Bird v. Missouri Bd. of Architects

• Decision Date: 10 June 2008
• Docket Number: No. SC 88710.,SC 88710.
• Citation: 259 S.W.3d 516
• Parties: Bruce F. BIRD, P.E., Respondent, v. MISSOURI BOARD OF ARCHITECTS, PROFESSIONAL ENGINEERS, PROFESSIONAL LAND SURVEYORS AND LANDSCAPE ARCHITECTS, Appellant.
• Court: Missouri Supreme Court

259 S.W.3d 516

Bruce F. BIRD, P.E., Respondent, v. MISSOURI BOARD OF ARCHITECTS, PROFESSIONAL ENGINEERS, PROFESSIONAL LAND SURVEYORS AND LANDSCAPE ARCHITECTS, Appellant.

No. SC 88710.

Supreme Court of Missouri, En Banc.

June 10, 2008.

As Modified on Denial of Rehearing August 26, 2008.

Jeremiah W. (Jay) Nixon, Atty. Gen., Kathleen R. Robertson, Asst. Atty. Gen., Jefferson City, for Appellate.

John E. Taylor, Leawood, for Respondent.

MICHAEL A. WOLFF, Judge.

Introduction

Can a licensed professional engineer be disciplined for affixing his seal to building plans that were drafted in large part by a licensed architect whose work was not done under the engineer's "immediate personal supervision"?

The Missouri Board for Architects, Professional Engineers, and Professional Land Surveyors and Landscape Architects (the board) brought this disciplinary proceeding against Bruce Bird, a professional engineer, after Landmark Builders of Blue Springs hired Bird to complete plans and drawings for a commercial building project when the architect Landmark originally retained for the project refused to complete them. The architect's refusal was based upon Landmark's refusal to pay an additional fee for completing the drawings after the original plans were disapproved by the planning commission of Independence, where the project is located.

The board's case against Bird was based upon a reading of the licensing statute as requiring that the work that Bird signed and sealed be done by him or under his "immediate personal supervision." Bird did not supervise the prior work of the architect, whose work Bird reviewed and modified to submit the final plans. There is no contention that the plans Bird submitted were substandard. Because of the lack of supervision of the architect, however, the Administrative Hearing Commission (AHC) concluded that Bird was subject to discipline. Based upon the AHC's conclusion, the board suspended Bird's license for three years to be followed by a year of probation.

This appeal requires the Court to construe the statute and regulations under which the board disciplines professional engineers. The statute, section 327.411¹, requires an engineer to affix his or her personal seal "to all final documents ... prepared by the licensee, or under such licensee's personal supervision, and such licensee shall be held personally responsible for the contents of all such documents sealed by such licensee." The statute only allocates personal responsibility. It does not require that all work to which Bird affixed his seal be entirely the original work of the engineer or his supervised subordinates. Specifically, it does not require that the licensee personally supervise a co-licensee such as an architect.

Professional engineering is one of more than 240 occupations licensed and regulated by approximately 38 boards consisting principally of members of the licensed occupations. The late Walter Gellhorn, one of the architects of modern administrative law, wrote more than 50 years ago:

"Occupational licensing ... is — or rather should be — a prophylactic measure, intended to save the public from being victimized. It is not — or, rather, it should not be allowed to continue to be — an economic weapon intended to strengthen the licensees."²

Occupational licensing boards deserve deference in cases that require technical expertise in their respective fields. But this is not such a case. The resolution of this case depends on the interpretation of the licensing statute — a question that is not committed to the discretion of the licensing board, nor dependent on its expertise, but is a question for the courts ultimately to resolve on judicial review when called upon to do so.

For reasons that follow, the disciplinary decision is reversed.

Facts

Landmark Builders of Blue Springs, Inc. entered a contract in April 2001 with architect Allen McInnis under which McInnis's architectural firm agreed to design "Cardinal Woods Commercial", a warehouse and office for Landmark located in the city of Independence.

McInnis submitted a set of drawings to Landmark called "Final Site Plan and Grading Plan Lot 1, Cardinal Woods Commercial," which included site plan drawings, landscape drawings, architectural drawings and structural drawings. McInnis did not sign the plans or affix his seal to the drawings.

After reviewing the proposed plans, Landmark submitted McInnis's unsealed drawings to the City of Independence Planning Commission. The planning commission rejected the plans and informed Landmark of the modifications that must be made in order to secure the planning commission's approval.

Landmark requested that McInnis modify the plans to meet the requirements of the planning commission. McInnis made the necessary modifications, and Landmark's president learned that the planning commission approved the revised plans but would need construction drawings. McInnis sent Landmark an invoice for $17,000, an extra fee because such modifications were not factored into the initial contract price. McInnis refused to sign and seal the plans until Landmark paid for the modifications.

Landmark refused to pay McInnis the additional fee. Landmark instead contacted Bruce Bird's engineering firm to complete the original plans, get final city approval and serve as the engineer of record on the project. Bird made the modifications necessary to secure the planning commission's approval, including structural calculations for the building, computations for storm water runoff and detention, revisions to roof structure and relocation of a doorway. When Bird had completed the necessary modifications, he signed and affixed his engineer's seal to each page of the plans. Landmark submitted the plans bearing Bird's seal to the planning commission.

McInnis informed the planning commission in May 2002 that he had not authorized the use of his drawings by either Landmark or Bird. McInnis stated that he planned to sue Landmark and that disciplinary proceedings against Bird concerning this matter were pending. McInnis also filed a police report in which he alleged that his drawings had been stolen.

When Bird became aware of McInnis's complaints, he contacted the planning commission and requested permission to withdraw the plans for Cardinal Woods Commercial.

Procedural History

The board filed a complaint in May 2003 against Bird with the AHC alleging that by signing and affixing his seal to McInnis's drawings, Bird had violated board regulations 4 CSR 30-3.030(7)³ and 4 CSR 30-13.010⁴, which subject Bird to discipline under section 327.441.2(6).⁵

After a hearing, the commission found that Bird had violated board regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010 and authorized discipline under section 327.441.2(6). Following the AHC's decision, the board imposed a three-year suspension of Bird's engineering license followed by one year of probation.

Bird timely filed a petition for review and a motion to stay enforcement of the board's order in the Cole County Circuit Court. The circuit court granted the stay. After a review of the administrative record, the circuit court concluded that the AHC's decision to authorize discipline by the board was "unlawful, unreasonable and unsupported by substantial and competent evidence on the record as a whole." The circuit court then remanded the cause to the commission for rehearing and findings consistent with the court's decision.

On appeal, the court of appeals found that the petition for review Bird filed in the circuit court was insufficient and dismissed the appeal. This Court granted transfer and has jurisdiction. Mo. Const. Art. V, sec. 10. The circuit court's stay of the disciplinary order has remained in effect during the pendency of this appeal.

Judicial Review

Because the court of appeals dismissed Bird's appeal, it is necessary to consider whether Bird's petition filed in the circuit court was adequate to invoke judicial review.

At the outset, it should be noted that the court of appeals' focus on the petition for review is misplaced because the petition plays little or no role in the appellate court process. When a circuit court's judgment is appealed, the appellate court does not review the circuit court's decision, but rather the agency decision, that is, the AHC's findings and conclusions, and the board's discipline.⁶ Tendai v. Missouri State Bd. of Registration for Healing Arts, 161 S.W.3d 358, 365 (Mo. banc 2005). Accordingly, the circuit court's judgment — and of course the petition for review that began the circuit court process — is of no particular interest when the matter is appealed either to the court of appeals or to this Court.⁷

Nonetheless, the court of appeals ruled that the circuit court lacked "jurisdiction" over the case because Bird's petition for review did not raise specific issues. Thus the court of appeals said, it had nothing it could review. Accordingly, the court of appeals dismissed the appeal and remanded the case to the circuit court "with directions to dismiss Bird's petition for judicial review of the AHC's decision."

The Petition Was Sufficient

Neither the statutes nor the civil rules set standards for what a petition for review must contain. The fact pleading specified for civil cases by Rule 55.05 is inapplicable. Judicial review usually consists of questions of law,⁸ as specified by section 536.140.2, which describes the scope of judicial review for cases such as this disciplinary matter: "[T]he court's inquiry may extend to a determination of whether the action of the agency is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the agency, is unsupported by competent and substantial evidence upon the whole record, is, for any other reason, unauthorized by law, is made upon unlawful procedure or without a fair trial, is arbitrary, capricious or unreasonable, or involves an abuse of discretion."...