ARCHITECTS 2016 LEGISLATIVE PROGRAM
AIA New York State Board of Directors President Margaret O’Donoghue Castillo, FAIA
President Elect Robert E. Stark, AIA
Vice President/ Government Advocacy Kirk Narburgh, AIA Vice President/Knowledge Jeffery T. Smith, AIA Vice President/Public Advocacy Marcus Marino, AIA Secretary Sherida E. Paulsen, FAIA
Treasurer Mark V. Kruse, AIA
Immediate Past President Timothy G. Boyland, AIA AIA Regional Representatives Illya Azaroff, AIA Randolph J. Collins, AIA Jessica Sheridan, AIA Associate Director David Flecha, Assoc. AIA
National Associates Committee Regional Associate Director James Yankopoulos, Assoc. AIA
A Message from the V.P. of Government Advocacy The architecture profession in New York State is experiencing a historic number of individuals achieving licensure and in the future we could eclipse California as the state with the most registered architects. New York is on the cusp of a great opportunity to help foster an environment in which these individuals have the confidence to launch new firms and contribute to the growth Kirk Narburgh, AIA of the State’s economy. To seize this opportunity, New York needs to make necessary changes to bolster the attraction of owning a design firm and put us on par with other states. New York lags far behind most states in the areas of liability reform and the use of alternative project delivery methods for public construction projects. To date, New York and Vermont are the only states without a statute of repose law, which would help control insurance costs and provide peace of mind to architects as they transition their practice for retirement. The inaction on tort reform is a driving force behind runaway project costs and a tremendous burden to the taxpayers of New York and our profession as a whole. If New York is going to modernize its design and construction sector, it needs to allow the use of the full gamut of alternative project delivery tools, including design-bid-build, which has been a mainstay for over a century. Further, the State needs to recognize that the quality and success of a public building project is directly related to the qualifications and experience of the individuals working collaboratively on the design and construction team. AIA New York State stands ready to work with its partners in government and the design and construction industry to help New York reclaim its status as the Empire State—a leader and innovator for the future.
New York Rep to YAF Phillip Anzalone, AIA
Bronx
Long Island Joseph Chearmonte, AIA
Rochester Peter Wehner, AIA
Brooklyn Giuseppe Anzalone, AIA
New York Lance Jay Brown, FAIA James T. Crispino, AIA Stephanie Gelb, FAIA
Southern New York John G. Snyder, AIA
TBD
Buffalo/Western New York Paul J. McDonnell, AIA Central New York Stephanie Wright, AIA Eastern New York Pasquale Marchese, AIA
Peconic Dominic LaPierre, AIA Queens Willy Zambrano, AIA
Staten Island Sarah Power, Assoc. AIA Westchester + Hudson Valley John Fry, AIA
Executive Director Georgi Ann Bailey, CAE, Hon. AIANYS Legal Counsel Michael De Chiara, Esq. Anthony DiBrita, Esq. Legislative Counsel Richard Leckerling, Esq. Kate Herlihy, Esq.
AIA New York State 2016 Legislative Program Bills We Support
Pages 4-8
Design Liability Reform (A.2545/S.4931) Due Process for Design Professionals (A.6747/S.3315) Qualifications-Based Selection (A.5759-A/S.4475-A) Historic Preservation Tax Credit (A.6670/S.3631-B) Rehabilitation Tax Credits (A.4371-A/S.1295-A) (A.4398-A/S.1293-A) Emergency Responder Act (A.6214-A/S.4238-A)
Bills We Oppose
Pages 9-10
Interior Design Practice Expansion (A.3446/S.1137) Professional Certification; License Suspension (A.483) Professional Certification; Prohibition (A.3741) Construction Threshold for Design Services (A.1017/S.6605)
“The American Institute of Architects New York State: The voice of the architecture profession and a resource for its members in service to society.”
Bills We Support Design Liability Reform A.2545 (Pretlow) Status: In Assembly Higher Education Committee S.4931 (Griffo) Status: In Senate Judiciary Committee Under current law, a cause of action grounded on a theory of simple negligence brought by a third party against a design professional or construction contractor is governed by a three year statute of limitations. The cause of action does not accrue until the injury takes place—even if the plaintiff is injured decades after the design professional has completed work on the building or structure. Thus, design professionals are forced to carry insurance coverage even after they retire and these policies only last for three-to-five years on average. Without the necessary protections afforded by a clear cut off, retired individuals face substantial uncertainty and their assets are at risk even after they are deceased—placing hardship not only on themselves, but their families as well. In 2010 an analysis of 1,222 claims against New York-based construction-related professional firms insured by Victor O. Schinnerer, Inc. and CNA demonstrated that most third party claims are brought within seven years of project completion. Specifically, the study indicates that if a ten year statute of repose were in place, 100% of all claims brought during the ten year study period would have been allowed. The additional one year grace period included in the bill sets an outside limit of eleven years for those injured in the tenth year and provides additional assurance that injured parties will have a right of recourse. As the data demonstrates, the problem is not the number of actual claims brought after ten years; it is the perpetual threat of lawsuits which force design professionals to carry insurance coverage long after project completion and the inability to safeguard their assets in retirement. It is clear from both national statistics and statistics specific to New York that professional design firms are infrequently found responsible for causing property damage or bodily injury through their negligence. However, the cost of defending against these claims—most of which are meritless— drive up operating and project costs. Currently, forty-eight states have enacted a statute of repose law fixed at the time of substantial completion or at the time of payment. New York and Vermont are the only states without a statute of repose law on the books. This legislation recognizes the fact that there comes a time when a structure passes from a welldesigned building to a well-maintained building. The bill seeks to place liability on the person in the best position to correct the defects—the present owner of the building.
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Due Process for Design Professionals A.6747 (Cusick) Status: In Assembly Cities Committee S.3315 (Lanza) Status: In Senate Cities Committee Chapter 542 of the Laws of 2007 granted the Commissioner of the New York City Department of Buildings (DOB) sole discretion to revoke or suspend an architect or engineer’s filing privileges based on allegations of making a false statement. This law is in direct conflict with the State Education Department’s (SED) explicit authority to investigate, prosecute, and levy punishment for professional misconduct involving licensed design professionals. Every licensed professional in this state is afforded the right to defend him or herself against alleged misconduct before a hearing held by a panel of their peers, which is then subject to review by the Board of Regents. Chapter 542 of the Laws of 2007 circumvents the State’s authority to conduct an investigation and denies a licensee’s right to the process laid out in the Education Law. The City of New York claims that the accused party receives due process through the Office of Administrative Trial Hearings (OATH) process. In reality, however, the OATH process utilized by the DOB is a mere confirmation of the Commissioner’s initial determination and the Commissioner does not need to adhere to any of the OATH findings, even if the findings clear the accused party of wrongdoing. Further, the OATH process provides for inadequate means of appeal and restricts the architect or engineer’s ability to use their State-issued license in the largest jurisdiction without SED review. This bill does not affect the DOB Commissioner’s authority to revoke the professional certification privileges of any architect or engineer who abuses the DOB’s professional certification program. The Commissioner’s authority to revoke professional certification privileges existed prior to the enactment of Chapter 542 of the Laws of 2007 and would not be impacted by this legislation. The DOB should have the authority to ensure that professionally certified documents are to code, but it should not, under any circumstance, be able to circumvent the Education Law to prosecute and sanction individuals licensed by the SED in cases of alleged professional misconduct.
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Qualifications-Based Selection for Professional Design Services A.5759-A (Benedetto) Status: In Assembly Corporations, Authorities and Commissions Committee S.4475-A (DeFrancisco) Status: In Senate Corporations, Authorities and Commissions Committee The intent of this bill is to ensure that public authorities and public benefit corporations receive the services of the most qualified contractor through the establishment of a mechanism for the procurement of engineering, architectural, and surveying services. Instead of cost-based procurement which focuses primarily on price, Qualifications-Based Selection (QBS) procurement focuses on qualifications and experience as the paramount basis for selection. The QBS process is recommended by the American Bar Association in its Model Procurement Code, the U.S. General Services Administration, the National Society of Professional Engineers, the American Council of Engineering Companies, the New York State Construction Industry Council, the New York State Conference of Mayors, and the New York State Education Department’s Office of Facility Planning, all of whom believe QBS is in the best interest of the public client and the taxpayer.
Historic Preservation Tax Credit A.6670 (Englebright) Status: In Assembly Ways & Means Committee S.3631-B (Ranzenhofer) Status: In Senate Investigations and Government Operations Committee The Historic Preservation Tax Credit has been used successfully by developers throughout New York to restore buildings which have fallen into neglect. This credit has helped rejuvenate historic downtown areas by turning once dormant properties into revenue generating properties once more. While the credit has been successful, the current $5 million per project cap acts as a disincentive for developers to tackle larger, more blighted and expensive projects. This legislation would continue the 20% credit while gradually raising the maximum cap from $5 to $7 million in SFY 2018-19, $7 to $9 million in SFY 2019-20, and $9 to $12 million in SFY 2020-21. If this bill were to become law it would be deemed repealed on December 31, 2022, unless extended by the Legislature. Raising the cap on this credit will not only benefit communities across the state, it will create jobs and improve the quality-of-life for residents living near these renovated buildings.
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Rehabilitation Tax Credits Commercial Properties A.4371-A (Schimminger) Status: In Assembly Ways and Means Committee S.1295-A (Ranzenhofer) Status: In Senate Investigations and Government Operations Committee This legislation would establish an income tax credit for the rehabilitation of taxpayer-owned distressed commercial properties in the amount of 30% of qualified rehabilitation expenditures over $10,000. The maximum credit would be $100,000. Expenditures must be made between January 1, 2016 and December 31, 2021. Qualifying properties would be located within areas in need of community renewal due to dilapidation and vacancy, and would be approved by a locality as having been completed by the issuance of a certificate of occupancy. Acquisition costs and costs related to enlargement of the building would not qualify. If the distressed commercial property is rental property, it would be eligible for the credit if it has been more than 30% vacant for a year while actively marketed for lease. This approach to rehabilitation is appropriately targeted to update aging structures in need of renewal. This strategy has the potential to generate substantial economic activity statewide, by attracting investment where it is most needed and by enhancing outdated built environments.
Residential Properties A.4398-A (Schimminger) Status: In Assembly Ways and Means Committee S.1293-A (Ranzenhofer) Status: In Senate Investigations and Government Operations Committee This legislation would establish an income tax credit for the rehabilitation of taxpayer-owned distressed residential properties in the amount of 30% of qualified rehabilitation expenditures over $10,000 made between January 1, 2016 and December 31, 2021. The maximum credit allowed would be $100,000 Qualifying properties are defined as those constructed prior to January 1, 1962 which have been substantially rehabilitated and located in distressed residential or mixed-use neighborhoods. Rental property may also qualify if it has been vacant and on the market for six months or more. As with the proposed credit for distressed commercial properties, the locality would certify the rehabilitation by means of issuing a certificate of occupancy. This approach to rehabilitation is appropriately targeted to update aging structures in need of renewal. This strategy has the potential to generate substantial economic activity statewide by attracting investment where it is most needed and by enhancing outdated built environments.
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Emergency Responder Act A.6214-A (Englebright) Status: In Assembly Government Operations Committee S.4238-A (Savino) Status: In Senate Veterans, Homeland Security and Military Affairs Committee This legislation would provide licensed design professionals and others in the building and construction industry with liability protection for providing advice, professional services, labor, and materials during a declared state of emergency. In passing this legislation, New York would join 30 other states which provide immunity to design professionals who volunteer or offer their services during times of crisis and catastrophe. During and after a catastrophic event, architectural, engineering, construction expertise and skills are needed to assess the integrity of buildings, infrastructure, and their engineered systems, and provide advice on how to best stabilize, repair and rehabilitate the damaged structures. Professional engineers, architects, landscape architects, land surveyors, geologists, contractors, subcontractors, laborers and suppliers are willing to assist their communities, states and the nation in times of crisis. The public sector currently provides liability protections to its employees for response and recovery work. However, private individuals and firms within the construction industry face substantial liability exposure when furnishing services to assist various levels of government during and after a disaster. States prone to natural disasters recognize the importance of liability protection for emergency responders, as it encourages more volunteers—leading to an increase in response and recovery capacity. Disasters on scale with Hurricane Sandy require thousands of life-safety inspections of structures, infrastructure and public spaces. If government can mobilize the private sector in an expeditious manner with the proper protections, response and recovery times will decrease and the public will be better protected from dangers borne in the aftermath of a catastrophic event. This proposal is in-line with the Governor’s goal of leveraging the private sector to rapidly respond to the State’s needs in an emergency. AIANYS and its partner organizations are committed to ensuring that communities are prepared for future disasters. Extending liability protection to licensed design professionals and others in the building and construction industry during and immediately after a declared emergency will greatly enhance response and recovery efforts.
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Bills We Oppose Interior Design Practice Expansion A.3446 (O’Donnell) Status: In Assembly Higher Education Committee S.1137 (Avella) Status: In Senate Higher Education Committee This bill would amend the Education Law to expand the current scope of practice for certified interior designers and would attempt to place the practice of interior design on par with the licensed design professions without a corresponding increase in education or experience requirements. Specifically, the bill would allow an interior designer to obtain building permits without the proper licensed oversight—a goal which jeopardizes public safety. The practice of interior design is limited to the planning and design of furnishings, layouts, fixtures, cabinetry, lighting, finishes, and other specifications not related to nor materially affecting building systems. The interior of a building is much more than an amalgamation of furnishings, fixtures, colors and textures. A building is a complex system which requires advanced knowledge and experience to design and coordinate life-safety systems for exterior and interior spaces. If these functions are performed by an untrained and unlicensed individual, the public safety, the licensed design professions, and the construction industry as a whole will be profoundly impacted. On average, architects are required to complete more than twice the post-secondary education of interior designers and must complete nearly 2,000 more training hours than interior designers. These training hours—unlike those of interior designers—are prescriptive in nature, covering lifesafety codes and other regulatory issues that impact the well-being of a structure’s occupants. Moreover, there are stark differences in content between the interior design exam and the Architectural Registration Exam (ARE). Architects are comprehensively tested to design the whole building as one unit to ensure functionality of its systems.
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Professional Certification; License Suspension A.483 (Cymbrowitz)/No Same As Status: In Assembly Higher Education Committee This bill would require the Board of Regents to consider violations of New York City’s professional certification program as a violation leading to the suspension of an architect or engineer’s professional license. AIA New York State is as committed as the New York State Legislature is to preventing abuses that have occurred in the professional certification process. Such abuses are detrimental to the public safety and welfare of New York City residents and a detriment to the profession. Current law provides substantial disciplinary powers to the State Education Department’s (SED) Office of Professional Discipline (OPD) to investigate, prosecute, and punish misconduct involving licensed design professionals throughout the State. These powers apply equally to the abuse of privileges, such as New York City’s professional certification program. Further, NYC DOB currently has the authority to revoke the professional certification privileges of a Registered Architect/Professional Engineer and is statutorily obligated to provide notice to SED upon any adverse determination leading to a sanction of privileges. We agree that much more should be done to punish bad actors who abuse their license or practice illegally. We have worked to ensure that registration fees are being used to strengthen enforcement—to the point of supporting fee increases. This bill overreaches in its attempt to solve a problem that will perpetuate without proper enforcement. We also believe that this bill continues to advance the seriously flawed notion that the licensed design professional is the sole responsible party in construction complaints.
Professional Certification; Prohibition A.3741 (Brennan)/No Same As Status: In Assembly Cities Committee This bill would require that city employees in all cities in New York State approve plans for new construction of any structure within its boundaries. In so doing, this legislation would prohibit any architect or engineer from certifying building plans. Abolishing professional certification programs, especially in New York City, could result in a tremendous administrative backlog in the already overburdened Department of Buildings, and have long-term negative consequences for both the building community as well as its occupants.
Construction Threshold for Design Services A.1017 (Gunther) Status: In Assembly Higher Education Committee S.6605 (Ritchie) Status: In Senate Higher Education Committee This bill, introduced at the request of the Legislative Commission on Rural Resources, would increase the threshold for which the professional services of an architect are required from $20,000 to $50,000 for alterations to buildings/structures outside New York City. The threshold would apply to both public and private projects. We believe these provisions would compromise public safety and are not in the public interest. 10
Chapter Presidents AIA Bronx Antonio Freda, AIA AIA Brooklyn Glen V. Cutrona, AIA AIA Buffalo/Western NY Timothy M. Rider, AIA AIA Central NY Fred Koenig, AIA AIA Eastern NY Mark Thaler, AIA AIA Long Island Joseph Iannucci, AIA AIA New York Carol Loewenson, FAIA AIA Peconic Luis Peris, AIA AIA Queens Willy Zambrano, AIA AIA Rochester James Yarrington, AIA AIA Southern NY Andrew J. Harding, AIA AIA Staten Island James Oliva, AIA AIA Westchester + Hudson Valley Manuel Andrade, AIA
Component Executives AIA New York State Georgi Ann Bailey, CAE, Hon. AIANYS AIA Brooklyn Susana Honig, AIA AIA Central NY Sarah Testa AIA Eastern NY Meghan McGrath AIA Long Island Ann LoMonte, Hon. AIANYS AIA New York Benjamin Prosky AIA Peconic Kay Jones AIA Rochester Linda Hewitt, Hon. AIANYS AIA Westchester + Hudson Valley Valerie Brown, Hon. AIANYS 11
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ARCHITECTS