N.Y. Comp. Codes R. & Regs. tit. 8 § 29.3

Current through Register Vol. 46, No. 51, December 18, 2024

Section 29.3 - General provisions for design professions

(a) Unprofessional conduct shall also include, in the professions of architecture and landscape architecture, engineering, land surveying and geology:

(1) being associated in a professional capacity with any project or practice known to the licensee to be fraudulent or dishonest in character, or not reporting knowledge of such fraudulence or dishonesty to the Education Department;

(2) failing to report in writing to the owner or to the owner's designated agent any unauthorized or improperly authorized substantial disregard by any contractor of plans or specifications for construction or fabrication, when professional observation or supervision of the work is provided for in the agreement between the owner and the design professional or when supervision of the work is under the control of the design professional;

(3) certifying by affixing the licensee's signature and seal to documents for which the professional services have not been performed by, or thoroughly reviewed by, the licensee; or failing to prepare and retain a written evaluation of the professional services represented by such documents in accordance with the following requirements:

(i) a licensee who signs and seals documents not prepared by the licensee or by an employee under the licensee's direct supervision shall prepare, and retain for a period of not less than six years, a thorough written evaluation of the professional services represented by the documents, including but not limited to drawings, specifications, reports, design calculations and references to applicable codes and standards. Such written evaluation shall clearly identify the project and the documents to which it relates, the source of the documents and the name of the person or organization for which the written evaluation was conducted, and the date of the evaluation, and the seal and signature of the licensee shall also be affixed thereto; and

(ii) nothing in this paragraph shall be construed as authorizing the practice of a design profession in this State by persons other than those authorized to practice pursuant to the provisions of article 145, 147 or 148 of the Education Law;

(4) failure by a licensee to maintain for at least six years all preliminary and final plans, documents, computations, records and professional evaluations prepared by the licensee, or the licensee's employees, relating to work to which the licensee has affixed his seal and signature;

(5) having a substantial financial interest, without the knowledge and approval of the client or employer, in any products or in the bids or earnings of any contractor, manufacturer or supplier on work for which the professional has responsibility;

(6) permitting any person to share in the fees for professional services, other than: a partner, employee, associate in a professional firm or corporation, subcontractor or consultant. This prohibition shall include any arrangement or agreement whereby the amount received in payment for furnishing space, facilities, equipment, or personnel services used by a professional licensee constitutes a percentage of or is otherwise dependent upon the income or receipts of the licensee from such practice. This provision shall apply in lieu of section 29.1(b)(4) of this Part;

(7) accepting any form of compensation from more than one party for services on the same project without fully disclosing the circumstances and receiving approval from all interested parties;

(8) participating as a member, advisor or employee or a government body in those actions or deliberations which pertain to services provided by the practitioner or his or her organization for such government body; or

(9) in the profession of land surveying, the revision, alteration, or update of any existing boundary survey without adequate confirmation of relevant boundary lines and monuments. To be adequate, such confirmation shall include a reasonable field verification and shall be sufficiently extensive to reasonably ensure the accuracy of the revision, alteration, or update, as appropriate to the circumstances of the revision, alteration, or update.

(b) Unprofessional conduct shall not be construed to include:

(1) the employment, with the knowledge of the client, of qualified consultants to perform work in which the consultant has special expertise. This provision shall apply in conjunction with section 29.1(b)(9) of this Part; and

(2) participation as a delegator, or delegatee in delegating or accepting delegation, through an intermediate entity not authorized to provide professional design services, of specifically defined work involving the performance of a design function requiring a professional license, under the following terms, conditions and limitations:

(i) such specifically defined design work shall be limited to project components ancillary to the main components of the project;

(ii) the delegator shall specify in writing to the delegatee all parameters which the design must satisfy;

(iii) the design function shall be required to be performed in accordance with performance specifications established by the delegator;

(iv) the delegatee shall be required to be licensed or otherwise legally authorized to perform the design work involved and shall be required to sign and certify any design prepared;

(v) the delegator shall be required to review and approve the design submitted by the delegatee for conformance with the established specifications and parameters and such determination shall be in writing; and

(vi) the delegator shall be required to determine that the design prepared by the delegatee conforms to the overall project design and can be integrated into such design and such determination shall be in writing.

(3) As used in paragraph (2) of this subdivision:

(i) Delegator means the primary design team or team of design professionals which may be composed of professional engineers, land surveyors, professional geologists, architects and landscape architects working either alone or in combination, licensed and registered in accordance with articles 145, 147 or 148 of the Education Law, and authorized to provide the services being delegated.

(ii) Intermediate entity means a person or entity, typically a contractor or subcontractor, responsible for performing the work under the contract for construction.

(iii) Delegatee means a design professional, licensed and registered in accordance with articles 145, 147 or 148 of the Education Law, who is employed or retained by the intermediate entity to produce design work in compliance with the performance requirements and parameters specified by a delegator.

(iv) Certify means a written statement by a licensee confirming responsibility for the work and attesting that the work prepared meets the specifications (as well as conforming to governing codes applicable at the time the work was prepared), and conforms to prevailing standards of practice.

N.Y. Comp. Codes R. & Regs. Tit. 8 § 29.3

Amended New York State Register July 27, 2016/Volume XXXVIII, Issue 30, eff.11/21/2016

Amended New York State Register December 29, 2021/Volume XLIII, Issue 52, eff. 12/29/2021