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Self-Certification Crackdown Sparks NY Turf War

January 7, 2007

By Dorian Davis

A new state law aimed at curbing architects who knowingly self-certify incorrect plans has sparked a turf war between New York state and local officials in New York City over the administration of professional discipline.

New York City’s Department of Buildings (DOB) initiated self-certification in 1995 to help ease a permit backlog. The practice allows architects and engineers to confirm that their plans are compliant with applicable laws, rather than submit plans to DOB inspectors. It accounted for nearly half the 6,000 new building permits issued in 2006 and a similar number in 2007. Controversy erupted last summer when audits revealed that almost half of self-certified plans violated citywide building and zoning codes. In August, the state passed a law aimed at reigning in that misconduct by allowing the DOB to refuse self-certified plans from architects who have previously skirted the code. But the State Education Department, the body responsible for granting and rescinding professional licenses, is now crying foul.

“The Education Department opposed the (law) because it allows the DOB to establish what amounts to a discipline process for design professionals in New York City that is independent of, and potentially in conflict with, the process for professional discipline under Title 8 of the Education Law,” says Jonathan Burman, a spokesperson for the New York State Education Department and its subsidiary, the State Board of Architects.

Until now, the DOB had policed its self-certified applications in two ways. Each year it randomly selected 20 percent of self-certified plans and subjected them to an audit. Forty-one percent of the 600 self-certified new building permits audited in 2006 were issued notices of potential permit revocation, and that number leapt to 51 percent in 2007. The DOB also operated a Buildings Special Investigation Unit, in partnership with the city’s Department of Investigation, to pursue malpractice claims. The unit referred seven cases of potential self-certification abuse to state officials at the Department of Education in 2007, according to spokesperson Diane Struzzi.

But those precautions failed to prevent a stream of careless and dishonest building plans from flowing into the Department through the self-certification program. DOB audits in 2006 revealed that one architect, Robert Scarano, had submitted reckless or misleading plans for more than 30 properties, in some cases labeling entire habitable floors as mezzanines to skirt height restrictions. What made news, and stirred public sentiment, was the death of construction worker Anthony Duncan from a building collapse—reportedly as a result of unsafe working conditions—on one of Scarano’s self-certified projects. Under the city’s building code, applicants of record are held responsible in some cases for workplace safety.

The DOB struck a compromise with Scarano, which it likened to a plea deal, that accepted his voluntary removal from the self-certification program in 2006 in return for its own promise not to refer the case to the Education Department. DOB commissioner Patricia Lancaster says that the State was aware of Scarano’s much-publicized malfeasance and could have conducted its own investigation as the license-granting body. “[Our] agreement not to formally send the stipulation agreements to the State had no practical impact on the State’s ability or interest in conducting its own investigation or taking its own action,” she says.

But her explanation did not sit well with the public. The New York Daily News accused Lancaster of “hiding” Scarano’s mistakes to protect a flawed self-certification practice. Likewise, Duncan’s family blasted Lancaster and the DOB for failing to pursue Scarano for negligence.

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Lancaster responds that her move was an attempt to take immediate action and circumvent a long procedure at the local and state levels. “I weighed the public interest in immediately removing the offender from the system and decided this was the responsible choice for New Yorkers and their long-term safety,” she explains.

DOB has since ended the no-referral practice that landed Lancaster in hot water but it continues to embrace its own discipline process for scofflaw architects independent of state activity. Last summer it created the Professional Certification Audits and Inspections Team, which has conducted 700 inspections and issued 170 Stop-Work Orders since August. Most are for “Work Contrary to Plans,” or construction site activity inconsistent with the application and permit.

Critics are concerned that those powers conflict with state protocol. “The DOB believes in a different standard of care,” says Russell Davidson, president of the American Institute of Architects New York State chapter. He wonders how the DOB will be able to distinguish which architects are deliberately skirting the rules from those who have simply made mistakes, since there are bound to be discrepancies on even the most professional drawings. Worse, Davidson says, “that power could be used to link architects to certain portions of the building activity over which we have no control and no responsibility.”

Others worry that competing professional discipline systems at the state and municipal levels could hold professionals to different standards of proof at discipline hearings. “The departure that this new law represents from [the state’s] regulatory scheme will result in a confusing set of standards for architects licensed in New York City as compared to the rest of the state,” Burman says. He adds that the practice could also result in multiple punishments for the same offense as the discipline process unfolds at both state and local levels.

Proponents contend that measures exist in the new law to address such concerns. “There are a whole set of due process rights afforded to architects,” says assemblyman James Brennan, a representative of the 44th district in Brooklyn, who wrote the self-certification reform bill and introduced it into the State Assembly last summer. For instance, before the DOB can remove an architect from its self-certification program it must first make its case in a hearing before the city’s Office of Administrative Trials and Hearings. If the DOB fails to make a compelling case, an architect is cleared; if it succeeds, an architect is barred from submitting self-certified plans in New York City.

Lancaster says the new role that local officials play in professional discipline can help to expedite an otherwise time-consuming process and better protect the profession and the public. “It’s crucial that we take an approach of duality with the state to use all tools at our disposal to discipline repeat offenders, the bad actors who damage the name of responsible architects.”

Brennan adds that DOB’s exercise of this power will be rare and circumspect: “Most architects are responsible, professional, and competent. They have nothing to fear from this.”

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