{ "id": 8551571, "name": "NORTH CAROLINA STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS v. INTERNATIONAL BUSINESS MACHINES CORPORATION and KENNETH M. FURR", "name_abbreviation": "North Carolina State Board of Registration for Professional Engineers & Land Surveyors v. International Business Machines Corp.", "decision_date": "1976-12-15", "docket_number": "No. 7610SC454", "first_page": "599", "last_page": "608", "citations": [ { "type": "official", "cite": "31 N.C. App. 599" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "222 S.E. 2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569619 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0343-01" ] }, { "cite": "187 S.E. 2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572863 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0531-01" ] }, { "cite": "103 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "248 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622440 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/nc/248/0303-01" ] }, { "cite": "223 So. 2d 437", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11296401 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/so2d/223/0437-01" ] }, { "cite": "166 A. 2d 920", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8125978 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/a2d/166/0920-01" ] }, { "cite": "141 N.W. 2d 235", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1966, "opinion_index": 0 }, { "cite": "30 Wis. 2d 434", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8670356 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/wis-2d/30/0434-01" ] }, { "cite": "89 N.E. 2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "86 O. App. 497", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1398141 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ohio-app/86/0497-01" ] }, { "cite": "261 Iowa 456", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2350354 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/iowa/261/0456-01" ] }, { "cite": "291 N.E. 2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "191 A. 2d 646", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1963, "opinion_index": 0 }, { "cite": "56 Del. 170", "category": "reporters:state", "reporter": "Del.", "case_ids": [ 1777066 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/del/56/0170-01" ] }, { "cite": "144 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575540 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0413-01" ] }, { "cite": "177 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563328 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0119-01" ] }, { "cite": "147 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 136", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558704 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0136-01" ] }, { "cite": "154 S.E. 2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567865 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0323-01" ] }, { "cite": "51 S.E. 2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "229 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12168052 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/229/0764-01" ] }, { "cite": "186 S.E. 2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572515 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0460-01" ] }, { "cite": "186 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] } ], "analysis": { "cardinality": 862, "char_count": 23045, "ocr_confidence": 0.677, "pagerank": { "raw": 6.488855327395066e-08, "percentile": 0.39920918169360453 }, "sha256": "14d2fba53dcb5dcd48c8ca4fa02883920b988f3f538562adcbabbb60d92dd1d2", "simhash": "1:fa4fad28b52da020", "word_count": 3666 }, "last_updated": "2023-07-14T16:36:26.493722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Arnold concur." ], "parties": [ "NORTH CAROLINA STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS v. INTERNATIONAL BUSINESS MACHINES CORPORATION and KENNETH M. FURR" ], "opinions": [ { "text": "CLARK, Judge.\nThe issue presented upon appeal is whether the designation and use of the term \u201ccustomer engineer\u201d by defendant IBM and its employees who install, maintain, and repair its business machines is prohibited by the North Carolina Engineering and Land Surveying Act, Chapter 89C of the General Statutes of North Carolina.\nThe determination of this issue requires the construction of relevant provisions of the Engineering and Land Surveying Act, now codified as Chapter 89C. The original legislation empowering plaintiff Board to regulate the practice of engineering and land surveying was enacted in 1921. Act of 25 February 1921, Pub. Laws, ch. 1. There was a comprehensive revision of the Act in 1951. Act of 14 April 1951, Session Laws, ch. 1084. There have been several minor amendments since 1953. There were amendments in 1975 which rearranged and rewrote some of the sections for clarity. Act of 19 June 1975, Session Laws, ch. 681. However, the legislative history does not significantly aid us in construing the Act.\nThe present Act makes it unlawful \u201cfor any person to practice or to offer to practice engineering or land surveying in this State, as defined in the provisions of this Chapter, or to use in connection with his name or otherwise assume or advertise any title or description tending to convey the impression that he is either a professional engineer or a registered land surveyor, unless such person has been duly registered as such. . . .\u201d (Emphasis added.) G.S. 89C-2.\nThe term \u201cthe practice of engineering\u201d is defined by G.S. 89C-3(6)a, as follows:\n\u201cA person shall be construed to practice or offer to practice engineering, within the meaning and intent of this Chapter . . . who, by verbal claim, sign, advertisement, letterhead, card, or in any other way represents himself to be a professional engineer, or through the use of some other title implies that he is a professional engineer or that he is registered under this Chapter. ...\u201d (Emphasis added.)\nThe penal section of the Act, G.S. 89C-23 provides that\n\u201cAny person who shall practice, or offer to practice, engineering or land surveying in this- State without first being registered in accordance with the provisions of this Chapter, or any person, firm, partnership, organization, association, corporation, or other entity using or employing the words \u2018engineer\u2019 or \u2018engineering\u2019 or \u2018professional engineer\u2019 or \u2018professional engineering\u2019 or \u2018land surveyor\u2019 or \u2018land surveying,\u2019 or any modification or derivative thereof in its name or form of business or activity except as registered under this Chapter or in pursuit of activities exempted by this Chapter ... in addition to injunctive procedures set out hereinbefore, shall be guilty of a misdemeanor. ... In no event shall there be representation of or holding out to the public of any engineering expertise by unregistered persons. . . .\u201d (Emphasis added.)\nThe plaintiff Board does not contend that defendant Furr and other IBM employees who install, maintain, and repair IBM business machines are doing the work of professional engineers. It contends that the use of the title \u201ccustomer engineer\u201d by IBM and its employees (1) is a representation that these employees are professional engineers (G.S. 89C-3(6)a), and (2) is a \u201cholding out to the public\u201d that they possess \u201cengineering expertise\u201d (G.S. 89C-23).\nThe Board contends that defendants\u2019 representations of professional engineering status constitute the unregistered practice of engineering as that term is defined in G.S. 89C-3(6)a. A \u201cprofessional engineer\u201d is defined by G.S. 89C-3(8) as \u201ca person who has been duly registered and licensed as a professional engineer by the Board.\u201d It is clear from-this definition that the use of the word \u201cengineer\u201d without being modified by \u201cprofessional,\u201d \u201cregistered,\u201d or \u201clicensed,\u201d or some word of like import does not represent that one is \u201cduly registered and licensed by the Board\u201d and therefore cannot represent that one is a professional engineer as that term is defined in G.S. 89C-3(8). Since such usage does not represent professional engineering status, it cannot constitute the practice of engineering as that term is defined in G.S. 89C-3(6)a. We hold, therefore, that such usage is not a violation of those provisions of G.S. 89C-2 and G.S. 89C-23 which prohibit the practice or offer to practice engineering without proper registration.\nWe turn now to a consideration of whether the previously quoted provision of G.S. 89C-23 providing penalties for use of the words \u201cengineer\u201d or \u201cengineering\u201d or any modification thereof except as registered or exempted in the Chapter authorizes the Board to prohibit the uses which do not imply or represent professional status or expertise.\nThe language in this sentence of G.S. 89C-23 appears to be an absolute prohibition, and were it to stand in isolation, might support the Board\u2019s construction of the statute. When read in conjunction with other provisions of Chapter 89C, a more narrow meaning appears. G.S. 89C-23 itself further states that\n\u201c. . . In no event shall there be representation of or holding out to the public of any engineering expertise by unregistered persons. . . .\u201d (Emphasis added.)\nG.S. 89C-2 entitled \u201cDeclarations; prohibitions\u201d states that:\n\u201cIn order to safeguard life, health, and property, and to promote the public welfare, the practice of engineering and the practice of land surveying in this State are hereby declared to be subject to regulation in the public interest. It shall be unlawful for any person to practice or to offer to practice engineering or land surveying in this State, as defined in the provisions of this Chapter, or to use in connection with his name or otherwise assume or advertise any title or description tending to convey the impression that he is either a professional engineer or a registered land surveyor, unless such person has been duly registered as such. . . .\u201d (Emphasis added.)\nG.S. 89C-3(2) defines an engineer as \u201ca person who, by reason of his special knowledge and use of the mathematical, physical and engineering sciences and the principles and methods of engineering analysis and design, acquired by engineering education and engineering experience, is qualified to practice engineering.\u201d Finally, the plaintiff\u2019s name, as provided in G.S. 89C-4, is the State Board for the Registration for Professional Engineers and Land Surveyors. (Emphasis added.)\nWe think that a reading of the Chapter as a whole makes it clear that the Legislature was not unmindful of the generic meaning of the term \u201cengineer\u201d and its widespread usage in job titles in our society to describe positions which require no professional training. Judicial notice may be taken of the fact that garbage collectors are now called sanitation engineers and that janitors are called custodial engineers. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897 (1972); Singleton v. Stewart, 280 N.C. 460, 186 S.E. 2d 400 (1972). Defendants\u2019 Exhibit 4 contained a list of several job titles used by the State itself which contain the word engineer and which are not limited to professional engineers, such as television engineer, environmental engineering technician, engineering design technician and ferry engineer. Defendants offered other evidence which showed that terms such as customer engineer and field engineer have long been used in the computer industry to describe persons engaged in repair and maintenance work.\nRegulatory legislation which exists solely to promote the economic interests of a narrow special interest group cannot be sustained. Regulatory legislation will be sustained as a proper exercise of the police power when it has a rational relationship to the public health, safety, morals or general welfare. State v. Ballance, 229 N.C. 764, 51 S.E. 2d 731 (1949). If a statute is susceptible to two interpretations, one constitutional and the other unconstitutional, the former will be adopted. Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E. 2d 548 (1967); Randleman v. Hinshaw, 267 N.C. 136, 147 S.E. 2d 902 (1966). A statute imposing criminal penalties must be strictly construed even in civil proceedings brought thereunder. Vogel v. Supply Co. and Supply Co. v. Developers, Inc., 277 N.C. 119, 177 S.E. 2d 273 (1970). A statute restricting the practice of an otherwise lawful occupation to a special class of persons must not be construed to extend to activities and transactions not intended by the Legislature. McArver v. Gerukos, 265 N.C. 413, 144 S.E. 2d 277 (1965).\nG.S. 89C-2 makes it clear that Chapter 89C has the legitimate purpose to \u201csafeguard life, health, and property.\u201d We think that the broad language of G.S. 89C-23 must be read with this purpose in mind. G.S. 89C-23, the part of the statute prescribing penalties, must be read subject to the basic prohibitory section of the statute, G.S. 89C-2, which makes it unlawful \u201cto use in connection with his name or otherwise or advertise any title or description tending to convey the impression that he is ... a professional engineer . . . unless such person has been duly registered as such.\u201d (Emphasis added.)\nWe think the statute when read as a whole makes it clear that the Legislature\u2019s intent in the \u201crepresentation,\u201d \u201cconveying,\u201d and \u201cholding out\u201d provisions of the chapter was to protect the public from misrepresentations of professional status or expertise. There must be a representation of registration with the Board or of engineering expertise or of special knowledge and ability to use mathematical, physical, and engineering sciences or of the principles and methods of engineering analysis and design.\nWe hold, therefore, that G.S. 89C-2 and 89C-23 authorize the Board to prohibit only those uses of the title engineer which imply or represent professional engineering status or expertise.\nSince we are construing a statute, the decisions of other jurisdictions with statutes of differing language are of limited use. Nonetheless we note that several jurisdictions have construed their statutes as not applying to ordinary and common uses of the word engineer and engineering. State v. Durham, 56 Del. 170, 191 A. 2d 646 (1963); State ex rel. State Board of Registration for Professional Engineers & Land Surveyors v. Richardson, 291 N.E. 2d 373 (Ind. Ct. App. 1973); Iowa State Board of Engineering Examiners v. Electronic Engineering Co., 261 Iowa 456, 154 N.W. 2d 737 (1967); Ohio Society of Professional Engineers v. Hulslander, 86 O. App. 497, 89 N.E. 2d 119 (1949); State ex rel. Wisconsin Registration Board of Architects & Professional Engineers v. T. V. Engineers, Inc., 30 Wis. 2d 434, 141 N.W. 2d 235 (1966).\nThe Board argues that Chapter 89C authorizes it to prohibit all external uses of the word engineer. The Board concedes that with this power it could not prohibit the State from calling its janitors, in internal uses, a custodial engineer, but it asserts that with this power it could prohibit the State from calling the same employee a custodial engineer in response to a reporter\u2019s question. Want ads for custodial engineers could similarly be regulated as \u201cexternal\u201d uses. We find this distinction between internal and external uses most unpersuasive and cannot conceive that in its weakest moments our Legislature would pass a bill granting such extensive control over the English language to a board of engineers.\nWith the statute construed in this manner, we think it clear that the trial court correctly applied it to the facts in this case. The Board contends that a summary judgment was inappropriate because the question of whether there has been a \u201cholding out\u201d or \u201crepresentation\u201d is always a question of fact, or even if not always one, was raised by its pleadings and affidavits.\nThe Board has cited decisions of other jurisdictions construing statutes regulating professional engineering which contain language to the effect that the determination of \u201cholding out\u201d or \u201crepresentation\u201d is a question of fact or is to be determined from the facts and circumstances in each case. T. V. Engineers, Inc. v. District of Columbia, 166 A. 2d 920 (Mun. Ct. App. 1961); Iowa State Board of Engineering Examiners v. Electronic Engineering Co., supra, (dictum). In the Wisconsin T. V. Engineers, Inc. case, although the court used ambiguous language of this import, it decided as a matter of law that there had been no \u201cholding out.\u201d See Louisiana State Board of Registration for Professional Engineers & Land Surveyors v. Young, 223 So. 2d 437 (La. Ct. App. 1969). In none of these cases was the issue raised upon a motion for summary judgment. Even though an issue is generally one of fact, where the facts are not controverted and the rights of the parties upon the facts are questions of law, the court may enter judgment. Peoples v. Insurance Co., 248 N.C. 303, 103 S.E. 2d 381 (1958).\nPlaintiff Board argues that even if this question is not always one of fact, its pleadings and affidavits, in particular that of its secretary, Robert Ruffner, raise the issue of fact in this case. The party moving for summary judgment may offer pleadings and affidavits, setting forth facts that would be admissible in evidence to show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. G.S. 1A-1, Rule 56(c). The non-movant may not rest upon the bare allegations of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. If he fails to do so, a summary judgment, if otherwise appropriate, shall be rendered against him. G.S. 1A-1, Rule 56(e). To support their motion for summary judgment, defendants offered affidavits from three customers of IBM who stated that they had never understood the term \u201ccustomer engineer\u201d to imply professional training nor had it ever been so represented to them by IBM personnel. Defendants also introduced copies of the business cards of customer engineers and other personnel.\nThe Board offered no opposing affidavits of persons who had been misled by defendants\u2019 use of the term \u201ccustomer engineer\u201d or to whom representations of professional status or expertise had been made. The Board\u2019s basic contention was that as a matter of law it could prohibit all \u201cexternal\u201d uses of the word engineer, and therefore it relied primarily upon the admission that customers were given the business cards of the \u201ccustomer engineers\u201d and upon a newspaper article announcing defendant Furr\u2019s candidacy as a Republican for a seat in the Legislature in which he was described as a \u201ccomputer customer engineer.\u201d The Board now contends that the affidavit of its secretary, Robert Ruffner, sufficiently controverts those of the IBM customers, but all that Ruffner stated was \u201cthat the Board\u2019s position\u201d is that defendants are in violation of the statute by \u201crepresenting and holding themselves out to the public as having engineering expertise\u201d and by \u201coffering to practice engineering by using the title \u2018engineer\u2019 in dealings with the public.\u201d This affidavit and plaintiff\u2019s other material state only conclusions to be drawn and do not raise a genuine issue of fact. A summary judgment is proper where the controversy is not as to the facts disclosed by the evidence, but rather as to the legal significance of those facts. Blades v. City of Raleigh, 280 N.C. 531, 187 S.E. 2d 35 (1972). A summary judgment may be proper even where based in part upon the affidavits of the movant and witnesses for the movant where there are only latent doubts as to the credibility of the affiants. Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976).\nWe find that the trial court properly granted a summary judgment and correctly concluded as a matter of law th$t the mere use of the term \u201cCustomer Engineer\u201d on business cards and in a newspaper article does not constitute the offering to practice engineering or the representation of professional engineering status or expertise in violation of Chapter 89C-2.\nGiven our construction of the scope of the statute, we need not determine whether the usage of the term \u201ccustomer engineer\u201d falls within any of the exemptions contained in G.S. 89C-25(7)-(9). We think a reading of those sections will reinforce our interpretation of the Legislature\u2019s intent to limit the scope of Chapter 89C to representations, whether external or internal, of professional status or expertise, and that were the exempting provisions in issue, all would probably apply to the usage by the defendants.\nGiven our construction of the statute, we also need not pass on defendants\u2019 constitutional objections.\nThe judgment is\nAffirmed.\nJudges Morris and Arnold concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "Attorney General Edmisten by Assistant Attorney General James E. Magner, Jr.; Bailey, Dixon, Wooten, McDonald & Fountain by Wright T. Dixon, Jr., and Ralph McDonald for plaintiff appellant.", "Manning, Fulton & Skinner by Howard E. Manning; International Business Machines Attorneys Howard G. Ziff and Edward T. Buhl for defendant appellees." ], "corrections": "", "head_matter": "NORTH CAROLINA STATE BOARD OF REGISTRATION FOR PROFESSIONAL ENGINEERS AND LAND SURVEYORS v. INTERNATIONAL BUSINESS MACHINES CORPORATION and KENNETH M. FURR\nNo. 7610SC454\n(Filed 15 December 1976)\n1. Professions and Occupations\u2014 \u201cCustomer Engineer\u201d \u2014 repairer of business machines \u2014 use of term not prohibited\nUse of the term \u201cCustomer Engineer\u201d by defendant to refer to its employees who install, maintain and repair its business machines is not a violation of G.S. 89C-2 and G.S. 89C-23 which prohibit the practice or offer to practice engineering without proper registration.\n2. Professions and Occupations \u2014 board regulating practice of professional engineering \u2014 title of \u201cengineer\u201d \u2014 limitation of use\nG.S. 89C-2 and 89C-23, statutes regulating the practice of professional engineering, authorize the plaintiff to prohibit only those uses of the title \u201cengineer\u201d which imply or represent professional engineering status or expertise.\n3. Professions and Occupations\u2014 use of title \u201cengineer\u201d \u2014 limitation of use improper\nPlaintiff\u2019s argument that G.S. 89C authorizes it to prohibit all external uses of the word \u201cengineer\u201d as opposed to uses within a business, organization or government is without merit.\n4. Professions and Occupations \u2014 \u201cCustomer Engineer\u201d \u2014 use of title not practicing of engineering\nIn an action to enjoin defendant from practicing engineering and from using the title \u201cCustomer Engineer\u201d on calling cards and in communications with the general public, the trial court properly granted summary judgment for defendant and correctly concluded as a matter of law that the mere use of the term \u201cCustomer Engineer\u201d on business cards and in a newspaper article did not constitute the offering to practice engineering or the representation of professional engineering status or expertise in violation of G.S. 89C-2.\nAppeal by plaintiff from Bailey, Judge. Judgment entered 30 December 1975 in Superior Court, Wake County. Heard in the Court of Appeals 13 October 1976.\nThe North Carolina State Board of Registration for Professional Engineers and Land Surveyors (hereinafter Board) instituted this civil action in February 1975 under Chapter 89 of the General Statutes of North Carolina to enjoin International Business Machines Corporation (hereinafter IBM) and Kenneth M. Furr, an IBM employee, from practicing engineering and\n\u201cfrom using the titles \u2018customer engineer\u2019, \u2018engineer\u2019, or \u2018engineering\u2019 on calling cards and in communications with the general public, and from making any other representation that IBM employees, who are not registered or qualified under Chapter 89 of the General Statutes, are engineers.\u201d\nThe Board alleged that the defendant Furr and others, who are employed by IBM to install, maintain, and repair the business machines which it manufactures, are not registered engineers under Chapter 89. The Board further alleged that these employees are designated by IBM as \u201ccustomer engineers\u201d; that they work on premises other than those of IBM; and that they use calling cards bearing the employee\u2019s name and the title \u201ccustomer engineer.\u201d The Board alleged that the use of this card in conjunction with the performance of services at facilities other than those of IBM is a practice which violates Chapter 89 in that it constitutes a representation and holding out that such unlicensed employees perform engineering services. The Board also alleged an additional unlawful representation in violation of Chapter 89 by defendant Furr. The basis for this allegation was an article published in the Greensboro Daily News, a newspaper of general circulation in that area, which reported Furr\u2019s candidacy as a Republican for a seat in the General Assembly and which described him as a \u201ccomputer customer engineer.\u201d\nIn their answer defendants admitted that \u201ccustomer engineers\u201d installed, maintained, and repaired business machines and systems and that the company furnished these employees with calling cards bearing the name of the employee, the title \u201ccustomer engineer,\u201d and the business address and telephone number of the employee. Defendants contended that Chapter 89 regulated the practice of professional engineering and did not\n\u201cprohibit the use of the term \u2018engineer\u2019 or the practice of engineering where the term and the practice does not involve \u2018professional\u2019 engineering or the practice of \u2018professional\u2019 engineering as defined in the Statute.\u201d\nDefendants further contended that the use of the term \u201ccustomer engineer\u201d falls within exceptions in the statute. Defendants have not contended that the State may not constitutionally regulate the practice of professional engineering. They do contend that if the statute were construed to prohibit the use of terms which do not convey a representation of professional engineering expertise, it violated Article I, Sections 1, 19 and 34 of the North Carolina Constitution and Article I, Section 8, Clause 3 and the First and Fourteenth Amendments of the Constitution of the United States. Defendants also counterclaimed for an injunction prohibiting the Board from interfering with their use of the word \u201cengineer\u201d when not modified by the word professional.\nAfter the pleadings were filed, Chapter 89 was amended and rewritten by Session Law 1975, c. 681, s. 1, effective 19 June 1975. Amended pleadings were filed to conform to the new statute, Chapter 89C.\nOn 19 September 1975, defendants moved for a summary judgment. Memoranda of law, exhibits and affidavits were filed in support of and in opposition to the motion. After hearing, the court entered summary judgment for defendants on both claim and counterclaim concluding that defendants were not engaged in the practice of professional engineering; that their activities and accompanying use of the term \u201ccustomer engineer\u201d were exempt under the statute; and that the term \u201cengineer\u201d is a generic term with many uses and variations which do not represent a danger to the public and which the Board is not authorized to pre-empt by Chapter 89C. Plaintiff appeals.\nAttorney General Edmisten by Assistant Attorney General James E. Magner, Jr.; Bailey, Dixon, Wooten, McDonald & Fountain by Wright T. Dixon, Jr., and Ralph McDonald for plaintiff appellant.\nManning, Fulton & Skinner by Howard E. Manning; International Business Machines Attorneys Howard G. Ziff and Edward T. Buhl for defendant appellees." }, "file_name": "0599-01", "first_page_order": 627, "last_page_order": 636 }