What does “Purely Incidental” mean in the Practice of Engineering and Architecture?
By Christopher M. Cobb & Megan C. Goodall January 30, 2020 Posted in Construction Law Share
In Florida, the practice of architecture and engineering are defined by statute and regulated by the Department of Business and Professional Regulation. Understanding the scope of work allowed by a particular license is important to avoid a charge for exceeding the scope. Sometimes, there arises a situation where the statutory definition and the work on the project over-lap. This work may just be incidental to the overall services provided on the project. For example, an architect may perform work that is engineering in nature but part and parcel to the practice of architecture. The is commonly referred to as work that is “purely incidental”.
Deciphering the meaning of the term “purely incidental” in the design professional arena of work is not an easy task for local government officials or design professionals themselves. Chapter 471, Florida Statutes, is the statute governing engineers. Section 471.003(3), Florida Statutes provides for the qualifications for practice and exemptions for engineers and states:
“No licensed engineer whose principal practice is civil or structural engineering, or employee or subordinate under the reasonable supervision or control of the engineer, is precluded from performing architectural services which are purely incidental to her or his engineering practice nor is any licensed architect, or employee or subordinate under the responsible supervision or control of the architect, precluded from performing engineering services which are purely incidental to her or his architectural practice…”
There is a similar exemption for architects found at Section 481.229, Florida Statutes. It would seem under the statutes that the two disciplines (engineering and architecture) are clearly distinct as are their scope of work, duties and responsibilities. However, section 471.003(3), Florida Statutes (2019), acknowledges there are times in a project where an engineer may be performing architectural services that are purely incidental to her or his engineering practice and times when an architect may be performing engineering services that are purely incidental to her or his architectural practice. See Trikon Sunrise Assoc. v. Brice Bldg. Co., 41 So.3d 315 (4th DCA 2010)
The term “purely incidental” is not intended to be
an all-encompassing term and should not be used as a means of expanding the scope of practice for architects or engineers. The term purely incidental implies that such activities are not significant in nature as considered in the context of the work being performed. (See A Building Official’s Guide to the Professional Practice of Architects & Engineers in Florida, 2011). A possible way of defining “purely incidental” may be its relation to the education, training, and experience required for practice. In any and all cases, the definition of “purely incidental” work is subject to:
- Professional judgment and exercise of due care by the design professional; and
- Licensing law, determination of the governing boards, administrative rules, and any existing case law.
Design professionals must be cautious when performing work that is borderline stepping outside of their scope of work. Unfortunately, while the answer may seems clear to some, this topic is extremely factual in nature and subject to spirited debate. If the building code official determines an engineer or architect have submitted work under their seal, that is outside their area of licensed professional practice or outside the scope of expertise, proficiency, or competency, the building official could refer the matter to the appropriate professional regulating Board for further action. If that occurs, you should be prepared to address in detail, why the services performed are acceptable and meet the respective industry standard for the particular license in question.
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