IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DAVID A. SCHULTZ,

Appellant, C.A. No. Nl7A-06-002 RRC

DELAWARE BOARD OF
ARCHITECTS.

Appellee.

Subrnitted: November 28, 2017
Decided: February 16, 2018

On Appeal From a Decision of the Delaware Board of Architects. AFFIRMED.

O_RDB

Paul Cottrell, Esquire and Jason J. Cumrnings, Esquire, Tighe & Cottrell, P.A.,
Wilmington, Delaware, Attorneys for Appellant David A. Schultz.

Jennifer L. Singh, Esquire, Deputy Attorney General, Department of Justice, Dover,
Delaware, Attorney for the Delaware Board of Architects.

COOCH, R.J.

This 16th day of February, 2018, upon consideration of Appellant’s appeal
from the decision of the Delaware Board of Architects, it appears to the Court that:

l. David A. Schultz (Appellant) has appealed a disciplinary decision of
the Delaware Board of Architects (the “Board”) for his failure to meet
the biennial Continuing Education (“CE”) Hours requirement pursuant
to 24 Del. C. § 301 and 24 Del. Aa’min. C. § 300-6.3.1. On appeal,
Appellant argues that he should not have been disciplined for not

l

meeting the CE minimum because he did not violate the regulation
“willfully.” He also argues that the discipline would create an undue
burden upon him and the Board’s decision was otherwise arbitrary and
capricious The Board contends that its decision is supported by
substantial evidence and is free from legal error because the basis for
its decision was Regulation 6.2.1, not 6.2.1.2 as Appellant contends,
and thus no showing of willfulness was required. The Court finds that
the decision by the Board is supported by substantial evidence and is
free from legal error. Accordingly, this Court AFFIRMS the decision

of the Board.

Architect licenses in Delaware are issued for a maximum of two years,
at which time they must be renewed. On May l, 2012, the Board
amended its regulations and updated Regulation 6.2.1 to require that
“an architect must complete a minimum of 12 [“CE”] Hours each
calendar year[.]”' This regulation remained in effect until November 1,
2016 when the Board amended Regulation 6.2.1 to its current language,
which states that “an architect must complete a minimum of 24 [CE]
hours each renewal period including a minimum of 8 [CE] hours in each
year . . . .”2

Since January 1, 2003, Delaware Board-licensed architects were
required to complete all of their CE hours in “Health, Safety and
Welfare” (“HSW”) subjects.3 Currently, Board Regulation 6.2.1.1
states that “[a]ll Continuing Education Hours must be completed in
Health, Safety, and Welfare Subjects . . . .”4 While the Board does not
require a licensee to provide proof that he has completed the requisite
CE’s, it is necessary that a licensee attest that he has complied with the
CE requirements at the time of renewal.5 Following the renewal period,
the Board conducts random audits.6 “All registrants shall maintain
documentation of continuing education, which shall include proof of

attendance and verification that the education was . . . a [HSW] course
737

 

l Appellee’s Answ. Br. at 5 (citing Appellee’s Answ. Br., App. at 42) [hereinafter A_].

2 A55.

3 Appellee’s Answ. Br. ar 6 (citing A65-76); A72.
4 24 Del. Admm. C. § 300-6.2.1.1.

5 24 Del. Adml'n. C. § 300-6.3.2 and 6.3.3.

6 24 Del. Admin. C. § 300-6.3.1.

7Id.

The Board randomly selected Appellant to be audited on September 9,
2016.8 The two-year renewal period that was to be audited was January
1, 2014 through December 31, 2015. Appellant attested that he had
completed his requisite CE’s.° Appellant responded to the audit with
his course certificates and a letter to the Board, which indicated that,
although he had completed 13.5 of the requisite 12.0 HSW CE’s for
2015, he had only completed 8.0 of the requisite 12.0 HSW CE’s in
2014.10 Thus, Appellant had not accrued the requisite 12 CE’s per year
as previously required under Regulation 6.2.1.ll

The Board held a hearing on January 17, 2017 to show cause why the
Board should not impose disciplinary sanctions against Appellant for
his failure to meet the CE requirement12 At the hearing, Appellant,
without counsel, admitted that he “made a mistake” and
“miscalculated” his CE’s.13 Appellant stated that he “was shocked
when [he] found out that [he] was deficient with Some [HSW]
credits.”14

On February 24, 2017 the Hearing Officer issued a recommendation to
the Board that Appellant be disciplined as a result of Appellant’s
insufficient 2014 HSW CE’s.'5 The Hearing Officer recommended,
among other things, that the Board issue Appellant a Letter of
Reprimand and that the Board impose a $1,000 fine against Appellant.16
The Hearing Officer provided Appellant with a copy of the
recommendation and informed him that he could provide the Board
with “any eXceptions, comments or arguments regarding the . .

recommendation,” and that the Board would make its final decision
thereafter.17 Appellant did not submit any exceptions, comments, or
arguments as otherwise permitted pursuant to 29 Del. C. § 8735(v)(1)d.

 

8 Appellant’s Op. Br. at 4.
9 Appellee’s Answ. Br. at 7.

'0 A2.

" Regulation 6.2.1 now requires “a minimum of 8 [CE] Hours in each year[.]”
'2 Appellant’s Op. Br. at 5.

|3 A22-23
'4 Ia’. at 24.

'5 Appellant’s Op. Br., Ex. A at 6.

16 Id. at 7.
|7 A32.

The Board deliberated on April 5, 2017 and then affirmed the
recommended discipline on May 3, 2017.l8 The Board specified that
Regulation 6.2.1.2, which the Hearing Officer found Appellant did not
violate “contemplates that a licensee should be subject to discipline
beyond that warranted for failing to comply with the CE requirements,
if in so doing, the licensee attempts to deceive the Board or willfully
disregards its mandate.”19 The Board agreed with the Hearing Officer’s
finding that Appellant had not deceived the Board or willfully
disregarded the requirements and found that “Regulation 6.2.1.2 was
irrelevant to [Appellant’s] situation.”20 Appellant now appeals that
decision to this Court.

On appeal, Appellant argues that the Board should not discipline him
because he did not willfully violate the CE requirements pursuant to
Regulation 6.2.1.2. Appellant also argues that the punishment would
impose an undue burden on him, which does not conform to the state
objectives of the Delaware Board of Architects to “protect the general
public from unsafe practices, and from occupational practices which
tend to reduce competition or fix the price of service.”Z' Appellant
asserts that his violation was inadvertent and an “innocent error.”22
Appellant also argues that the Board decision was arbitrary and
capricious by citing In Re Kida’, a 2017 “Non-Disciplinary Order” of
the Board, where the Board did not impose disciplinary sanctions upon
an architect in a case that he claims was a “nearly identical
situation[.]”23

In response, the Board argues that its decision is Supported by
substantial evidence and is free from legal error, and as a result, should
be affirmed. The Board asserts that because the basis for its decision
was Regulation 6.2.1, not 6.2.1.2 as Appellant contends, no showing of
“willfulness” was required. The Board states that because Appellant did
not complete at least 24 HSW CE’s during the 2014-2015 renewal
period, he violated the pre-amendment Regulation 6.2.1. As such, the

 

18 Appellee’s Answ. Br. at 10-11.

19 A34.
20 ld. at 34-35.

21 Appellant’s Op. Br. at 12 (citing 24 Del. C. § 301).

22 Id

23 Appellant’s Op. Br. at 14.

Board argues, it had the authority to impose disciplinary sanctions upon
Appellant for failing to meet the CE requirement. The Board also
contends that this Court should ignore Appellant’s reliance on In Re
Kidd as it is “outside of the record[.]”24

10. In reviewing the decision of the Board, this Court limits its review to
whether the Board's decision is supported by substantial evidence and
is free from legal error.25 Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.26 The Court does not sit as a trier of fact with authority to
weigh the evidence, determine questions of credibility, and make its
own factual findings and conclusions.27 “The Court, when factual
determinations are at issue, shall take due account of the experience and
specialized competence of the agency and of the purposes of the basic
law under which the agency has acted.”28 “If the Board's findings and
conclusions are found to be based upon substantial evidence and there
is no error of law, the Board's decision must be affirmed.”29 In this
process, “the Court will consider the record in the light most favorable
to the prevailing party below.”30

11. The Board decision below was supported by substantial evidence and
was free from legal error. As such, it will be affirmed. Appellant’s
primary contention is that the Board should not have disciplined him
under Regulation 6.2.1.2 because his failure to complete the requisite
CE’s was inadvertent and not willful. However, neither the Hearing
Officer nor the Board found Regulation 6.2.1.2 applicable to
Appellant’S case. In fact, the Hearing Officer expressly stated (and the
Board agreed) that there was no evidence of intent to violate the CE
requirement. Thus, Regulation 6.2.1.2 was not the basis of Appellant’s
punishment. Rather, the Board’s decision was based on Regulation
6.2.1 and 24 Del. C. § 314(a)(4).31

 

24 Appellee’s Answ. Br. at 27.
25 Morabito v. Prof'l Stana'ards Bd., 2018 WL 565301, at *6 (Del. Super. Ct. Jan. 23, 2018) (citing
29 Del. C. § 10142(d)); Avon Proa'., lnc. v. Lamparskl`, 293 A.2d 559, 560 (Del. 1972).
26 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
27 Johnson v. Chrysler Corp., 59 Del. 48, 51, 213 A.2d 64, 66 (1965).
28 29 Del. C. § 10142(d).
29 Sokoloffv, Ba’. ofMed. Pracl'ice, 2010 WL 5550692, at *5 (Del. Super. Ct. Aug. 25, 2010).
:0 Gen. Momrs Corp. v. Guy, 1991 wL 190491,ar*3(De1. super. Ct. Aug. 16, 1991).
l A34.

12.

13.

14.

The Board’s decision was further supported by substantial evidence and
was free from legal error because Appellant was deficient in the
required CE’s under the Regulation 6.2.1 as it existed at the time of his
audit. The Board has the authority to discipline licensees for
“violat[ing] a lawful provision of [Chapter 3: Architecture], or any
lawful regulation established thereunder.”32 From May 2012 until
November 2016, Delaware licensed architects were required to
complete at least 12 CE’S in HSW subjects per calendar year or 24 CE’s
per renewal period. Appellant completed only 8 HSW CE’s in 2014 and
a total of 21.5 HSW CE’s for the renewal period.33 Therefore, the
Board’s decision that he was in violation of Regulation 6.2.1 was
supported by substantial evidence and free from legal error.

Moreover, Regulations 6.2.1 and 6.2.1.2 can exist independent of each
other. This Court finds no conflict between the two Regulations. The
Board was correct when it stated that a willful violation of the CE
requirements under Regulation 6.2.1.2 would permit “discipline beyond
that warranted for failing to comply with the CE requirements[.]”34 The
Board has authority to discipline licensees for violating any regulation
under Chapter 3. The Board need not find that Appellant willfully
disregarded or fraudulently misrepresented his CE’s to discipline him.
However, the Board may impose the heightened discipline of
Regulation 6.2.1.2 is it finds that a licensee willfully disregarded or
misrepresented that architect’s CE’s. The Board has the authority to
punish for violations of Regulation 6.2.1, 6.2.1.2, or a combination of
the two. Failing to meet the biennial requirements for the CE’s was a
sufficient basis upon which the Board could issue disciplinary
sanctions.

The Court does not find that In Re Kia’d is “outside of the record” as the
Board contends. Rather, this Court finds that Kia’a’ is legal precedent.35

 

32 24 Del. C. § 314(a)(4).

33 The Board allowed audited licensees to utilize its current Regulation 6.2.1, which only requires
licensees to have complete 8 CE’s per year so long as they complete a total of 24 HSW CE’s during
the two-year renewal period. Even when he rolled back 1.5 credits from his 13.5 HSW CE’s in
2015 to 2014, Appellant remained deficient.

34 A34 (emphasis added).

35 The Board requested that the Court strike any references to In Re Kz'a'a'. See Appellee’s Answ.
Br. at 29 (“To that end, it is well settled in Delaware that any evidence presented to the Court that
was not reviewed by the Board must be stricken.”). That application is denied.

6

However, Kidd is nonetheless distinguishable from the facts here.
When the hearing officer found that Mr. Kidd was deficient two CE’s,
Mr. Kidd voluntarily informed the eight other states in which he was
licensed that he has not been compliant with the Delaware CE
requirement.36 The hearing officer found that “Mr. Kidd went above
and beyond what was required of him” by self-reporting his
deficiency.37 The hearing officer also found that Mr. Kidd was provided
incorrect information by a staff member at the Division of Professional
Responsibility, which Mr. Kidd relied on to incorrectly believe he was
in compliance with the CE requirements The hearing officer
recommended that Mr. Kidd “should not be subject to discipline as he
took numerous precautions to avoid being out of compliance and relied
upon incorrect information provided to him[.]”38 The Court does not
find that Kidd is a “nearly identical situation” to Appellant’s case.

15. This Court finds that the Board’s decision was supported by substantial
evidence and was free from legal error. This Court may not weigh
evidence nor act as a factfinder. As such, the Court need not reach
Appellant’s other arguments that Appellant’s punishment is an undue
burden on him or that the Board’s decision was arbitrary and capricious.
This Court will not disturb the decision of the Board below absent a
showing of legal error or that the Board’s decision was unsupported by
substantial evidence. The decision of the Board is AFFIRMED.

IT IS SO ORDERED.

(\,.£A£\\,ce.nd.

Richard R. Cooch

 

cc: Prothonotary
Delaware Board of Architects

 

36 Appellant’s Op. Br., Ex. B at 2.

