Licensing; Professional Engineers

Subject:

Requested By: Montgomery T. Speir Executive Secretary State Board of Registration for Professional Engineers and Land Surveyors

Question: Must a professional engineer duly licensed under Chapter 89C of the General Statutes of North Carolina also be licensed as a private investigator under Chapter 74C in order to provide engineering related services which include investigative and consultant work?

Conclusion: No.

The applicable portions of Chapter 89C of the General Statutes provide:

"§ 89C-3(6). Practice of Engineering. – a. The term, "practice of engineering," within the intent of this Chapter, shall mean . . . such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems . . . ." (emphasis added)

Prior to October 1, 1987, the applicable portions of Chapter 74C of the General Statutes read:

"§ 74C-2(a) Licenses Required. – No private person, firm, association or corporation shall engage in, perform any services as, or in any way represent or hold itself out as engaging in a private protective service business or activity in this State without having first complied with the provisions of this Chapter."

§ 74C-3(a) private protective services business defined. – . . .

(a)(8) ‘Private detective’ or ‘private investigator’ means any person who engages in the business of or accepts employment to furnish, agrees to make, or makes an investigation for the purpose of obtaining information with reference to . . . .

(d) The cause or responsibility for fires, libels, losses, accidents, damages or injuries to persons or to properties, provided that scientific research laboratories and consultants shall not be included in this definition . . . ."

§ 74C-8(d) . . . the applicant shall be required to show that he meets all of the following requirements and qualifications hereby made prerequisite to obtaining a license. . . (3) For a private detective license, that he has had at least three years experience within the past five years in private investigative work, or in an investigative capacity as a member of any federal law enforcement agency, any State law enforcement agency, any municipal law enforcement department or any county law enforcement or sheriff’s department.

Effective October 1, 1987, G.S. § 74C-3(b) was amended to read:

§ 74C-3(b) ‘Private protective services’ shall not mean:

(10) A consultant who analyzes, tests, or in any way applies his expertise to interpreting, evaluating, or analyzing facts or evidence submitted by another in order to determine the cause or effect of physical or psychological occurrences, and furnishes his opinion and findings to the requesting source or to a designee of requestor . . .’

Under the provisions of the applicable sections of the General Statutes as set out above, it is concluded that if a professional engineer duly licensed under Chapter 89C were to conduct an investigation within the scope of his work, training and expertise as a professional engineer, he would not be required to obtain a license as a private investigator under Chapter 74C.

To properly understand this conclusion, it is necessary to review rules of statutory construction. Initially, statutes containing specific language control over statutes containing general language. Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 151 S.E.2d 582 (1966).

‘Where there is one statute dealing with a subject in general and comprehensive terms, [Chapter 74C] and another dealing with a part of the same subject in a more minute and definite way, [Chapter 89C] the two should be read together and harmonized, . . . but to the extent of any necessary repugnancy between them, the special statute . . . [Chapter 89C] will prevail over the general statute [Chapter 74C] . . . .’

Food Stores, 268 N.C. at 628.

It is a cardinal principle of statutory construction that the intent of the Legislature is controlling. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1977). Further, "[a] construction which will defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language." Hardy, 294

N.C. at 96.

The language of G.S. § 89C-3(6) specifically grants a licensed professional engineer the authority to perform work such as investigation and consultation. Applying Food Stores, the specific provisions of G.S. § 89C-3(6) should prevail over the more general provisions of G.S. § 74C3(a)(8).

The legislature has made it clear that licensed professional engineers need not be licensed as private investigators in order to engage in "investigation and consultation" that is included within the definition of the "practice of engineering" as defined by G.S. § 89C-3(6). Notably, the plain language of G.S. § 74C-8(d)(3), which prescribes the experience requirements to obtain a private detective license, has the practical effect of precluding a licensed professional engineer from becoming a licensed private detective. A major prerequisite for obtaining a private detective license is that applicants have law enforcement experience. The practice of engineering, as defined in G.S. § 89C-3(6), includes a listing of numerous activities which may be engaged in by a licensed professional engineer. However, from reviewing the permitted activities, it is apparent that none specifically relates to law enforcement. To interpret Chapter 74C as requiring licensed professional engineers to obtain a private investigator’s license would defeat the intent of G.S. § 89C-3(6) which allows licensed professional engineers to conduct investigations. The language of the statute will be interpreted to avoid absurd consequences. Person v. Garrett, 280 N.C. 163, 184 S.E.2d 873 (1971); Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966); State v. Burrell, 256 N.C. 288, 123 S.E.2d 795 (1962).

Existing case law supports the conclusion reached herein. There are no cases in this jurisdiction which address this issue. Accordingly, it is appropriate to examine case law in other jurisdictions. Specifically, the decision of the California Court of Appeals in Kennard et. al. v. Rosenberg, 127 Cal. App. 2d 340, 273 P.2d 839 (1954) is instructive.

In Kennard, T. G. Kennard and J. F. Drake, both registered chemical engineers in the State of California, were hired by Mr. Rosenberg to investigate a fire which occurred on his property. The engineers sued Rosenberg for fees owed them after Rosenberg claimed the fees were not owed because they were not licensed as private investigators. California’s Business and Professions Code §§ 7520 and 7521 prescribed the requirements to obtain a license as a private investigator:

§ 7520 "No person shall engage in a business regulated by this chapter; act or assume to act as; or represent himself to be a licensee unless he is licensed under this chapter; and no person shall falsely represent that he is employed by a licensee."

§ 7521 "A Private investigator within the meaning of this chapter is a person other than an insurance adjuster who, for any consideration whatsoever engages in business or accepts employment to furnish, or agrees to make, or makes, any investigation for the purpose of obtaining, information with reference to: * * * the cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property; or securing evidence to be used before any court, board, officer, or investigating committee."

Kennard, 273 P.2d at 841. n1

n1 It is noted that the California statute of 1954 is substantially identical to Chapter 74C.

The engineers conducted tests on samples obtained from the fire scene, examined the premises, interviewed witnesses, and examined photographs. The Court ruled:

. . . it was the intent of the legislature to require those who engage in business as private investigators and detectives to first procure a license so to do; that the statute was enacted to regulate and control this business in the public interest; that it was not intended to apply to persons who, as experts, where employed as here, to make tests, conduct experiments and act as consultants in a case requiring the use of technical knowledge.

Kennard, 273 P.2d at 842. (emphasis added)

Clearly, the Court’s reasoning in Kennard is persuasive. Furthermore, Kennard supports the conclusion that a professional engineer duly licensed under Chapter 89C is not required to be licensed as a private investigator in order to provide engineering related services which include investigative and consultant work.

LACY H. THORNBURG ATTORNEY GENERAL

William W. Melvin Senior Deputy Attorney General