Calculations or a crime? Judge will determine if talking about engineering amounts to practicing engineering

Calculations or a crime? Judge will determine if talking about engineering amounts to practicing engineering
Published: Jun. 1, 2022 at 4:43 PM EDT
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WILMINGTON, N.C. (WECT) - With a degree in engineering and a 40-year career working as an engineer in North Carolina, Wayne Nutt has plenty of experience in his field, but he never held an engineering license from the state. The lack of a license never caused any problems for those years he practiced engineering, but now that he’s retired, he’s been told talking about engineering in any official capacity, is a crime.

Last year, the North Carolina State Board of examiners for Engineers and Surveyors sent Nutt a letter saying the board was investigating charges against him for practicing engineering without a license.

Nutt’s fight for his right to speak about the subject he dedicated his life to continues in federal court, and his attorney is hoping a judge rules that the right to free speech can’t be limited by a state board.

“We filed for summary judgment, telling the court that there’s no factual dispute here, and that the case should be decided in our favor without the need to go to a trial … The judge will review those papers, and will either ask for oral argument, or will make a decision based on what we submitted, and if it’s the latter, that could be several months before we reach a decision on that,” Nutt’s attorney Joe Gay, said.

In June of 2021, the Institute for Justice, a national law firm, filed a lawsuit in federal court in Wilmington against the state board claiming the board’s actions violate Nutt’s First Amendment Rights.

“Wayne never had a license because he never needed a license. Like most engineers, he practiced under what’s called an industrial exemption, which means he could practice engineering without being licensed by the state. It’s only now that he’s retired and he wants to talk about engineering, that he’s now having issues,” Gay said.

Despite only offering calculations and analysis, the state board claims Nutt practiced engineering, and has asked the judge to rule in its favor, confirming Nutt illegally practiced engineering.

“As set forth above and in the Complaint filed in the above-captioned action, a dispute has arisen concerning whether the activities of Wayne Nutt in the performance of services and work as a designated expert witness in preparing an expert report and providing deposition testimony in support of the expert report constitutes the unauthorized practice of engineering,” according to a response to the federal suit filed by the NCBELS.

If the judge sides with the state board, Nutt could be found guilty of a misdemeanor.

“Any person who shall attempt to use an expired or revoked or nonexistent certificate of licensure, or who shall practice or offer to practice when not qualified, or any person who falsely claims that the person is registered under this Chapter, or any person who shall violate any of the provisions of this Chapter, in addition to injunctive procedures set out hereinbefore, shall be guilty of a Class 2 misdemeanor. In no event shall there be representation of or holding out to the public of any engineering expertise by unlicensed persons,” according to state law.

However, Nutt and his attorney argue talking about engineering and making calculations which are verifiable, and creating reports based on empirical evidence are not the same thing as practicing engineering.

“He doesn’t want to practice engineering, he just wants to speak about engineering issues that he sees affecting his community. And he wanted to testify in a lawsuit about a pipe that may have caused flooding for some homeowners and he received a letter from the North Carolina Board of Engineering, telling him that he may not speak, that it would be a crime for him to speak, because he is not a licensed engineer,” Gay said.

He also says there is nothing stopping the state from restricting who can and can’t be an engineer and require licenses for physical engineering projects.

“If you want to build a bridge, you have to have a licensed engineer stamp plans before that bridge can be built. No one is saying that you can’t do that, but if you want to talk about the bridge, if you want to criticize the bridge, or say that a design flaw — point out design flaws in the bridge — you should be allowed to do that. And you shouldn’t need a license from the government to be able to lodge those criticisms,” Gay said.

That argument is summed up in just a few sentences.

“The problem with Defendants’ position is that speech about engineering is just that: speech. It cannot make bridges fall down (or go up, for that matter). And the government cannot restrict speech simply because it fears someone might wrongly choose to listen to it,” a motion for summary judgement submitted to the court reads.

But the state board stands by its initial determination and is asking the judge to rule in its favor by saying Nutt’s testimony and work he performed as an expert witness amount to performing engineering work without a license.

“Counterclaim Plaintiffs respectfully pray for the following: That this Court declare that the work completed by Wayne Nutt in consultation with his clients in File Number 19 CVS 4520, engineering calculations performed by Wayne Nutt, analysis conducted by Wayne Nutt, and preparation of the expert report(s) in the lawsuit identified as Jackie W. Autry, et al. v. Bill Clark Homes, LLC, et al, New Hanover County Superior Court, File Number 19 CVS 4520 constitutes the unauthorized practice of engineering,” the state board wrote in a counterclaim.

The State Board of Examiners for Engineers and Surveyors accepted calls from WECT, but due to the ongoing litigation, reporters were directed to speak with the board’s outside counsel who has not yet responded to a request for comment.

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