Author: LegalEase Solutions
You have asked us to determine what liability both legal and administrative, that a California licensed architect can face for stamping his seal on plans that were not prepared under his supervision. Specifically you would like to know if the architect may be legally liable and/or liable for administrative penalties by the California Architects Board, or other state agency. You would also like to know what defenses, if any, that may be raised by the architect.
A California-licensed architect placed his stamp on a set of plans for construction of a condominium development. He did not prepare the plans nor supervise the preparation of the plans. The plans were prepared by designers who are not licensed architects. The plans were subsequently determined to be defective and were found to be in violation of the building code and are not able to be used to construct the development. Eventually, the plans were redone by others at great cost and the project has been severely delayed as a result.
SUMMARY OF FINDINGS
- Legally, the architect may be sued for negligence (if injury proved) and an injunction may be granted. Administratively, the architect’s license may be revoked or suspended and/or penalties imposed up to $5000.
- The architect is liable for administrative penalties by the CAB.
- The architect’s license can be charged with violation. The CAB or anyone else can file a written complaint with the Board to initiate action and have the license suspended or revoked.
- The defenses that the architect may assert are summarized below:
- Lack of circumstantial evidence to support charges that he did not supervise the preparation of the plans
- Lack of intent on the architect’s behalf to defraud or deceive someone.
- The act in question being a single act of demeanor or misconduct.
- Penalty of revocation or suspension of license being too harsh in view of the misconduct.
- Architect was not entirely unfamiliar with the plans.
- THE LAWFUL PRACTICE OF ARCHITECTURE
An architect is a person who is licensed to practice architecture (Cal. Bus. & Prof. Code Sec 5500). The practice of architecture being a profession or calling is governed by its own set of rules and regulations and is enforced by its own set of governing body called the State Board of Architecture. In the State of California the profession of architecture is governed by the California Business and Professions Code.
As such, for the lawful practice of architecture a person is required to obtain a license to practice architecture. This license is subject to the practice of architecture in conformation with the sections of the California Business and Professions Code (“Code”), governing architecture. Any violation of the requirements can mean suspension or revocation of the license by the issuing authority and also deterring and penalizing action by the jurisdictional courts.
With a few exceptions laid down in the Code, only licensed architects are lawfully allowed to practice architecture in the State of California. The exceptions are contained in Section 5537:
Section 5537, When plans and drawings by uncertificated persons permitted
(a) This chapter does not prohibit any person from preparing plans, drawings, or specifications for any of the following:
(1) Single-family dwellings of woodframe construction not more than two stories and basement in height.
(2) Multiple dwellings containing no more than four dwelling units of woodframe construction not more than two stories and basement in height. However, this paragraph shall not be construed as allowing an unlicensed person to design multiple clusters of up to four dwelling units each to form apartment or condominium complexes where the total exceeds four units on any lawfully divided lot.
(3) Garages or other structures appurtenant to buildings described under subdivision (a), of woodframe construction not more than two stories and basement in height.
(4) Agricultural and ranch buildings of woodframe construction, unless the building official having jurisdiction deems that an undue risk to the public health, safety, or welfare is involved.
(b) If any portion of any structure exempted by this section deviates from substantial compliance with conventional framing requirements for woodframe construction found in the most recent edition of Title 24 of the California Code of Regulations or tables of limitation for woodframe construction, as defined by the applicable building code duly adopted by the local jurisdiction or the state, the building official having jurisdiction shall require the preparation of plans, drawings, specifications, or calculations for that portion by, or under the responsible control of, a licensed architect or registered engineer. The documents for that portion shall bear the stamp and signature of the licensee who is responsible for their preparation. Substantial compliance for purposes of this section is not intended to restrict the ability of the building officials to approve plans pursuant to existing law and is only intended to clarify the intent of Chapter 405 of the Statutes of 1985.
The Chapter also allows licensed architects to form partnerships with unlicensed persons in order to avail the business talent of an unlicensed person who may be not licensed to practice architecture but has the business skills to successfully run an architectural firm.
- 5535.2. Partnership with uncertificated persons; Names usedThis chapter does not prevent an architect from forming a partnership with persons who are not architects but the name of the architect shall appear as the architect on all instruments of service and in no case may the other members of the partnership be designated as architects.
- DUTY OF REASONABLE CONTROL
The exception in Section 5535.2, however does not eliminate the architect’s responsibility to reasonably control the practice of architecture so rendered. Reasonable control is defined as “that amount of control over the content of technical submissions during their preparation that is ordinarily exercised by architects applying the required professional standard of care.” Sec 5535.1.
In Joseph v. Drew, 36 Cal.2d 575 (Cal. 1950), the court held, in construing the above sections of Code, that, while no obstacle is interposed to the association of a licensed architect and an uncertified person in a partnership for conducting a legitimate business, the policy is plainly articulated that the partnership entity may not be used as a facade behind which architectural services may be offered and furnished by unlicensed persons without compliance with the statutory requirements. Hence, while such a partnership is not required to notify its clients in writing that a particular member is unlicensed, a client contracting with the partnership for architectural services nevertheless has the right to expect those services will be performed by the licensed member, or at least under his responsible direction, and that “in no case” will the other members of the partnership be designated as architects.
In Palmer v. Brown, 127 Cal. App. 2d 44 (Cal. Ct. App. 1954) the Court opined that when an architectural work is directed, supervised, checked and approved by a licensed firm member, it may well be considered as the product of the firm whose professional services a client has engaged. That is, where the work performed by an unlicensed member of the firm is done under the responsible direction and supervision of a licensed architect, the dual intent of the Legislature to protect the public from the injurious consequences of unskilled work and at the same time to permit a partnership for the practice of architecture between an architect and an unlicensed person, may be served. See Meyer & Holler v. Bowman, 121 Cal.App. 112, 116 (Cal. Ct. App. 1932); American Trust Co. v. Coryell, 3 Cal.2d 151, 154 (Cal. 1935).
When the negligent acts or omissions of two or more persons, whether committed independently or in the course of jointly directed conduct, contribute concurrently and as proximate causes to the injury of another, each of such persons is liable, regardless of the relative degree of the contribution. Palmer, Id..
Thus, even though unlicensed persons can draw up plans and drawings in the practice of architecture, such planning or drawing should nevertheless be done under the responsible control of a licensed architect. Failing to meet this requirement results in legal liability for both the unlicensed person and the licensed architect’s practice.
Disciplinary proceedings may be initiated against a licensed architect, when the architect fails to exert responsible control over the plans and drawings of a non-architect who he is in partnership with. As specified in Section 5578 of the Code, “Grounds for disciplinary action; Practice in violation of chapter. The fact that the holder of a license is practicing in violation of the provisions of this chapter constitutes a ground for disciplinary action.”
- ADMINISTRATIVE LIABILITY FOR STAMPING PLANS OF OTHERS
Section 5582 of the Code imposes liability on a licensed architect if the architect stamps plans not made under his reasonable control and supervision as this may amount to his practicing architecture in violation of the chapter. Section 5582 refers such conduct by a licensed architect as “aiding and abetting” an unlicensed person. Section 5582 reads:
Aiding and abetting unlicensed person. The fact that the holder of a license has aided or abetted in the practice of architecture any person not authorized to practice architecture under the provisions of this chapter, constitutes a ground for disciplinary action.
- AIDING AND ABETTING DEFINED
Title 16 of the California Code of Regulations (CCR) further elaborates as to what constitutes aiding and abetting.
- 151. Aiding and Abetting(a) For purposes of Sections 5582 and 5582.1 of the code, aiding and abetting takes place when a California licensed architect signs any instrument of service which has been prepared by any person who is not:(1) a California licensed architect or civil engineer or structural engineer, or
(2) a subordinate employee under his/her immediate and responsible direction, or
(3) an individual, who is associated by written agreement with the architect and who is under the architect’s immediate and responsible direction as described in subsection (b) of this section.
(b) The requirements of “immediate and responsible direction” as used in this section shall be deemed to be satisfied when the architect:
(1) instructs the person described in subsection (a) of this section, in the preparation of instruments of service, and
(2) the architect has exercised the same judgment and responsibility in reviewing all stages of the design documents and other phases of the work as required by law, and which would normally be exercised if he/she personally performed the required tasks.
The architect in the instant case stamped plans made by an unlicensed architect, with whom he entered into a written agreement with. There is no evidence that the licensed architect supervised the preparation of the plans at any stage. While the Agreement of Association between the architect and the unlicensed designers provided for the architect visiting the project site periodically, there is no reference to the architect’s duty to supervise the preparation of the plans. Hence, the architect has indulged in dishonest practice by knowingly stamping an unlicensed persons plans as his own and clearly falls in the net of abetting and aiding an unlicensed person.
Section 5582.1 of the Code states that stamping of plans by an architect which he knows to have not been prepared by himself or under his reasonable supervision or control is also a ground for disciplinary action.
- 5582.1. Signing plans prepared by others; Use of name to evade statute
(a) The fact that the holder of a license has affixed his or her signature to plans, drawings, specifications, or other instruments of service which have not been prepared by him or her , or under his or her responsible control, constitutes a ground for disciplinary action.
(b) The fact that the holder of a license has permitted his or her name to be used for the purpose of assisting any person to evade the provisions of this chapter constitutes a ground for disciplinary action.
The act of the architect in the given case may also fall under the purview of §§ 5583, 5584, 5585, of the Code, if his intentional signing and stamping of others plans can be shown as fraud or deceit, negligence or recklessness, and the third or other party acts on the belief that the plans have been prepared by the architect as his stamp is shown on the plans. As such, the third parties who so acted on this belief can bring an action against the architect for damages incurred as a result of reliance on the plans as it amounts to deceit or fraud. Disciplinary action under the Chapter may also be taken. Sections 5583-5585 read:
- 5583. Fraud or deceit in practice
The fact that, in the practice of architecture, the holder of a license has been guilty of fraud or deceit constitutes a ground for disciplinary action.
- 5584. Negligence or willful misconduct in practiceThe fact that, in the practice of architecture, the holder of a license has been guilty of negligence or willful misconduct constitutes a ground for disciplinary action.
- 5585. Incompetency or recklessness in practice
The fact that in the practice of architecture the holder of a license has been guilty of incompetency or recklessness constitutes a ground for disciplinary action.
Any of the above practices would amount to dishonest practices in the profession of architecture and are as such liable to disciplinary proceedings. Activity sufficient to warrant discipline would have to be found with such definiteness and certainty that wrongdoing would be apparent to all, Coffman v. California State Board of Architectural Examiners, 130 Cal App 343, (Cal. Ct. App. 1933). In the instant case, actions speak louder than words, as the condominium development was clearly poorly planned without supervision of the architect, which has cost the developer dearly both in time and money.
If any of the grounds for disciplinary action are present, the Board upon its own motion or on written complaint by any person can take disciplinary action against the defaulting architect. Section 5560 provides:
The board may upon its own motion, and shall upon the verified complaint in writing of any person, investigate the actions of any architect and may temporarily suspend or permanently revoke, the license of any architect who is guilty of, or commits one or more of, the acts or omissions constituting grounds for disciplinary action under this chapter.
Pursuant to such disciplinary proceedings, the Board may take a decision which may include one or more of the following actions, as promulgated in section 5565,
The decision may:
(a) Provide for the immediate complete suspension by the holder of the license of all operations as an architect during the period fixed by the decision.
(b) Permit the holder of the license to complete any or all contracts for the performance of architectural services shown by evidence taken at the hearing to be then unfinished.
(c) Impose upon the holder of the license compliance with any specific conditions as may be just in connection with his or her operations as an architect disclosed at the hearing, and may further provide that until those conditions are complied with no application for restoration of the suspended or revoked license shall be accepted by the board.
(d) Assess a fine not in excess of five thousand dollars ($5,000) against the holder of a license for any of the causes specified in Section 5577. A fine may be assessed in lieu of, or in addition to, a suspension or revocation. All fines collected pursuant to this subdivision shall be deposited to the credit of the California Architects Board Fund.
In addition to the stated actions, the Board may also apply to the superior court of the county in which the act had occurred to issue an injunction against the defaulting architect. Section 5527 provides,
Whenever any person has engaged in or is about to engage in any act or practice which constitutes or which will constitute an offense against this chapter, the superior court of the county in which the offense has occurred or is about to occur, on application of the board, may issue an injunction or other appropriate order restraining such act or practice.
- LIABILITY TO THIRD PARTIES: PRIVITY OF CONTRACT
“The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for negligence. Gagne v. Bertran, 43 Cal.2d 481, 489 (Cal. 1954)
While it appears that the developer would have remedies in tort against the architect, the architect may oppose any such action with the plea of privity of contract, possibly depriving the developer of damages. The history of legal action against architects shows an inclination by the courts not to award damages against architects in cases brought by third parties as architects are not held to have not been liable to them for duty of reasonable care and supervision. But lately courts have set aside this defense to make architects liable to third parties as well if they do not observe a reasonable degree of care and supervision as is required of them due to their being in the profession of architecture.
The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm. California courts have imposed liability for the negligent representation of an architect who was admittedly responsible for overseeing the work of testing laboratories and for supervising construction to assure conformity with specifications. US v. Rogers, 161 F. Supp. 132 (D. Cal. 1958).
A plaintiff who sues based on architect or engineer malpractice may seek damages for economic loss, physical harm, mental anguish, medical expenses, lost wages, and so forth. If appropriate, punitive damages may also be requested.
If various factors are present, an architect may be held liable to a third party for economic loss. Cooper v. Jevne, 128 Cal. Rptr. 724 (Cal. Ct. App. 1976). One case involved a contractor who sued an architect to recover economic loss alleging negligent drawing of plans related to the structure’s foundation.
If such action is initiated against the architect, the following defenses are available:
- The right of a person to practice his profession, once conferred, is highly valuable and cannot be taken away without sufficient proof. Coffman v. California State Board of Architectural Examiners, 130 Cal App 343, ( App. 1933).
- The legislature could not have intended to grant the board the power to revoke a license for a single dishonest act, since the statute referred to “practices,” and that, consequently, a single act could not be grounds for punishment. Kaeseberg v. Ricker 177 Ill App 527, (Ill. App. Ct. 1913).
- No intent to defraud or deceive. Supra
- Architect was not entirely unfamiliar with the plans in question. Supra
- Plans were made under architect’s supervision. Supra
- One year suspension of architect’s license on grounds that he affixed his name and seal to plans and drawings not prepared by him, or under his responsible supervising control, was improper where testimony of only witnesses exculpated architect and there was no competent circumstantial evidence to support charges. Floyd v Florida State Board of Architecture, 290 So. 2d 494 (Fla. Dist. Ct. App. 1974)
- Lack of evidence to show absence of direct supervision by architect. Architect did not abet unauthorized practice of architecture by reviewing drawings prepared by trained draftsman, and architect’s sealing drawings was proper, since architect had “Direct professional knowledge and direct supervisory control” over drawings. State Bd. of Architects v. Clark, 114 App. 247, 689 A.2d 1247 (Md. App. 1997).
- At least belatedly, the architect attempted to comply with the law, since plans were taken to him for inspection and approval when they were nearing completion. The second paragraph of the Agreement of Association may hint towards the architect’s intent to supervise the work. Markel v Florida State Board of Architecture 268 So 2d 374, 58 ALR3d 538 (Fla. 1972).
- He took or was ready to take remedial action. Markel, Id.
The architect has clearly violated various sections of the California Business & Professions Code and may be subject to administrative liability including revocation of his license and be fined up to $5,000. The Code generally requires that only licensed architects practice architecture in California. Even if such licensed architects partner with or stamp the plans made by unlicensed persons, those plans should be prepared under the architect’s reasonable supervision and control. In the given case there is nothing to indicate that the architect exercised any control or supervision in the preparation of the stamped plans. As such, the architect is liable to disciplinary proceedings under the Chapter, whereby his license may be suspended or revoked and a fine be imposed. The board may apply to a court of law to issue an injunction against the architect, or if action is taken by a court of law against the architect, the Board may take such conviction as ground of revocation of license. Additionally, the architect may be liable under California tort law on the ground of negligence.