Request By:
Mr. Charles A. Cotton
Commissioner
Department of Housing, Buildings
and Construction
U.S. Highway 127 South
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether the Department may accept, for review for compliance with the Kentucky Building Code, sprinkler plans which do not have affixed to them the seal of a professional engineer licensed by the Kentucky State Board of Registration for Professional Engineers and Land Surveyors.
In order to conduct a proper code review, the Department requires the drawings to include the information set forth on a reference sheet titled "Sprinkler Review References are from NFPA-13 (1980) Unless Otherwise Noted." The Department has traditionally accepted plans which correctly supplied the information regardless of authorship.
According to your letter, engineers assert that the preparation of sprinkler plans is clearly within the definition of engineering and, as such, the plans are required to be sealed by a registered professional engineer.
You state that non-engineers who prepare sprinkler plans assert that sprinkler systems are preengineered through the standards prepared by the National Fire Protection Association's Technical Committee on Automatic Sprinklers and published in NFPA Pamphlet 13, Standards for the Installation of Sprinkler Systems, which have been adopted by reference by Kentucky. They maintain that the preparation of drawings is properly left to technicians who may be certified under a program run by the Institute for the Certification of Engineering Technicians. (Kentucky apparently has no program to require or recognize such certification.) Non-engineers further assert that sprinkler drawings have for years been primarily prepared by non-engineers and point out that the Department and similar type agencies have accepted plans without the seals of professional engineers as evidence that such work is outside the statutory definition of engineering.
Mr. Walker R. Reynolds, Jr., Executive Director, Kentucky Society of Professional Engineers, advised this office in a letter that plans for fire protection systems should have the seal of a registered professional engineer as engineering functions are clearly involved.
William S. Howard, Esq., Board Counsel, Kentucky State Board of Registration for Professional Engineers and Land Surveyors stated in part in a letter to this office that the most important ingredient of any sprinkler system is the design which gives it its life saving capacity. He further said that the design of systems providing for fluid flow is and always has been an engineering function. Engineers are engaged daily in the drawing of plans for all sorts of systems including those involving fluid flow and fluid mechanics.
J. Patrick Sullivan, Esq., counsel for the Lexington Fire Protection Company, Inc., a company engaged in the design and installation of sprinkler systems, set forth his client's position in a letter to this office. At page two of that letter the following statements appear:
"The history of sprinkler installations and current practices establishes that the plans submitted by sprinkler companies have adequately met the requirements of state requlations, fire insurance companies, and licensed engineers. There is no evidence to support the contention of the Kentucky State Board of Registration for Professional Engineers and Land Surveyors that the adequate performance of this service 'requires engineering education, training and experience.'"
Mr. Sullivan also states that the National Fire Protection Association's book, NFPA-13, sets forth in detail industry-wide standards for the location of sprinkler heads, pipe sizes and water pressure requirements for virtually every conceivable installation. The book is recognized by the Commonwealth in its regulations as the standard for sprinkler systems. The standards set forth therein are accepted by fire insurance companies who do not require an engineer's seal for the issuance of insurance coverage.
KRS 322.010(2) states that "'Engineer' means a person who is qualified by reason of his knowledge of mathematics, the physical sciences and the principles of engineering, acquired by professional education and practical experience, to engage in the practice of professional engineering. "
KRS 322.010(3) defines "engineering" as follows:
"'Engineering' includes any service or 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 to such services or creative work as consultation, investigation, evaluation, planning and design of engineering works and systems, planning the use of land and waters, and the review of construction for the purpose of assuring compliance with drawings and specifications; any of which embraces such service or work either public or private, in connection with any utilities, structures, certain buildings, building systems, machines, equipment, processes, work systems or projects with which the public welfare or the safeguarding of life, health or property is concerned, when such professional service requires the application of engineering principles and data. It does not include the work ordinarily performed by persons who operate or maintain machinery or equipment, such as locomotive, stationary, marine or power plant operators, nor work embraced within the practice of land surveying."
KRS 322.010(4) provides:
"'Practice of engineering' includes all professional services included in subsection (3) of this section, together with the negotiation or solicitation for engineering work on any project in this state, regardless of whether the persons engaged in that practice are residents of this state or have their principal office or place of business in this state or any other state or country, and regardless of whether they are performing one or all of these duties, or whether they are performing them in person or as the directing heads of offices or organizations."
There are no reported Kentucky decisions and only a few reported decisions from other jurisdictions relating even in part to the fact situation which has been presented. In
Howarth v. Gilman, 164 Pa. Super. 454, 65 A.2d 691, 693 (1949), the court said in part:
"The pivotal issue is whether appellees were engaged in the practice of engineering within the meaning of the Act of 1945, supra. As stated, appellees readily concede that they did not register and obtain a license but contend, however, that the Act of 1945 was not applicable to them. Appellants rely upon allegations in the statement of claim wherein appellees averred that they were 'engaged in the business of industrial designing and engineering; ' that they rendered 'certain engineering advice;' that John A. Howarth so described himself and his services; that he represented himself as an engineer and offered to render engineering services; that Howarth's admissions revealed that his services entailed the use of mathematics and a thorough knowledge of metals and their properties and an understanding of machines and machine tools; that the performance of some of these duties, if done by incompetent parties 'would endanger someone.' A mere cursory examination of the multitude of highly technical and intricate exhibits and drawings prepared by appellees reveals that engineering knowledge was required and employed. Applicability of the statute in the instant case depends of course upon the nature of the work actually performed and not the appellation or label affixed thereto. However, the extent of appellees' knowledge of the physical sciences, of mathematics and other subjects fundamental to the practice of engineering as was clearly employed here is most persuasive that the services so rendered were in fact the practice of engineering within the legislative intendment of the Act of 1945. In light of the evidence disclosed by the record, we conclude that appellees were so engaged."
In
State Board of Registration for Professional Engineers v. Rogers, Miss., 120 So.2d 772 (1960), the court said that a person who was not licensed as an architect or an engineer, but who did mechanical work, including heating, ventilation, air conditioning and plumbing within buildings, under instructions from architects and engineers, did not violate the statute against unlawful practice of engineering where his work was supervised and controlled by an architect or engineer for whom he was doing the work as he was not an independent contractor or practitioner of engineering. Note that KRS 322.030(1) states that the prohibition against practicing engineering without a license shall not apply to the engaging in engineering as a pupil or under the direction of a licensed engineer, if such practice does not include responsible charge of design or supervision as a principal.
The court, in
Howarth v. Gilman, 164 Pa. Super. 454, 65 A.2d 691 (1949), referred to its "cursory examination of the multitude of highly technical and intricate exhibits and drawings. " In the situation you have presented we are essentially dealing with the conflicting allegations of two different groups, both of which are basically unsupported by any specific facts and evidence.
The licensed engineers maintain that the preparation of sprinkler plans is an engineering function involving the application of fluid flow and fluid mechanics and incorporating a design with a life saving capacity. Non-engineers who prepare sprinkler plans maintain that such work does not constitute the practice of engineering as the systems are basically preengineered pursuant to industry-wide standards by the National Fire Protection Association. The adequate performance of this function does not, they say, require engineering education, training and experience.
Our examination of the limited facts and evidence and the provisions of KRS Chapter 322, particularly KRS 322.010(3) defining engineering, leads us to the conclusion that the preparation of sprinkler plans does involve the practice of engineering and such plans should have the seal of a registered professional engineer. Perhaps the most important factor under the statutory definition of "engineering" is that the preparation of sprinkler plans is a service involving in part structures, certain buildings and building systems with which the public welfare or the safeguarding of life, health or property is concerned and which apparently does require the application of engineering principles.