as delays in issuing the license. The fact that some of the offending material may have been produced by the firm for which the intern is working (possibly without the intern’s knowledge) may not obscure the fact that it is the individual intern who is ultimately responsible. Registration boards also take different approaches with respect to the use of the title by nonprofessionals. The general rule is that a term, such as “software architect,” which is highly unlikely to be misconstrued as referring to someone providing actual architectural services, may be disregarded by a board, while other terms may be seen as more suspect. The term “holding out” is commonly applied to someone representing that they are an architect without holding a license in that jurisdiction. The term is applicable, whether or not the individual is already licensed in another state or has no qualifications whatsoever. Some states offer what are termed “fishing licenses,” allowing a professional to temporarily use the title while actively pursuing a specific project. These often require the architect to be affiliated with a local firm in order to be granted this status. Some states also allow for “emeritus” or “retired” architect status, allowing continued use of the title in some form. It has often proved difficult to establish a regulatory rationale for such titles, since they serve more of a purpose of conferring or acknowledging status than of protecting the public or the consumer. Examples of Violations of Use of the Title “Architect” Violations of the use of the title can come in many forms, some of which are referred to in the discussion above, and professionals may inadvertently find themselves paying the price, even when there has been no intent to deceive the public. An architect from another state may prematurely use the title on a proposal, or may even do preliminary work on a project before receiving a license. Interns may use the disallowed title (“intern architect” or “architectural intern”) on resumes, business cards, marketing materials, listings on awards, or magazine articles. A firm may list an intern as “project architect,” when “project manager” or some alternative would be more appropriately 56 Career Development Licensing boards do not view the use of “AIA” after someone’s name as an inappropriate use of the title—unless the title has clearly been used or manipulated (such as “AIA architect”) so that it may appear as an attempt to mislead the public in a state where the individual is not licensed. USE OF T H E STAMP OR SEA L Licensing statutes require that every architect have a stamp or seal in his or her possession. Depending on the jurisdiction, this may be in the form of a rubber stamp or an embossing seal. Some boards require verification that the licensee has indeed acquired the stamp. The particular requirements (dimensions, required text) are typically included in the rules of the registration board and not in the statute. These rules, from one jurisdiction to another, are evolving with respect to electronic documents and whether these can be “stamped” electronically, with or without an encrypted signature. The use of the stamp on a set of documents (both drawings and specifications) submitted for a building permit signifies that the architect has been in “responsible control” of the preparation of the drawings. Responsible control is defined in the NCARB Legislative Guidelines and Model Law, Model Regulations, and tends to be consistently applied throughout the United States. The architect must stamp only those documents prepared under his control: The NCARB Model Law makes it clear that “Reviewing, or reviewing and correcting, technical submissions after they have been prepared by others does not constitute responsible control.” In other words, an architect has no business stamping and signing someone else’s shop drawings. The comparable term in engineering is “responsible charge,” which essentially means the same thing. Each of the architect’s consultants must stamp their documents prepared under their own responsible charge. All changes to the drawings after the building permit issue must also be stamped and signed (and in many cases, dated) by the architect and the engineers, respectively. Building departments, which are ultimately responsible for the acceptance or rejection of the construction documents, may refer to the “Architect of Record.” This terminology may not appear in the licensing statute, but it essentially implies the same thing. A building department may require a stamp on other documents, such as a written response to a plan correction notice. The architect must comply with these requirements. However, a stamp should never be used for extraneous purposes; for example, on a certification required by a lender on a project. The term “plan-stamping” refers to the inappropriate use of a stamp by an individual not in responsible control of the preparation of the documents. This is a serious violation of any statute, and it is discussed below in the section on discipline. QUAL I F IC ATI ONS FOR LI CEN SUR E Licensing statutes define the qualifications for licensure, dealing in different ways with the same three topics—education, experience, and examination: • Education. While the majority of jurisdictions now accept only a NAAB-accredited degree as a prerequisite to licensure, a declining number of jurisdictions allow a lower threshold for education. The bar may be set at: a minimum four-year Interchangeable Terminology: The terms “registration” and “licensure” are used interchangeably. “Registration board” and “licensing board” are also used in this article, as are “states” and “jurisdictions.” The states, territories, and the District of Columbia have “licensing statutes” and “registration boards.” The one term that does not lead to interchangeability is “architect.” There is no acceptable use of a term such as “unlicensed architect.” 3.1 Regulation of Professional Practice 57 PA R T 1 : T H E P R O F E S S I O N consistent within the licensing statute. Out-of-state firms and individual practitioners may find themselves referenced inappropriately in the press, or they may directly violate the statute by entering a competition in a jurisdiction where a license is required. Although a design firm may be called to task in some of these situations, requiring an appearance before the board, it is ultimately the individual who must take responsibility for how he or she is represented to the public. If called before the registration board, an honest account is without question the best approach. Licensing boards must also contend with complaints about misuse of the title by nonprofessionals. There may be deliberate misuse of the title by disguising it in combination with other terms, such as “design architect” or “architectural renderer” (where the derivative is not allowed). In these cases, boards take seriously their responsibilities to protect the public and the consumer while not unnecessarily tying up their or the administrative department’s time with frivolous or pointless complaints. PA R T 1 : T H E P R O F E S S I O N pre-professional degree, such as a Bachelor of Science in Architectural Studies; a four-year degree in an unrelated field; a two-year associate’s degree from a community college or technical college; and in some cases, a high school diploma. • Experience. The second area of requirements for licensure applies to experience. Typically, this means completion of the Intern Development Program (IDP). When a state allows a lower education threshold it will usually require a longer term of internship (experience) before an individual without an accredited degree can qualify for the Architect Registration Examination® (ARE®). These jurisdictions may also allow some parallel means to documenting experience that is nevertheless based on and parallel to IDP. • Examination. This is the final step. The licensing jurisdiction must determine when the individual has qualified to take the ARE, in some cases allowing early eligibility to take portions of or the entire exam before completion of the experience requirement. Whereas in the past, the “three legs of the stool” (education, experience, examination) were seen as being assembled sequentially, it is now not unusual to have candidates begin to acquire qualified experience while still enrolled in a degree program and to begin the exam before completing the experience requirement. In all cases, however, a jurisdiction will not issue a license until all steps have been successfully completed. Upon successfully meeting their registration board’s education, examination, and experience requirements, a candidate for licensure will then have to complete that board’s application and fulfill any additional requirements of that jurisdiction. These will certainly require the payment of a fee, but there may also be a supplementary exam covering local conditions or a jurisprudence exam, typically a take-home open-book test of the candidate’s knowledge of local licensing laws and rules. Only upon completion of all requirements will a license then be issued. There are potential disqualifications for licensure, such as past felony convictions including specific convictions for sex-related offenses or for failure to pay child support. Foreign-Educated and Trained Professionals Individuals educated in other countries, and even those who have been practicing as architects in their home country, have additional hurdles to clear in order to become licensed to practice in any of the 54 jurisdictions. This may include obtaining an EESANCARB evaluation (performed by Education Evaluation Services for Architects) of a foreign-educated architect to determine in what areas additional education might be required. In this evaluation, the candidate’s transcript (in English) is weighed against the NCARB Education Standard. Some states also accept individuals licensed in other countries who have demonstrated competence through the NCARB Broadly Experienced Foreign Architect Program. Other jurisdictions will not allow a foreign-educated individual to take the ARE unless he or she acquires a NAAB-accredited degree. The difficulty of understanding the wide variation of applicable regulations is made more daunting by the fact that many foreign-educated professionals come from countries where there is a single licensing authority and a single set of rules. REN E WAL OF A L IC E NS E Licensing requirements include different renewal cycles or terms. These can be one-, two-, or three-year cycles. Although a licensing board may send out renewal notices, it is incumbent upon the individual to know when a license is due to expire. Some jurisdictions allow for a grace period for overdue renewals, and this may include an additional fee penalty. In a jurisdiction where no grace period is allowed, or where a license has lapsed beyond the period allowed, an individual is likely to have to start the licensing process all over again. 58 Career Development ▶ The accompanying backgrounder on continuing education provides a detailed discussion of MCE requirements. PA R T 1 : T H E P R O F E S S I O N In many states, mandatory continuing education (MCE) is now a requirement for re-licensure. The renewal form, likely to be available online, will typically include a series of questions, including those relating to whether the licensee has been the subject of disciplinary action related to a stamp held in another jurisdiction or whether another license has been voluntarily relinquished (this may be indicative of a stipulated agreement to resolve a disciplinary action). When the fee has been paid and an architect’s stamp is renewed, the licensee will receive a new license to post on the wall as well as a new wallet card. REC I PR O CI TY There are two principal means of obtaining a license in a jurisdiction beyond the original one in which an architect was registered. The first, and the most common, is referred to either as “comity” or “endorsement.” Even though the terms have slightly different meanings, they are essentially the same thing. The technical meaning of comity is accepting as a courtesy the qualifications for licensure from another state. Even when comity is applied, most jurisdictions will require the applicant to have a certified NCARB Council Record, which is then forwarded to the state in addition to filling out the application form and sending in a fee. In a state using the term “endorsement,” the process will be the same. The second means for reciprocal licensure is where a registration board will accept the NCARB Certificate on its own. This includes those states that will accept applicants who have qualified for NCARB certification via the Broadly Experienced Architect (BEA) program or the Broadly Experienced Foreign Architect (BEFA) program. The option applies to architects without a NAAB-accredited degree who have been licensed in another state for a minimum period of time (6 to 10 years, depending on the level of education attained). Through this process, the architect must demonstrate equivalent learning through practice in order to fulfill each of the requirements specified in the NCARB Education Guidelines. The BEFA option applies to architects licensed by a foreign credentialing authority. The BEFA process requires establishment of an NCARB Record, preparation of a dossier to demonstrate experience, and a personal interview. For a number of reasons, especially pertinent to applicants under the BEA program, it often proves valuable for architects to retain a license in the first state in which they were registered. In a new state, the same rules pertaining to new licensees are likely to apply with respect to supplemental or jurisprudence exams, and some jurisdictions also include an affirmation that the architect has passed a seismic exam or taken the ARE after a certain date (1965) at which seismic content was included. ▶ See the backgrounder on NCARB Certification (3.2) for related information. EX EMPTION S Perhaps no subject engenders more heated discussion of licensing statutes in the legislative arena than that of exemptions to the requirements that buildings be designed by architects. The reasons for these exemptions, which exist across the spectrum of jurisdictions, are often philosophical, practical, or purely political. There are several types of exemptions, the most common being those for buildings not intended for human habitation or occupancy (for instance, some agricultural structures). The next most common are for residential structures, defined either by size, height, the number of occupants or families, or construction cost. These vary widely among the jurisdictions and are subject to push and pull every time an architectural licensing law is opened up to legislative and public scrutiny. Anyone designing a structure that is exempt because of size or cost must be especially attentive to the definition applying to that exemption. For example, how is cost defined? The final cost of a project might exceed a preliminary estimate and thus place the structure out of the protection of the exemption. 3.1 Regulation of Professional Practice 59 PA R T 1 : T H E P R O F E S S I O N T HE ARC H ITECT IN RELAT IO N TO OTHER P ROF ESS IONS Architects practice in a broader context of related and allied professions. There are corresponding exemptions in the regulation of other professions, just as architectural licensing laws have exemptions for others to engage in aspects of practice that might fall under the definition of the practice of architecture. As architects continue the trend of expanding services both horizontally and vertically, they must become particularly attentive to the full breadth of the law and not just what is found in architectural licensing statutes. In addition to exemptions for types of buildings, there may be exemptions for categories of practice: A statute, in deference to the Supremacy Clause of the U.S. Constitution (which says that the federal government must operate free of interference by the states) may be specific that federal employees are exempt from the requirements of the licensing statute. Also, as discussed earlier, there may be partial or full exemptions for other professions to engage in architectural practice in some form. Likewise, the licensing statutes of these other professions may allow reciprocal exemptions for architects, for both title and practice. A simple example is when an architect is allowed to engage in site design even though this may also fall into the description of the practice of landscape architecture. Another might be when an architect is allowed to describe “interior design” services when a title act for interior designers also exists. These nuances require architects to be aware of not only their own licensing laws but also those applying to related fields. Finally, there is an important paradox relating to exemptions and exempt structures: One does not have to be an architect in order to design an exempt structure. However, if a nonarchitect is holding out as an architect while advertising for or designing an exempt structure, they will likely be found in violation of the statute. C ORPO RATE P RAC TI CE Some jurisdictions require firms as well as individuals to be registered in some form. In some states the firm name must be registered with (and approved by) the licensing board. This may require an annual fee. Beyond the mechanics of corporate registration, corporate practice requirements in licensing laws may comprise several, sometimes complex, areas. One of the most common governs the composition of firms. Depending on whether a firm is a sole proprietorship, a partnership, a professional corporation, or another type of entity, there may be a requirement for a certain number of the firm’s principals or directors to be—or for a minimum percentage of stock ownership to be held by—architects licensed in the jurisdiction. Firm names may also be regulated, and an architectural practice from another state may discover that it is operating under a name that is not acceptable in a new state. Firm name requirements may govern the use of what are termed “fictitious business titles,” and may require a formal approval by the regulatory agency. “Fictitious” may be a confusing term for an architecture firm that sees itself as anything but imaginary, but it applies to a firm name that does not indicate the ownership of the firm. For instance, a firm called “Architectural Partnership” doesn’t include the names of the actual partners in its title and is thus a fictitious business title. Other provisions may limit how long a firm can keep the name of a deceased or retired partner or principal. Architecture practices may find themselves removing the name of a deceased partner or resorting to initials in order to comply with regulations in their home states or in order to practice without reincorporation in multiple jurisdictions. Similarly, a firm with NCARB .OR G only a single registered architect cannot use “Architects” in its title. The website of the National Council of Architectural Regardless of what a licensing statute regulates with Registration Boards, NCARB.org, is an invaluable source respect to corporate practice, there are likely to be other of information on licensing requirements, including restrictions and requirements to set up a business in the documents such as the Rules of Conduct and the state. The administration of these usually resides with the Legislative Guidelines and Model Law/Model secretary of state’s office. A firm must decide (factoring Regulations. The site also offers a Registration both legal and accounting advice) whether or not to regisRequirements Comparison Chart and provides links to ter with the secretary of state in a new jurisdiction, and in the sites of the individual registration boards. Please refer some cases it may even be necessary to reincorporate to the “For More Information” section at the end of this under a different structure just to be able to practice at all article for specific links to documents.” in the state. 60 Career Development ▶ The backgrounder on Firm Legal Structure (5.2) further addresses business entities. PA R T 1 : T H E P R O F E S S I O N Other regulations affecting corporate practice may apply. Some have requirements for the services of an architect to be retained during the construction period or for work to be performed only with a signed agreement. Such rules are not only important to understand, but they also may offer tangible benefits to practice in that state. C OMP L AI NTS Any member of the public (whether a client, a building user, or another architect) can file a complaint with a licensing board. Once received, the complaint is reviewed first by the staff and then by the board, which will choose among several courses of action: • Dismissal. A complaint can be dismissed either with or without prejudice, which has a bearing on whether the complaint can be brought up again if more information or evidence becomes available. • Investigation. The board can send complaints either to staff investigators or to consultants (often other architects) to look into the matter in detail, reviewing drawings and other documents and then making a recommendation to the board. • Referral to the state attorney general’s office. A complaint against a nonlicensee may not fall under the actual jurisdiction of the board, in which case the attorney general’s office can pursue an action, resulting in a sanction such as a cease-and-desist order. • Deferral. Boards may hold off on taking an action after reviewing the complaint, sometimes until a separate civil or criminal suit is resolved. • Disciplinary action. The board may take an action after reviewing the complaint. The duty to file complaints does not fall solely on members of the public. Indeed, architects have a duty to report violations of the statute, whether this has been committed by an architect or an unlicensed individual. Architects also have a responsibility to selfreport life safety issues, including those that result in insurance claims. This duty to report may be either when an event occurs or in the course of filling out the license renewal form. The responsibility to report violations of the statute is one that architects are often uncomfortable with. An architect must, however, consider the possible consequences (to the public or to the occupants of a building) should a violation of a licensing law not be reported. D ISC I P LIN E As discussed above, there are two basic types of violations considered by licensing boards: • Violations by untrained and unlicensed individuals. Discipline in such cases may not fall under the purview of the licensing board and must be referred to another agency, such as the state attorney general’s office. • Violations by trained individuals, either those licensed and already practicing in the jurisdiction or those who are not yet licensed there. Those not yet licensed may have an application already in process, or they may be interns “moonlighting” (performing services outside of their regular employment and without a license). In these and in similar instances, the registration board has a purview and may ultimately grant a license pending payment of a fine and acknowledgment of the violation per a stipulated agreement. Perhaps the most common instances leading to major disciplinary actions are those involving plan-stamping or misuse of the title (holding out). Registration boards, with the advice and guidance of their administrative agencies or state attorneys, have a range of options from which to choose, including: • A letter of admonition that becomes part of the public record • Fines, within the level of authority given to the board by statute or rule 3.1 Regulation of Professional Practice 61 PA R T 1 : T H E P R O F E S S I O N • • • • • Cease-and-desist orders issued by the state attorney general’s office Requirements for specific remedial education (such as a course in ethics) Suspension of a license for a specific period Revocation of a license Imprisonment: for instance, if an individual refuses to obey a cease-and-desist order Board rules usually spell out the due process established for complaints. These define the steps that must be followed: complaint, investigations, hearing, decisions or referral, possibly negotiation, and ultimately appeal. Discipline levied in one licensing jurisdiction can have a direct effect on a license held in another state. NCARB maintains a disciplinary database that can be accessed by licensing boards, either in the course of investigating a complaint or when a license is renewed and an architect has checked off a box indicating discipline in another jurisdiction. The outcome can be that a license may be revoked or suspended if a violation in one state is comparable to what would have been a violation in another. This general rule is important, for example, when a violation of a corporate practice requirement in one state might not be applicable in another. A felony conviction in one state, however, is almost certain to apply across state lines. There are other, potentially grave, business consequences of performing work without a license. These include the difficulty of recovering fees for work performed once it has been discovered that someone has been practicing without a license. Courts have typically been reluctant to grant relief to the professional in such cases, when an architect has brought suit to collect against a client who has refused to pay. BOA RD R U L E S A S OP P O S E D TO S TATU TE S Licensing boards also maintain Rules of Procedure as well as written Policies. The Rules spell out the details not covered in the statute, and they often include the details applicable to qualifications for licensure, such as: T HE U.S. AR CHITECT AND GL OB A L P RA CT ICE More U.S. architects are practicing or seeking to practice in some form in countries around the world. As much as regulation varies in our country from one jurisdiction to the next, global regulation appears in even more forms. Some countries don’t regulate at all, while others credential the title only. In some cases, the title of “architect” may be granted upon graduation from an architecture degree program. In the face of confusing— and occasionally ambiguous—regulation abroad, many architects wisely choose the option of teaming with a local firm instead of attempting to operate solo in another country. As with our own requirements, a foreign country may not accept education here as comparable to what is approved in that location, and if there is an examination requirement, that test will most likely be given in the language of that country. International practice is still in many ways an untested and rapidly evolving area, making attention to the particulars of architectural regulation especially important. 62 Career Development • Equivalent process and documentation to be followed in the few states that do not require IDP • Rules for allowing early examination • Requirements for design and use of the stamp • Rules regarding the wall license and wallet card • Conformance to an ethical code Most boards develop their own ethical code based in whole or in part on the NCARB Rules of Conduct. A few states simply adopt these by reference. The details applying to Mandatory Continuing Education (MCE) are also included in the board’s rules. These will specify the process by which MCE must be documented as well as the categories of continuing education that are allowed and disallowed. The rules of a registration board can be amended by the board through a public rule-making process. Such a process will include requirements for promulgation of language proposed for new rules, time for a public comment period, and adequate notice for the public hearing that must be managed by the board. Board policies, on the other hand, detail board and staff procedures that are not subject to the formalities of rule-making. These can be acted upon independently by the board, with the staff of the regulatory department. Rules and policies are important parts of the total framework for the regulation of practice. Any architect searching for a topic in the licensing law and coming up empty should go next to these documents to find the answer. PA R T 1 : T H E P R O F E S S I O N C ONCL USI ON The regulation of architects, for which the overarching purpose is to protect the public health, safety, and welfare, is a complex world, covering many aspects of individual and corporate practice. The dynamics of regulation among the 54 separate jurisdictions can seem confusing, but it is important to consider that this complexity—and indeed richness—reflects our society, our national history and the U.S. Constitution, regional particularities, and the evolving conditions in which architects practice. It is the responsibility of each professional to keep pace with this context and to understand the laws and rules of the jurisdictions in which he or she practices or wishes to practice. F or M or e I n f o r m a ti o n NCARB Legislative Guidelines and Model Law: http://www.ncarb.org/Publications/~/media/Files/PDF/Special-Paper/Legislative_Guidelines.pdf. NCARB Rules of Conduct: http://www.ncarb.org/Publications/~/media/Files/PDF/ Special-Paper/Rules_of_Conduct.pdf. Broadly Experienced Foreign Architect (BEFA) program: http://www.ncarb.org/en/ Getting-an-Initial-License/Foreign-Architects.aspx. Broadly Experienced Architect (BEA) program: http://www.ncarb.org/Certificationand-Reciprocity/Alternate-Paths-to-Certification/Broadly-ExperiencedArchitect-Program.aspx. EESA-NCARB evaluation process: https://www.eesa-naab.org/home.aspx. BACKGROUNDER W BE/ M BE/DB E/SB E CERT IFICATI O N Katy Fla mm ia , AIA Women-owned, minority-owned, and small design firms may access business opportunities by becoming certified as a Woman Business Enterprise (WBE), Minority Business Enterprise (MBE), Disadvantaged Business Enterprise (DBE), or Small Business Enterprise (SBE). Understanding the definitions, processes for certifi cation, and opportunities will help to determine if certification is a good strategy for a firm. Katy Flammia is an architect in Boston. Her firm, THEREdesign, specializes in the design of branded environments for corporate, hospitality, and academic clients and has been certified as WBE, MBE, and DBE since 2007. growth of these businesses and their greater participation in the economy. The process for awarding contracts, the amount of the goal (% MBE or WBE participation required on each contract), qualification requirements, and method of certification varies from state to state, from year to year, and from awarding agency to agency. Because it is impossible to give exact numbers or qualifying information, this article will offer general definitions and will outline a strategy for determining if certification is right for a firm. It will also cover how to find the information needed to pursue certification and, most importantly, what to do once certified. IS A FI RM ELIGIBLE? Woman- or Minority-Owned Business Enterprise (WBE or MBE) I NT RODU CTI ON A firm must meet the following requirements: State and local governments have established goals for awarding a portion of design and construction contracts to minority- and women-owned and small business enterprises. The purpose of these goals is to encourage the • Minimum 51 percent woman or minority ownership of the firm. • Some states have personal net worth limits for company owners. (continued) 3.1 Regulation of Professional Practice 63 PA R T 1 : T H E P R O F E S S I O N • Some states may have a size standard. Check state requirements. • Certification required. Disadvantaged Business Enterprise (DBE) A firm must meet the following requirements: • Minimum 51 percent woman or minority ownership of the firm. • The personal net worth of the business owner may not exceed $1.32 million (excluding business equity and personal residence). • Certification required. Small Business Enterprise (SBE) • The U.S. Small Business Administration defines “small” by industry. Most state and local governments follow the SBA guidelines when certifying SBEs. In 2012, the limits were as follows: • Architectural services: $7 million average annual revenues over 3 years • Interior design: $7 million average annual revenues over 3 years • No personal net worth limit for company owners I M PO RTAN T C ON SID ERAT IONS Before starting the certification process, do some research about what contracts are being offered by government and corporate entities that require or encourage the use of minority-owned, woman-owned, disadvantaged, or small businesses. What Kind of Work Does the Firm Do? What Is the Firm’s Specialty? For example, if a firm specializes in housing or K–12 and higher educational facilities, projects on which the firm’s services will be needed will be offered by state and local governments. On the other hand, if the fi rm designs private residences or specializes in hospitality or retail, it is much less likely there will be contracts issued that require or encourage the use of fi rms with MBE, WBE, DBE, or SBE certification. good strategy is to team with larger firms as a subconsultant. • Create a marketing plan identifying the types of projects that align with a fi rm’s strengths and business direction. • Research which agencies, municipalities, and corporations are offering those sorts of contracts the firm does. • Determine what agencies require or encourage using minority-owned, woman-owned, and disadvantaged and small businesses. • Begin the certification process once firm leaders are satisfied that there are plenty of opportunities for the firm. CERTI FICAT ION PR OCESS Woman- or Minority-Owned Business Enterprise (MBE or WBE) Most states, agencies, and corporations require a third-party certification. Many states have an agency that does the certification, and the process is free. This often means the firm is only certified in a particular state. There are other organizations that certify for a fee. The Women’s Business Enterprise National Council (WBENC) is an example. This certification is nationally accepted, but a firm will need to determine if the organization’s certification is recognized by the contracting agency/corporation. Go to a state government’s website to learn about the process. There is generally a relatively long list of documents firm owners will need to provide. Typical documents include company tax returns, copies of proposals or contracts, paystubs, or W2s. The state may require an interview. Someone from the certifying agency will come to a firm’s office and ask firm owners and staff about their work. The purpose of this visit is to establish that: 1. The company actually is a real business. 2. The woman or minority owner actually runs the firm and is not only an owner in name. The entire process can take a few months to complete. Certification needs to be renewed every one to three years. Disadvantaged Business Enterprise (DBE) What Size Is the Office, and What Size Projects Does the Firm Design? If a firm is very small, it may be very hard to acquire large contracts for projects such as school buildings or housing developments. Nevertheless, this doesn’t mean the firm shouldn’t get certification and team with other firms on large projects or try for small projects. Small projects are often grouped together under an indefinite scope contract. These are awarded by an agency to several firms that are then “on call” for projects as they come up. Another 64 Career Development DBE certification is a federal program and is distinct from most states’ WBE/MBE certification. It can sometimes be applied for simultaneously, reducing repetitive paperwork. There are similar requirements to the WBE and MBE certification, but in addition firm owners will need to provide: • Personal tax returns • Personal financial statement DBE certification is generally up for renewal every one to three years. This is a self-certification process, as follows: • On the Small Business Administration website, look up the firm’s NIACS number and determine whether the company is within the limit for the industry. • Get a Data Universal Numbering System (DUNS) number at http://fedgov.dnb.com/webform/. • Register with the System for Award Management Site (SAM). This has replaced the Central Contractor Registry (CCR) and is a database that awarding agencies use to find firms and learn about the services they offer. Certification generally needs to be renewed annually. • • • GE TT ING WORK A FTER CE RTIFICATION Being certified only gives a firm an enhanced opportunity to compete for work. Now the firm must put a marketing plan into action. Many states have online resources listing contracts posted by the purchasing agency. Some offer an e-mail subscription to receive solicitations. Others require someone to check regularly for opportunities. Some agencies may require that a firm submit and keep current a master file or a standardized document with information on the business. Few of the designations give a firm access to work as “set-asides,” meaning that projects or a certain percentage of a project can be given only to qualified participants. All of the designations discussed may only give a firm a small bump up among all the qualified applicants. Firm owners will still need to market, network, and pitch their company’s services. It’s important to meet the decision makers and become acquainted with members of designer selection boards. If working as a subconsultant is the goal, let prime contractors know about the firm’s services. Create marketing materials that list the firm’s services and all certifications. Make it easy for “primes” to invite the firm onto their teams. Most importantly, the firm needs to do very good work. In some areas, contractors have used these certifications to gain contracts and have underperformed, causing certification to sometimes be stigmatized. To counteract this, firms need to build a body of excellent work and a strong reputation. Tips • Entering into the world of government contracts is like learning a new language. It definitely requires a time and resource investment. • Accept that it takes time and effort in the beginning to make the company known. • Remember to market just as for any other work the firm is trying to get. Those who assume the phone will start to • ring as soon as they get certified often give up and think the effort was useless. There are literally hundreds of resources for assistance. Many of these are free. The hardest part is narrowing down which events, training activities, and mentors are best for a firm leader to attend. Be very careful about companies promising to get the firm contracts. They are usually selling expensive services. Start with a state’s local programs and with the Small Business Administration. Look for websites that have the .gov address; these are usually the legitimate sites. Don’t take on more than the firm can handle at once. Choose two or three agencies or project types and go deep rather than broad. Once the firm is established in an agency or field, then branch out. Seek advice from firms who have been doing government work. Many times an allied professional, such as a landscape architect or an engineer, is a good resource. Getting work is all about teaming, so sharing leads can be very useful. PA R T 1 : T H E P R O F E S S I O N Small Business Enterprise (SBE) OTH ER DESIG NATION S Small Disadvantaged Business (SDB) The 8(a) Business Development Program is much like the WBE, MBE, and DBE, but with a very low net worth threshold. Unlike the other programs, this program has project setasides that are given to qualified participants of this program. A firm ages out after eight years of participation or outgrows the program when the firm earns more than the program limits, whichever comes first. Hubzone-business areas are specially designated innercity neighborhoods employing local workers. There are also other designations that might offer opportunities, such as Veteran-Owned and Disabled-Veteran-Owned. For More Information Small Business Administration: http://www.sba.gov/. Minority Business Development Agency: http://www.mbda.gov/. Women’s Business Enterprise National Council: http://www. wbenc.org/. National Women Business Owners Corporation: http://www. nwboc.org/. 8a Certification: http://www.sba.gov/content/8a-businessdevelopment/. System for Award Management Site (SAM): https://www.sam. gov/sam/. Small Business Enterprise Self-Certification: http://www. sbaonline.sba.gov/contractingopportunities/officials/size/ table/index.html. 3.1 Regulation of Professional Practice 65 BACKGROUNDER PA R T 1 : T H E P R O F E S S I O N MANDAT ORY CONT INU IN G E DUC ATIO N Co r nel ius R. DuBois, FA IA A majority of licensing jurisdictions now include requirements for mandatory continuing education (MCE) as a condition for renewal of a license to practice architecture. As with licensing laws in general, the requirements for MCE vary, and it is up to the licensee to track and comply with those in each jurisdiction. T H E RATIO N ALE FO R MAN DATO RY CONT INUING E DUC AT ION Architects live and practice in a rapidly changing world. The body of knowledge required for the practice of architecture is always changing. The licensing exam (the Architect Registration Exam®, or ARE®) evolves periodically in a process designed to keep pace with these changes. The goal is to see that individuals are examined on the knowledge and skills that have been determined to be necessary for practice. This process, called the Practice Analysis, is undertaken by the National Council of Architectural Registration Boards (NCARB) every five to seven years. The principal outcomes of the process are to define the specifications for the ARE®, inform the Intern Development Program (IDP), and guide NCARB’s response to the 2013 National Architectural Accrediting Board (NAAB) Accreditation Review Conference (ARC). The results of the Practice Analysis are also used to understand the continuing education needs of architects and to inform NCARB’s continuing education policies. While the most direct rationale for