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November 18, 2010

Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position

Jurisdiction has the authority to set licensing requirements as part of the qualification for appointment to a position
New York State Socy. of Professional Engrs., Inc. v City of New York, 2010 NY Slip Op 08352, Decided on November 16, 2010, Appellate Division, First Department

Prior to September 3, 2008, the New York City Charter required that the Commissioner of Buildings had to be a licensed professional engineer or registered architect.

New York City Local Law 39, which took effect on September 3, 2008, amending §641 of New York’s City Charter to provided that either the Commissioner of Buildings or the First Deputy Commissioner to be a licensed professional engineer or a registered architect. §642 was also amended to authorize the Commissioner to delegate any duties to the First Deputy Commissioner.

New York State Society of Professional Engineers, Inc., challenged this amendment and asked the court to declare Local Law 39 unconstitutional on its face on the grounds that it was inconsistent with and preempted by Articles 145 and 147 of the State Education Law, which, respectively, set out the State’s licensing requirements for professional engineers and registered architects.

The Society also contended that by no longer requiring the Commissioner to be a licensed professional engineer or registered architect, the City Council has thereby permitted that official to engage in the practice of engineering without a license.

The Appellate Division rejected the Society’s claim, holding that the fact that an unlicensed Commissioner had the expressed power to delegate any duties that involve the practice of engineering or architecture to a properly licensed Deputy First Commissioner validates Local Law 39.

In addition, the court ruled that the State law does not preempt the City from establishing the qualifications for the offices of Commissioner and First Deputy Commissioner of Buildings, as the City is specifically permitted to set and enforce its own Building Code.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08352.htm

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.