Frequently Asked Practice Questions for Land Surveying

Section 7202/7204 of the New York State Education Law states that, "Only a person licensed or otherwise authorized under this article shall practice engineering/land surveying or use the title 'professional engineer/land surveyor.'" A "person licensed" is an individual that has qualified by education, experience and examination, and has been issued a New York State professional engineering license or land surveying license by the State Education Department.

Persons "otherwise authorized" may include an individual person (but not a New York State corporation of any kind) licensed in another state that has applied for and received a limited permit to practice for a specific time period or with respect to a specific project in accordance with the Commissioner's Regulations part 68.11.

The department may license an applicant who meets all requirements for licensure in New York State, except examination, and has been issued a license or certificate to practice professional engineering or land surveying upon written examination by a legally constituted board of examiners in any other state or political subdivision of the United States, provided that the examination for such license or certificate was the equivalent of the examination required in this State at the time it was issued, in accordance with Commissioner's Regulations part 68.10.

When an individual successfully completes the licensure requirements they are awarded a professional license. The license is valid for life unless it is surrendered or revoked following disciplinary action by the Board of Regents.

Professional engineers and land surveyors in New York must register with the State Education Department every three years to practice their profession, pursuant to Commissioner's Regulations part 59.8.

Every New York State licensed and registered professional engineer and land surveyor must complete continuing education unless you satisfy the requirements of the public sector exemption outlined in the continuing education regulations. Professional engineers will be required to complete 36 hours of continuing education during each three-year registration period. Land surveyors will be required to complete 24 hours of continuing education during each three-year registration period.

Some professionals practice their profession as individual licensed practitioners. Others practice in some sort of corporate or business entity structure. Not all such structures may legally provide professional services. The following brief descriptions are based in law and address different corporate practice venues. These descriptions provide basic information on acceptable organizational structures for professionals. This general information is no substitute for consulting the law and/or an attorney directly for guidance before deciding to practice in a specific corporate arrangement. There are many factors, including tax consequences, and personal and professional liability, to consider when deciding which form a professional practice should take.

• Professional service corporations (PSC) authorized under Article 15 (domestic - New York) of the New York State Business Corporation Law. All shareholders, officers, and directors must be licensed by New York State in one or more of the design profession(s) they are practicing (engineering, land surveying, architecture, landscape architecture).
• Design Professional corporations (DPC) authorized under Article 15(domestic- New York) are corporations that have the flexibility of offering an ownership interest in the corporation to non-licensees. The law requires that greater than 75% of the stock be owned by licensed design professionals, greater than 75% of the directors and officers be licensed design professionals, and that the largest single shareholder be a licensed design professional or, with certain restrictions, an Employee Stock Ownership Plan (ESOP). The president, chief executive officer and the chair of the board of directors also must be licensed design professionals.
• Professional service corporations (PSC) authorized under Article 15-A (foreign PSC) of the New York State Business Corporation Law. Only the individual(s) actually providing professional services must be licensed in New York State. All other officers, directors, and shareholders must be licensed design professionals in the original jurisdiction in which the foreign professional service corporation is licensed to do business.
• Professional limited liability companies and foreign professional limited liability companies. All members must be licensed to provide professional services in New York State.
• Partnerships, limited liability partnerships, and foreign limited liability partnerships. All partners must be licensed to provide professional services in New York State.
• General Business Corporations "inc."
  • Except where specifically authorized by law, general business corporations cannot provide professional engineering and/or land surveying services, exercise any judgment over the delivery of professional engineering and/or land surveying services, have employees who offer professional engineering or land surveying services to the public, hold itself out as offering professional engineering and/or land surveying services, or share profits or split fees with licensed professionals.
  • A General Business Corporation may employ licensed professionals to provide in-house services. For example General Motors may employ licensed or unlicensed engineers to provide engineering services for the corporation. However, General Motors may not set up a business to provide engineering services to the public.
  • The exception are a finite group of general business corporations that were in existence and providing professional engineering and/or land surveying services on April 15, 1935, and continuously thereafter, and were lawfully engaged in the practice of professional engineering in New York State. State law requires that the chief executive officer be a New York State licensed professional engineer or land surveyor as appropriate. (These corporations are often referred to as "grandfathered" corporations). They may be bought and sold and may or may not retain a corporate address in New York. However, as long as they retain their corporate identity and stay in compliance with New York laws, they may continue to provide professional engineering and/or land surveying services in New York.

• All business entities legally permitted to provide professional engineering and/or land surveying services in New York State are required to obtain a "Certificate of Authorization to Provide Engineering or Land Surveying Services in New York State" from the State Education Department according to section 7210 of the New York State Education Law. This requirement applies to all types of business entities listed previously as well as general business corporations that are authorized pursuant to section 7209(6) of the Education Law - the "grandfathered" corporations.
• Individual licensees, who are legally permitted to practice engineering and/or land surveying in New York State, can obtain a "Certificate of Authorization" according to section 7210 of New York State Education Law, however, they are not required to do so.
• Additional information is available on the Professional Corporations website and the Application for a Certificate of Authorization to Provide Professional Engineering or Land Surveying Services in New York State can be obtained by contacting the Office of the Professions, Professional Corporations Unit at 518-474-3817 ext. 400; Fax 518-473-5515; e-mail opcorp@nysed.gov. 
   

Yes - business entities, as listed in question 6, that are legally permitted to provide professional engineering and land surveying services in New York State are required to obtain two (2) Certificates of Authorization; one Certificate to provide professional engineering services and a second Certificate to provide land surveying services. For more information contact the Office of Professions, Professional Corporations Unit at 518-474-3817 Ext. 400; Fax 518-473-5515; e-mail opcorp@nysed.gov.

Generally speaking, no. However, there is a finite group of general business corporations that may provide professional engineering and/or land surveying services. These corporations were in existence and providing professional engineering services on April 15, 1935, and continuously thereafter, and were lawfully engaged in the practice of professional engineering in New York State. State law requires that the chief executive officer be a New York State licensed professional engineer and/or land surveyor. (These corporations are often referred to as "grandfathered" corporations). They may be bought and sold and may or may not retain a corporate address in New York. However, as long as they retain their corporate identity and stay in compliance with New York laws, they may continue to provide professional engineering and/or land surveying services in New York.

No entity or individual except those described in the preceding (including a general business corporation that may be authorized under the laws of another state to practice there) may practice professional engineering and/or land surveying in New York State. A foreign professional service corporation is exempt from this general prohibition as previously described.

No. Not as an employee or officer of that company. A person who is licensed (or otherwise authorized) to practice in New York State and is an officer or employee of a general business corporation operating in New York State or in a state other than New York cannot provide professional engineering or land surveying services in New York as an officer or employee of that firm, but can do so as an individual. In other words, a contract with a New York client must be between the individual licensee and the client and not the corporation employer and the client.

No. An entity not authorized to provide professional engineering and/or land surveying services, such as a general contractor, can not subcontract with a licensed professional engineer or land surveyor in order to provide professional services to a third party client. The basis for professional regulation is that the service of the professional must be provided directly from the professional to the client without any unlicensed third party between the client and the professional. This unlicensed third party may have other interests (such as financial) that could jeopardize the level and/or quality of the professional service received by the client.

The laws of the State are clear in regard to unauthorized practice. Section 6512.1 of the Education Law makes it a class E felony for anyone not authorized to practice who practices or offers to practice or holds themselves out as being able to practice professional engineering/land surveying. Section 6509 defines professional misconduct as, among other things, permitting, aiding or abetting an unlicensed person to perform activities requiring a license; and, section 6512.2 makes it a class E felony for anyone, including a public official, to knowingly aid or abet three or more unlicensed persons to practice a profession requiring a license.

The New York State Board of Regents adopted a revision to section 29.3(b) in its rules on unprofessional conduct for the design professions. This revision, which became effective June 14, 1996, describes activities of licensed professionals which will not be considered to be unprofessional conduct. In order to assist design professionals to better understand its meaning and applicability, the following "plain language" interpretation of the revision has been prepared.

• It is not unprofessional conduct for a licensed professional to delegate or assign the performance of a professional service through an unlicensed third party, such as a contractor or subcontractor, to another licensee.
• It is not unprofessional conduct for the licensee to whom the work is delegated to accept and perform such work.
• Under these circumstances, the unlicensed third party would not be considered to be engaging in illegal practice.
• The work that can be delegated must be limited to work that is "ancillary" to the main project components.
• The licensee delegating the work must specify all of the design parameters that the design must meet.
• The licensee who has delegated the design function, upon receiving the design, must review and approve the design as meeting the design parameters that were specified and to ensure that the designed element can be integrated into the overall project.
• A licensee is always responsible for his or her work even if such work has been endorsed or accepted by another licensee.

Real Property Law was amended September 2004 by adding a new Article 12-B "The Home Inspection Professional Licensing Act." Starting December 31, 2005 a license issued by the NYS Department of State (DOS) will be required for persons engaged in performing home inspections of residential buildings for compensation. Exempt from this licensure requirement are architects and professional engineers licensed and currently registered by the NYS Office of Professions who are lawfully practicing within the scope of their profession. For more information on the Home Inspection Professional Licensing Act, visit the DOS Web site.

In accordance with Article 12-B "The Home Inspection Professional Licensing Act" a professional engineer may provide home inspection services under the exemption when:

• They are providing these services as part of their practice as a professional engineer. The professional engineer's business entity must have a Certificate of Authorization to provide engineering services issued by the New York State Education Department or, if a sole proprietor licensed as professional engineer, they must qualify for such a Certificate. For information regarding the entities that may legally provide engineering services and how to obtain a Certificate of Authorization, please see question Nos. 6 and 7.

A Professional Engineer may not provide home inspection services under the exemption if they are an owner, employee or subcontractor of a general business corporation or "Inc.". Under this scenario they would need to obtain a home inspection license.

Note: There are a finite group of general business corporations that were in existence and providing professional engineering services on April 15, 1935, and continuously thereafter, and were lawfully engaged in the practice of professional services in New York State. (These corporations are often referred to as "grandfathered" corporations and hold a Certificate of Authorization to practice engineering). Such corporations may lawfully provide professional services within the state and may not need to obtain a license to perform home inspection if such inspection is performed within the scope of practice of engineering.

In accordance with General Obligations Law section 9-105 a land surveyor, authorized agent or employee may cross or enter land when:

• "reasonable efforts" have been made to notify the landowner and if applicable the lessee, that they have an intention to enter the land to make a survey. Notification should include the name of the land surveyor, scheduled date, and time of entry and duration of survey. In addition, the land surveyor should document their attempts at notification, and these attempts should be in writing.
• operations related to the survey upon such land are performed during reasonable hours and within a reasonable distance from the property line of the land being surveyed.
• proper identification as to registration or employment is carried and displayed upon request.

The licensee may, where circumstances warrant, be found guilty of misconduct in accordance with the Rules of the Board of Regents part 29.1 - willful or grossly negligent failure to comply with Federal, State or local laws, rules or regulations governing the practice of the profession. In addition, failure to comply with the right of entry requirements of General Obligation Law 9-105 could remove any protection the land surveyor, agent or employee may have under the law.

Please note: under this statute, the land surveyor, agent or employee would appear to continue to be civilly liable for damage to land or personal property and may not enter any building or structure on such land.

Under New York State Law, the preparation and certification of a SPCC Plan by a Professional Engineer is within the scope of practice of engineering. The USEPA and New York State require that every SPCC Plan be prepared in accordance with good engineering practices and certified by a NYS Professional Engineer unless the facility is qualified to self-certify their plan as a "Tier I" or "Tier II" facility. Guidance regarding which facilities qualify to self-certify their SPCC plan can be found on USEPA’s website at www2.epa.gov/oil-spills-prevention-and-preparedness-regulations/fact-sheet-my-facility-qualified-facility-under.

The NYS Department of Environmental Conservation (NYSDEC) requires that SPCC plans prepared in accordance with the federal program (40 CFR Part 112) be submitted along with applications for a license for a Major Oil Storage Facility (MOSF; see www.dec.ny.gov/chemical/2644.html). NYSDEC does not, however, have any laws or regulations that are more stringent than USEPA's rules for self-certifying SPCC plans.

Therefore the NYS licensed professional engineer who is responsible for the preparation and certification of the SPCC plan is required either to be employed by a firm that is authorized to provide services in NYS (has obtained a Certificate of Authorization from NYSED), or works as a sole proprietor, or is employed by the facility.

For information regarding permissible forms of practice, please visit our website.