State Board of Architects v. Clark

OPINION SALMON, Judge. The State Board of Architects (The Board or appellant) held a hearing on January 25, 1995, concerning James R. Clark (appellee), an architect. In a Memorandum and Order dated February 22, 1995, the Board found that Clark aided and abetted R. Thomas Vincent, an unauthorized person, to practice architecture and that Clark knowingly violated a provision of the Code of Ethics by signing and sealing drawings for which he did not have direct professional knowledge and direct supervisory control. 1 The Board suspended Clark’s license to practice architecture for two years and ordered him to pay a $400 penalty. ²⁵⁰ Clark appealed to the Circuit Court for Kent County. After a hearing before Judge J. Frederick Price, the court reversed the Board’s decision in a Memorandum and Order dated January 23, 1996.

The Board timely appealed and raises the following questions, which we have rephrased: 1. Was the Board wrong as a matter of law in finding that Clark aided and abetted the unlicensed practice of architecture? 2. Was the Board wrong as a matter of law in finding that Clark signed and sealed drawings for which he did not have direct professional knowledge and direct supervisory control? 2 I. STANDARD OF REVIEW In Ahalt v. Montgomery County, 113 Md.App. 14, 20-22 , 686 A.2d 683 (1996), we said: Our role in reviewing an administrative decision is “precisely the same as that of the circuit court.” Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-304 , 641 A.2d 899 (1994). Like the circuit court, we must review the administrative decision itself. “Judicial review of administrative agency action is narrow.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 576 , 650 A.2d 226 (1994).

In reviewing the Board’s decision, this Court must not engage in judicial fact-finding. Nor may we supply factual findings that were not made by ²⁵¹ the Board. Moreover, this Court may not uphold the agency’s decision “unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” United Parcel Serv., Inc., 336 Md. at 577 , 650 A.2d 226 (quoting United Steelworkers v. Beth. Steel, 298 Md. 665 , 472 A.2d 62 (1984)).

Factual findings made by an agency are binding upon a reviewing court, so long as they are supported by substantial evidence. Substantial evidence has been defined as more than a scintilla of evidence. Further, the inferences reasonably to be drawn from the facts are also left to the Board. “ ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.’ ” Snowden, 224 Md. at 448, 168 A.2d 390 (citations omitted).

Moreover, an appellate court must “review the agency’s decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity.” Baltimore Lutheran High Sch. Ass’n v. Employment Sec. Admin., 302 Md. 649, 662-663 , 490 A.2d 701 (1985). In contrast to findings of fact, however, an agency’s conclusions of law are not entitled to deference. The Board’s decision is not lawful if it is arbitrary, illegal, or capricious.

As we said in Mortimer v. Howard Research, 83 Md.App. 432, 441, 575 A.2d 750 (1989), a decision is “not in accordance with law” when it is arbitrary, illegal or capricious. In making a determination of whether the [agency] decision is arbitrary, illegal or capricious, the reviewing court must decide whether the question before the agency was fairly debatable. An issue is fairly debatable if reasonable persons could have reached a different conclusion on the evidence, and if so, a reviewing court may not substitute its judgment for that of the administrative agency. The fairly debatable test is analogous to the clearly erroneous standard under Rule 8-131(c) and a decision is fairly debatable if it is sup ²⁵² ported by substantial evidence on the record taken as a whole.

(Citations omitted.) II. FACTS 3 James R. Clark (Clark) has been licensed as an architect in Maryland since July 24, 1991. He is also licensed as an architect in Massachusetts, Delaware, and Virginia. Sometime in 1990 or 1991, Dr. Harry Ross, a resident of Chestertown, Maryland, contacted R. Thomas Vincent (Vincent), who was not licensed as an architect but who was a trained draftsman and the manager of a lumber mill.

Dr. Ross asked that Vincent “draw up plans” for a second story addition to an office building owned by him in Chestertown, Maryland (hereinafter the Dr. Ross building). Afterward, he also asked Vincent to draw up plans for a building to house a TCBY yogurt store, for which he had obtained a franchise. A. The Dr. Ross Building Vincent prepared a hand drawing, on November 10, 1991, of the floor plans for a second story addition to the Dr. Ross building. On December 15, 1991, with the assistance of two other draftsmen, Vincent prepared an additional hand drawing of the floor plans as well as an “end view” drawing and an “elevation” drawing of the front and rear of the structure.

Vincent testified that the purpose of the drawings was to “prepare a building materials estimate” from which he hoped to secure Dr. Ross’s business (i.e., he hoped Dr. Ross would purchase building materials from him). At the time that Vincent dated and initialed the drawings, Clark had no knowledge of Vincent’s actions. Vincent’s drawings for the Dr. Ross building were submitted to the Town Manager of Chestertown, Mr. William Inger-sol, for a permit. The drawings were also provided to the Gorsuch Construction Company for use in the construction of ²⁵³ the addition.

The drawings were, at the request of Mr. Ingersol, also submitted to the State Fire Marshall for review. The Office of the State Fire Marshall, in a letter to Vincent, required six changes to the plans from a “fire protection standpoint.” In response, Vincent prepared an addendum to the drawings. No architect, including Clark, was involved in this revision. The revisions were submitted to, and approved by, the State Fire Marshall.

On October 29, 1992, the Town of Chestertown approved a building permit for construction of a second story addition to the Dr. Ross building. B. The TCBY Project Vincent advised Dr. Ross that he could prepare a “sketch” for the “shell building” of a TCBY store but that he could not prepare drawings to secure a building permit. On February 1, 1993, Vincent prepared a “rough” pencil sketch for the shell building by copying a floor plan previously supplied by TCBY and “roughing out some things.” No architect, including Clark, had any involvement with or knowledge of the drawing at the time of its preparation. Vincent’s drawing was attached to the building permit application submitted to the Town of Chestertown by Dr. Ross.

A permit for construction of a 20’ x 70’ building to be used for a TCBY store was issued on April 27,1993. C. Vincent’s Contact with Clark In the late spring or early summer of 1993, Mr. Ingersol, the Town Manager who had previously approved the permits for the Dr. Ross building addition and the TCBY project, told Vincent that due to a new building code all the drawings needed to be brought “up to code.” Vincent contacted Clark and asked if he would sign and seal the drawings he had prepared for the TCBY project. Clark testified, in regard to his initial involvement with Vincent, as follows: Well, Tom Vincent called me up — -I didn’t know Tom Vincent from Adam — -and asked me if I’d seal a drawing for him, and I said, we don’t do that.... I got to talking to ²⁵⁴ him, and he was referred to me by one of my best clients, Carl Williams ....

I thought ... I owe a lot to Carl Williams and I think I’ll [] do this for him, but I — you know, I obviously was thinking about just redrawing his whole project. He brought it over to me, I looked at it, and I thought, hey, this guy has got a little bit on the ball, and I just — I, I had my Mylar out and I was ready to put the title block on it and start [] over, but he had some things on there that were pretty good____ So I just went over the whole drawing and re-drew it as I thought necessary and it was done. Clark stated that he “did a thorough code check” and reviewed the drawing “every way you’re supposed to review it.” After drawing over certain portions of Vincent’s work and determining that the drawing was correct, Clark again stamped the drawings with the stamp issued to him by the Board and signed the drawings.

Vincent paid Clark $200 for the services he provided with respect to the TCBY project. When asked whether he had direct professional knowledge or supervisory control over the creation of the TCBY drawing, Clark responded: If I move over the top of this drawing, it’s mine. I looked at it ... I thought it was right ...

I checked all the [ ] structure in it, and there was very little structure to check because it’s [ ] a trussed building. Approximately six weeks later, in June 1993, Vincent contacted Clark regarding the drawings of the Dr. Ross building addition. He advised Clark that the drawings needed to be “checked” in order to bring the building up to code. After reviewing the drawings and making several notations and corrections, Clark again stamped the drawings with the stamp issued to him by the Board, signed his name across the stamp, and dated each drawing June 17,1993.

According to Vincent’s testimony before the Board, the following changes to the Dr. Ross building addition, which was already under construction, were made as a result of Clark’s input: ²⁵⁵ [T]he support under the corridor on the second floor was not spaced properly. He changed some spanning dimensions, added ... the fire walls in the stairway, moved the handrail heights ... and the handrail at the ... end stairway. In order to follow Clark’s specifications, work that had already taken place had to be “ripped out and rearranged.” At the administrative hearing, Clark testified that he viewed his actions regarding the Dr. Ross building as the preparation of a “code report,” and that he sealed the drawings as he would have “sealed” a code report in letter form. Vincent paid Clark $200 for the services he provided with respect to the Dr. Ross building addition.

Upon review of the aforementioned undisputed facts, the Board, without any explanatory analysis, made the following conclusions of law: 1. James Clark aided and abetted R. Thomas Vincent, an unauthorized person, to practice architecture in violation of the Business and Occupations and Professions Article, § 3-311(a)(l)(vi), Annotated Code of Maryland. 2. James Clark knowingly violated a provision of the Code of Ethics adopted by the State Board of Architects in violation of Business and Occupations and Professions Article, § 3-311(a)(l)(iv), Annotated Code of Maryland. 4 3. James Clark signed and sealed drawings for which he did not have direct professional knowledge and direct supervisory control in violation of COMAR 09.21.01.05E(1).

III

DISCUSSION Issue 1: Was the Board wrong as a matter of law in finding that Clark aided and abetted the unlicensed practice of architecture? ²⁵⁶ Section 3-311(a)(l)(vi) of the Business Occupations and Professions Article states that the Board may suspend or revoke an architect’s license for aiding or abetting an unauthorized person to practice architecture. Md.Code Ann., Bus. Occ. & Prof. § 3-311(a)(l)(vi) (1995 RepLVoL). In Anello v. State, 201 Md. 164, 168 , 93 A.2d 71 (1952), the Court of Appeals defined the terms “aider” and “abettor”: The legal definition of the word “aider” is not different from its meaning in common parlance.

It means one who assists, supports or supplements the efforts of another. The word “abettor” means in law one who instigates, advises or encourages the commission of a crime____ To be an aider or abettor, it is not essential that there be prearranged concert of action, although, in the absence of such action, it is essential that one should in some way advocate or encourage the commission of the crime. See also 1 Charles E. Torcia, Wharton’s Criminal Law § 29, at 181 (15th ed. 1993) (“To ‘aid’ is to assist or help another. To ‘abet’ ... [i]n its legal sense ... means to encourage, advise, or instigate the commission of a crime.”).

The Board’s conclusion that Clark aided and abetted Vincent to practice architecture is not supported by substantial evidence because