Wednesday, September 23, 2009
Trust Me, I'm an (Unlicensed) Architect
If you don’t have an architectural license, it’s illegal to call yourself an architect or perform architectural services—but people still do. Who are they, who’s policing them, and can they be stopped?
(this article is by:Amanda Kolson Hurley,additional research by John ScappiniRelated ArticlesSave / Share and found at http://www.architectmagazine.com/legal-issues/trust-me-im-an-unlicensed-architect.aspx#related_articles)
Michael Angelo Gideo owns a small business in Plano, Texas, that specializes in custom-designed backyards. His company installs swimming pools, builds outdoor fireplaces and patios, puts up decks, and tackles landscaping projects. The company, Backyard Architect, has a website at backyardarchitect.com.
A fitting name, right? The Texas Board of Architectural Examiners doesn’t think so: Gideo is not, and has never been, a registered architect in the state of Texas; nor is his company affiliated with a registered architect. By Texas law, one of these conditions must be met if the term “architect” or “architectural services” is used in a business name.
Early this year, after Backyard Architect came to their attention, board staff sent Gideo warning letters, notifying him that he was violating both the state Architects’ Practice Act and the Landscape Architects’ Practice Act. He didn’t respond. In March, board staff met informally with Gideo to tell him that his continued use of the term “architect” in his business name was illegal. “He gave us no legal reason why he was [still using the term],” recounts Michael Shirk, the board’s managing litigator. Gideo’s website stayed live, the name unchanged.
James Madison Jackson
Jackson served two years in a Texas prison for theft and is currently awaiting trial for writing worthless checks in North Carolina. But his “gateway crime” was the unlicensed practice of architecture. Once employed as an architect by Dallas firm Gromatzky Dupree & Associates (he was dismissed when they discovered that he wasn’t licensed, despite his claims to the contrary), Jackson has received felony indictments for illegal practice in both Texas and South Carolina. More recently, operating various construction businesses, he racked up liens totaling more than $1 million—not to mention criminal charges and a trail of angry victims.
Credit: PJ Loughran
So in July, an administrative law judge advised the board to impose a penalty against Gideo of $200,000. That’s $5,000 a day—the highest penalty the board is authorized to assess—for each of the 40 days (or longer) that Gideo had violated the law.
Rule-Breakers and Fakers
If Texas Board of Architectural Examiners v. Mike Gideo stands out, it’s for the jaw-dropping penalty recommendation, not for the fact that someone without a license to practice architecture touted himself as an architect or offered architectural services. That part is all too common. Unlicensed practice is nothing new, and neither are attempts to curtail it. Many states have had laws on the books for decades stipulating that architects stamp drawings of all structures above a certain square footage. The intent is to safeguard the health and welfare of the public: An office building or day care center with major design flaws poses an obvious risk to the people inside, as does an unsound or barely habitable home.
In any given year, hundreds of complaints about unlicensed practitioners are filed with state boards by members of the public; by bona fide licensed architects; and by building officials (alerted, perhaps, by a set of unstamped drawings). Who are the offenders?
They include an architecture school professor who used the phrase, “as an architect, I … ” in a newspaper article she wrote (Iowa, 1997, cease-and-desist order, no penalty), and a licensed architect who was found to have published his business website—with multiple variations on the verboten title “architect”—before he had obtained his license (California, 2006, $500 civil penalty). There are respected architects, already licensed in one or more states, who obtain a license in another—but only after starting work on a project there. At the other end of the ethical spectrum are the people who steal dead architects’ seals and fraudulently stamp drawings with them.
In between the shoulda-known-betters and the downright crooks are a lot of overreaching drafters and builders like Gideo. Almost always, a state board’s first step after investigating a complaint is to send a letter explaining the protected nature of the terms “architect” and “architectural.”
Do the violators really not know that what they’re doing is illegal? “A decent number” of cases are due to ignorance, confirms Douglas McCauley, executive officer of the California board: “Folks are genuinely not knowledgeable” about the law. However, he adds, “You also get a fair number who know the law, and … are operating on the edge.” Joseph Vincent, administrator of Washington state’s board, estimates “right off the top of [his] head” that about 75 percent of these violators don’t understand the legal protection of the title or how they’ve infringed on it. The other 25 percent “are more deliberate—and then we pursue appropriate actions.”
Under the laws of numerous states, single-family homes or structures of less than a certain square footage are exempt from the requirement that an architect be involved in the design. So the line between houses and townhouses, or between 4,000 and 4,500 square feet, can start to look blurry. “When you [i.e., a contractor] … do a residential design for a doctor’s house, and the doctor comes back and says he wants you to do his office—that’s where [unlicensed people] cross the line,” says David Minacci, a lawyer whose firm investigates and prosecutes cases of unlicensed practice in Florida on behalf of the state board there.
Cease and Desist
The letter of warning, or a sterner cease-and-desist order, is usually enough to prompt voluntary compliance, the common goal of all state boards. The board officials interviewed for this article emphasize public outreach as an essential tool, and a few can point to full-fledged education campaigns. California’s board “subscribes to a philosophy of … preventative rather than remedial,” says McCauley. He rents a booth at the statewide conference of buildings officials and cultivates a relationship with the American Institute of Building Design (AIBD). New York director Robert Lopez has visited Pratt Institute, City College, and other schools to talk about the importance of licensure.
But all the outreach in the world can’t stop someone who’s intent on misrepresenting him- or herself or committing fraud, and in such cases, boards get tough. How tough depends on the state. Texas’s $5,000-per-day maximum penalty is not typical, and some boards are essentially toothless—West Virginia’s, for instance, has authority only over licensed architects, so it doesn’t even track cases of unlicensed practice, let alone prosecute them, says the board’s executive director, Lexa Lewis. Among the states with the most enforcement muscle are Texas, Illinois, Florida, Nevada, and California; those with the least include Wyoming, New Hampshire, and Idaho, as well as the District of Columbia.
Sullivan, Stevens, Henry, Oggero & Associates
As a firm composed of non-architects, Houston’s Sullivan, Stevens is well within its rights to design single-family homes in Texas, thanks to a legal exemption. However, that exemption doesn’t apply to multifamily dwellings or commercial structures above a certain size or height. Texas’ board learned that not only had Sullivan, Stevens drafted plans for two townhouse communities and a sales office (all nonexempt), but the City of Houston had permitted them—satisfied by an American Institute of Building Design stamp where an architect’s should have been. The board ordered Sullivan, Stevens to cease and desist from the practice of architecture and recommended a fine of $25,000; the case was settled before a hearing was held.
Credit: PJ Loughran
Law-abiding architects should be encouraged by one trend: A number of state legislatures have recently conferred more power on boards of architecture. Washington’s board did not have the authority to send cease-and-desist orders until 2002; before then, it had to try to convince reluctant district attorneys that illegal architectural practice deserved their attention. Likewise, in 2003 New York’s State Education Department, which oversees 48 professions including architecture, received the authority to investigate and prosecute illegal practice. Before that, the board had to turn complaints over to the attorney general—never an easy sell. (If a case is serious enough to warrant criminal prosecution, even relatively powerful boards still have to go begging to the district attorney or attorney general. “The unfortunate reality is,” says McCauley of California, “when DAs are looking at rapes and murders—architectural issues—you can imagine where we fall in that continuum.”)
Florida voted for a different kind of change seven years ago, passing a law that allowed the board to contract with a private vendor for disciplinary services. The law firm that David Minacci works for—Smith, Thompson, Shaw & Manausa of Tallahassee—got the contract. Minacci says that going after unlicensed practice has been his top priority—and the numbers attest to that. “When you look at the numbers compared to when the DBPR [Deptartment of Business and Professional Regulation] were [handling enforcement], there’s no comparison whatsoever,” Minacci claims.
Sure enough, during the three-year period from Nov. 1, 1999, through Oct. 31, 2002—i.e., before privatization—the Florida board issued 20 cease-and-desist orders per year, on average (that number includes orders issued against unlicensed practitioners of interior design as well as architecture). By comparison, the three-year period from Nov. 1, 2004, through Oct. 31, 2007, yielded an average of 184 cease-and-desist orders per year, an increase of more than 800 percent.
Florida’s high-double-digit numbers of cases for each of the last few years dwarf any other state’s, and effectively produce what looks like an upward trend of enforcement nationwide. Even so, anecdotal evidence from other states suggests that the trend may be widespread. Joe Vincent of Washington has noticed “a fair uptick” in complaints, which he attributes to the board’s newfound ability to take substantive action against offenders. Similarly, Melinda Pearson, the board director in Nebraska, says her board seems to be getting more complaints after it hired a compliance officer, who is responsible for follow-up. If Vincent and Pearson are correct, a proactive board can inspire a state’s architects to help regulate their own profession by lodging more complaints.
Cutting Corners—and Budgets
Besides hypervigilant architects, what could be driving the numbers of cases higher? The economy is an obvious answer, but there are different theories as to how it affects illegal practice. Minacci, in Florida, actually perceives a slight drop in complaints over the last 12 months, which he attributes to residential designers going out of business. But Texas’ Shirk sees the pendulum swinging the other way because of recessional cost-cutting. “I do think that with the economy being in the slump it’s in, there has been an increase in building design occurring without the use of architects when [they] should have been involved.” A particular problem in his state is the design of nonexempt structures by either unlicensed building designers or by engineers, who may claim to be qualified to perform “comprehensive building design.”
And as all 50 states—although some more than others—are tightening their belts due to the ongoing economic crisis, enforcement may suffer. In California, whose budgetary woes are legion, McCauley’s staff of 23 is now subject to a three-day-per-month furlough. “Suffice it to say, our resources are being restricted. And it certainly is going to affect the timeliness of our actions and ability to do some of the positive things we do, like outreach.” The Florida board’s contract with Minacci’s law firm was cut by 20 percent last fiscal year, although Minacci believes that the fines he helps the state collect should protect against further cuts.
Although Lopez’s office received new powers back in 2003, it had to wait a few more years for commissioner’s regulations on precisely how to implement the law, Lopez says. So is New York’s surprisingly low tally of disciplinary actions going to shoot up anytime soon? “I would expect those numbers to climb as we put this process in place,” Lopez says, adding that New York’s procedure for handling misconduct by licensed architects has been formulated ahead of that for unlicensed practice.
Will Lopez’s office start sending compliance agreement letters again, as it did back in the early part of this decade? “As staffing numbers permit, we’ll be able to [pursue] some of these cases,” is his circumspect answer.
As an unlicensed employee of New York City’s Department of Education, working in its construction unit, James Arriaga unlawfully practiced architecture with a little help from the bogus stamp and seal of an actual licensed architect. He was found in 2005 to have defrauded more than 150 people over a four-year period. Arriaga pleaded guilty. He was sentenced to four months of weekends in jail and five years’ probation, and was ordered to make reparations to the city in the amount of $10,000. Needless to say, he was required to resign from his government job.
Credit: PJ Loughran
What’s in a Name
Reached by phone in late July, Michael Angelo Gideo was happy to talk about his dealings with the Texas board, though his reaction see-sawed between defiance and bewilderment. Backyard Architect, he says, is “just a play on words,” which he compares to “Lawn Doctor”—“and I don’t see anybody getting harassed on account of Lawn Doctor.”
When asked if he would change his company’s name, Gideo responded that he wouldn’t. A few minutes later, he backtracked, saying he might change it to Michael Angelo II. Gideo acknowledges that he could see why the state wanted to regulate use of the title “architect”—“I can see their side, too; they’re trying to protect the people”—and claims that he’d like to find an architect to affiliate with, and thereby satisfy the law, but it will take time.
Will he pay the $200,000 penalty? “How would I pay that? How would you do that? It’s ridiculous.” He says he has stopped opening mail related to the case and hasn’t retained an attorney.
Just before this issue went to press, the governor-appointed board members (they do not include Shirk, a staffer) voted to adopt the judge’s proposal. “Respondent’s ongoing and purposeful disregard of the laws within the Board’s jurisdiction indicates that a significant sum of money must be imposed to deter future ... illegal behavior,” reads a passage in the final order.
If Gideo fails to pay the penalty in full or to appeal within 50 days of the order’s issuance, the board will seek an injunction against him in district court. After that happens, he could end up with the attorney general’s office seizing his assets.
No doubt Gideo’s behavior was “extremely serious,” as the board found, but $200,000—that’s a lot of money. In response to this observation, Shirk e-mailed, “Big State–Big Penalty.” The e-mail had a photo of the Texas state flag, with a legend in large-point, red type:
“Don’t Mess With Texas Architects.”
WHAT YOU CAN DO TO STOP ILLEGAL PRACTICE
Keep your eyes and ears open
If a friend or family member has hired a supposed architect who seems less than competent, check him or her out. Scan the ads in your local paper; do a Google search for “architect” + “[your town or city]” to see what names and websites turn up.
Report, report, report
If you suspect that someone is practicing architecture without a license, take your concerns straight to your state board. Many board websites now allow you to verify a person’s licensure by means of a quick name search. Be sure to follow through on your sleuthing and, if warranted, lodge a complaint: After all, it’s stipulated in the AIA’s code of ethics and professional conduct.
Contact your local AIA component
If you think illegal practice is a problem in your state, let your AIA chapter know. It may have enough lobbying power to make your state government sit up and take notice.
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