Hopping v. Louisiana Horticulture Com'n

• Decision Date: 27 May 1987
• Docket Number: No. CA,CA
• Citation: 509 So.2d 751
• Parties: Michael HOPPING v. LOUISIANA HORTICULTURE COMMISSION. 86 0436.
• Court: Court of Appeal of Louisiana — District of US

Page 751

509 So.2d 751

Michael HOPPING v. LOUISIANA HORTICULTURE COMMISSION.

No. CA 86 0436.

Court of Appeal of Louisiana, First Circuit.

May 27, 1987.

Dissenting Opinion June 23, 1987.

Edward F. Glusman, Baton Rouge, for Michael Hopping.

Winston Riddick, Baton Rouge, for Louisiana Horticulture Com'n.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

ALFORD, Judge.

Plaintiff, Michael Hopping, filed a petition of suspensive appeal, judicial review, temporary restraining order, and injunctive relief relative to a decision of the Horticulture Commission of Louisiana (the Commission). The trial court affirmed the Commission's decision finding plaintiff in violation of Louisiana horticulture law. Plaintiff now appeals to this court and assigns errors alleging the evidence presented to the Commission did not support its findings of fact, the Commission used an unlawful procedure in obtaining information and thus violated his constitutional rights, the Commission refused to answer interrogatories or comply with his request to produce documents, the penalties imposed exceeded the Commission's authority, and the statutes violated by Mr. Hopping are unconstitutionally vague.

FACTS

The Commission received two complaints, dated July 30, 1984 and September 17, 1984, from Mr. Dennis Gail Abbey, coordinator of the Baton Rouge section, Louisiana chapter of the American Society of Landscape Architects. He apprised the Commission that Michael Hopping was engaged in landscape design at the Iberville Parish courthouse in Plaquemine, Louisiana, and that neither the plans nor specifications were stamped with the registration seal of a licensed landscape architect. Mr. Hopping had entered into an agreement with Bradley-Miremont and Associates, Architects and Engineers, and Forte and Tablada, Inc., Engineers, Architects and Planners, to provide "full and complete architectural landscaping services for the [Iberville Parish Courthouse], consisting of Plans, Specifications, Estimates, Supervision and Warranty Inspections." Although Mr. Hopping holds a valid landscape contractor's license, he has never been licensed as a landscape architect. He claims to have employed Mr. Chris Braud and Ms. Cynthia Cash, both of whom are licensed, and thus complied with the statute.

Two investigative hearings were held by the Commission on May 8, 1985 and June 11, 1985. The Commission then notified Mr. Hopping that he had violated then LSA-R.S. 37:1964(C) [now redesignated as LSA-R.S. 3:3804(C) ] by receiving fees and soliciting business in the regulated profession of landscape architecture without a license. The Commission issued several subpoenas duces tecum and conducted an adjudicatory hearing on September 20, 1985. Its pertinent findings of fact are as follows:

The Iberville Parish Police Jury contracted with Forte and Tablada and Bradley and Miremont to construct a new courthouse complex in Plaquemine, Louisiana. These two firms, through Bradley and Miremont, contracted with Michael Hopping to provide all landscape architectural drawings, plans, designs, specifications, supervision, and warranty of the landscape work for the Iberville Courthouse Building. Mr. Hopping contracted with Mr. Chris Braud and Ms. Cynthia Cash to provide the landscape architectural services. The specifications and design for the landscaping of the Iberville Courthouse Building was submitted by Mr. Hopping to Bradley-Miremont. Mr. Braud and Ms. Cash were self-employed individuals. They were not regular employees of Michael Hopping. Both were paid on an hourly basis by Mr. Hopping for the work that they actually performed. They did not receive a regular paycheck from Mr. Hopping. They did not receive wages from Mr. Hopping. No workmen's compensation, no FICA, and no income tax were withheld from the monies paid to them by Mr. Hopping. These two individuals paid income tax as self-employed persons and also paid social security taxes as self-employed persons.

REVIEW OF DECISION

Between August 13, 1982 and April 17, 1985, the pertinent time Mr. Hopping was engaged in this project, LSA-R.S. 37:1964(C) read:

No person shall receive fees, whether directly or indirectly, for engaging in a regulated profession, or advertise as engaged in a regulated profession, or solicit business in a regulated profession, unless the person holds a valid appropriate license issued by the commissioner, or has a regular employee who holds a valid appropriate license issued by the commissioner, or is employed by or is working under the direct supervision of a person who holds a valid appropriate license issued by the commissioner.

Based on its findings of fact, the Commission issued a written conclusion of law that Mr. Hopping was guilty of four violations of this statute, since then LSA-R.S. 37:1970(A) [now redesignated as LSA-R.S. 3:3810(A) ] provided that each day on which a violation occurs shall be considered a separate offense. Mr. Hopping had submitted invoices for which he received payments in four separate checks.

The general principle governing judicial review of administrative decisions is that, if the evidence as reasonably interpreted supports the determination of an administrative agency, its orders are accorded great weight and will not be reversed or modified in the absence of a clear showing that the administrative action is arbitrary and capricious. Summers v. Sutton, 428 So.2d 1121, 1129 (La.App. 1st Cir.1983).

Mr. Hopping testified at the adjudicatory hearing that he "did a site analysis and drew up some preliminary plans for the site." He also worked with George Francise, a landscape supervisor for Ascension Contractors, Inc., who answered "Mr. Hopping" in response to the question "[w]ho supervised or directed or gave instructions to you ..."?

LSA-R.S. 37:1968(E) and (F) [now redesignated as LSA-R.S. 3:3808(E) and (F) ] regulated separately the professions of landscape architect and landscape contractor. The former "may prepare and supervise the execution of plans, studies, surveys, specifications, and designs for the preservation, reclamation, or development of land areas, vegetation, hydrology, water features, and nonhabitable landscape features." A landscape contractor "may execute plans, studies, surveys, specifications, and designs prepared by a licensed landscape architect, and may recommend and execute measures for interior and exterior beautification and development through the use of nursery stock." A landscape contractor may also sell nursery stock which he installs.

It is undisputed that Mr. Hopping has never held a license as a landscape architect, although he admitted he prepared some plans and supervised their execution. He represents himself as "Michael Hopping, Landscape Design and Construction" on his letterhead and checking account, and signed the agreement with Bradley-Miremont and Forte and Tablada as "Michael Hopping, Landscape Designer." The only way he could be in compliance with the statute was if Chris Braud and/or Cynthia Cash were his "regular employee[s]." Both Mr. Braud and Ms. Cash testified they worked for Mr. Hopping on an hourly consultant basis. Mr. Braud had contracted regularly with Mr. Hopping on different projects for a period of years beginning in 1981. Mr. Hopping paid Mr. Braud $34,645.06 in 1981, $36,595.96 in 1982, $45,262.00 in 1983, and $21,346.72 in 1984. Mr. Braud testified he has no space set aside for him at Mr. Hopping's office and works sporadic hours, depending on the individual project. Ms. Cash testified at the investigative hearing, "I always felt that I was more of a consultant than an employee. To me ... being a regular employee [means] taking out social security and things like that. I kept my own hours. I'm basically self-employed."

An employee (servant) is a person who lets, hires or engages his services to another to be employed at any work, commerce or occupation whatever for the benefit of the other for a certain price, or upon certain conditions. La.C.C. art. 163; Vining v. Bardwell, 482 So.2d 685 (La.App. 1st Cir.1985), writ denied, 487 So.2d 439 (La.1986).

In order to meet the requirements of La.C.C. art. 163, the single most important factor to consider in deciding whether the employer-employee relationship exists is the right of the employer to control the work of the employee. Roberts v. State, Through the Louisiana Health and Human Resources Administration, 404 So.2d 1221 (La.1981). The supreme court quoted Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), at page 1225 as follows:

It is the right of control of the time and physical activities in the other party and the existence of a close relationship between the parties which determine that one is a servant.

We further stated:

'Servant' must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to very close control by the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer's business and must submit to the control of his physical conduct as well as of his time.

The factors used to determine the right to control are selection and engagement, payment of wages, power of dismissal, and power of control. Varnado v. Sanders, 477 So.2d 1205 (La.App. 1st Cir.1985), writ denied, 481 So.2d 630 (La.1986). We feel Mr. Hopping did not exercise such degree of control over Mr. Braud or Ms. Cash so as to constitute an employer-employee relationship. We therefore agree with the Commission's decision that neither Mr. Braud nor Ms. Cash were regular employees of Mr. Hopping and conclude that its findings of fact were not manifestly erroneous. Accordingly, the Commission's legal conclusion that Mr. Hopping did not have a regular employee under LSA-R.S. 37:1964(C) is legally correct.

UNLAWFUL PROCEDURE

LSA-R.S. 49:964(G) of the Louisiana Administrative Procedure Act provides:

The court may affirm the decision of the...