Alabama Board of Examiners of Landscape Architects v. Bostick

211 So. 3d 825, 2016 WL 1171763, 2016 Ala. LEXIS 41
CourtSupreme Court of Alabama
DecidedMarch 25, 2016
Docket1141358
StatusPublished
Cited by2 cases

This text of 211 So. 3d 825 (Alabama Board of Examiners of Landscape Architects v. Bostick) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alabama Board of Examiners of Landscape Architects v. Bostick, 211 So. 3d 825, 2016 WL 1171763, 2016 Ala. LEXIS 41 (Ala. 2016).

Opinions

BOLIN, Justice.

Chad Bostick petitioned this Court for a writ of certiorari seeking review of the Court of Civil Appeals’ opinion reversing the judgment of the Montgomery Circuit Court that reversed the administrative order issued by the Alabama Board of Examiners of Landscape Architects (“the Board”) suspending Bostick’s license for one year and imposing a $250 fine upon him pursuant to § 34-17-1 et seq., Ala. Code 1975. Alabama Bd. of Exam’rs of Landscape Architects v. Bostick, 211 So.3d 816 (Ala.Civ.App.2015). We issued the writ. We now reverse and remand.

[826]*826 Facts and Procedural History

The Court of Civil Appeals set forth the following facts:

“The Board licensed Bostick as a landscape architect in 2009. At that time, Bostick was employed by GRC Design Group, Inc. (‘GRC’), a landscaping business owned and operated by Greg R. Curl. A dispute between Bostick and GRC arose, and Bostick resigned from his employment with GRC on January 15, 2010. Bostick then started his own landscaping firm. In February 2010, Curl filed a written complaint with the Board alleging that Bostick had, while employed with GRC, ‘misrepresented himself to clients as part owner in [GRC] and as a result had clients write checks payable to him which he cashed for his own personal use.’ Curl claimed that Bostick ‘admitted to stealing these design fees and eventually to several more acts of fraud.’ Bostick responded to the complaint by a letter in which he denied that he had violated the Board’s Code of Conduct and stated that ‘[t]he clients in question paid me directly for the intellectual property that I provided for them, and were completely satisfied with the work that they received. Their payment was not directed by me, nor was it based upon any misrepresentation or fraudulent act whatsoever.’
“On December 14, 2011, the Board brought an administrative complaint against Bostick, alleging three counts as a basis for disciplinary action: that Bos-tick’s ‘actions indicate fraud or deceit by [Bostick] and are therefore a violation of [§] 34—17—5(a)(5), [Ala.Code 1975,]’ that his ‘actions indicate negligence or willful misconduct and are therefore a violation of [§] 34—17—5(a)(6), [Ala.Code 1975,]’ and that his ‘actions indicate conduct involving fraud or wanton disregard of the rights of others and are therefore a violation of the Boardf’s] ... Code of Conduct Section 5(c).’ On February 15, 2013, a hearing was held before a hearing officer appointed by the Board. The hearing officer received testimony from Curl, Bostick, and GRC employee Brad Johnson. Bostick was represented by counsel. The hearing officer also accepted two affidavits from clients of GRC who had written checks to Bostick for work he had performed while he was employed by GRC. After the hearing was concluded, the hearing officer filed a recommended order with the Board, which contained the following findings of fact:
“ ‘Curl is the sole owner of GRC. He has been in business for eighteen years after receiving his degree in landscape contracting from Mississippi State. Curl met and hired Bostick in the late 1990’s.... Bostick was a subcontract employee for GRC for about six months, but then ... Curl allowed Bostick to become a full-time employee. Bostick’s job consisted of design and sales and eventually a Landscape Architect position when he was licensed on September 23, 2009.
“‘GRC paid Bostick a salary plus quarterly bonuses if GRC had a good quarter, based on Bostick’s work and the company as a whole. Curl testified that he did not have an agreement with Bostick that he could do outside design work....
“ ‘In 2009, ... Curl examined client files. Curl mentioned to Johnson that the Berry clients had not paid for their installation work, and Johnson said he saw one of the Berrys give Bostick a check. Johnson testified that Bostick did the design work on the project and would come on site occasionally. Johnson testified that one day in December 2009 when Bos-tick was on the site, one of the Berrys said, “Wait, I have a check to give you,” and gave Bostick a check.
[827]*827“ ‘Curl called the Berrys, who said they gave Bostick a $300.00 check and provided Curl with a copy of the cheek made out to and deposited by Bostick.
“ ‘Curl then checked the file of clients named Borden. The file contained a project proposal letter to the Bordens from Bostick on GRC letterhead dated June 10, 2009, in which Bostick refers to himself as a partner. Curl testified that Bostick was not authorized to represent himself as a partner and does not remember having any discussion with Bostick about Bostick becoming a partner or representing himself to clients as a partner. Bostick testified that he asked Curl if Bostick could use the term partner so that his proposals would have more credentials and Curl said yes.
“ ‘Curl then called the Bordens who said they paid Bostick several times, and they provided copies of three checks made out to and deposited by Bostick: one dated October 25, 2009, for $1094.30, another dated August 20, 2009, for $1305.80, and another dated December 7, 2009, for $802.60.... All of the checks were for invoices submitted by Bostick to the Bordens on GRC letterhead. The design for the Bordens has Bostick’s initials and GRC in the title block....
“ ‘Curl confronted Bostick about the checks, and Bostick finally admitted to taking the checks and resigned from GRC. On the advice of Curl’s CPA, Curl filed a 1099 for the checks paid directly to Bostick so that Curl would not have to pay payroll taxes on those amounts.... Bostick testified that he reported the checks paid to him from the Bordens and the Berrys to the IRS using the 1099 form.
“ ‘Bostick does not deny receiving the checks from clients, and testified he has no idea why they made the checks out to him directly. He testified he felt he was right to deposit the checks because he would have been paid a performance bonus at the end of the quarter. His position is that the payments from the clients would have been part of his bonus for that quarter. He was not stealing, in his belief, because of the loose agreement he had with Curl. But in previous years he had never taken payment from clients as part of his bonus. Bostick did not receive a bonus from GRC for the last quarter of 2009, and Curl testified that the money paid to Bostick from the clients could have become money in his performance bonus.
“ ‘Also, one invoice Bostick submitted to the Bordens included $360.00 for engineering work. Bostick did not perform any engineering work but cashed the check for the invoice that included engineering work and did not pay that money back to GRC.’
“The recommended order concluded:
“‘In the present case, the Board presented substantial evidence warranting disciplinary action against Bostick. The Board proved, and Bos-tick admitted in writing and at the hearing, that he deposited checks from clients totaling $2196.90 and did not submit the money to GRC, while he was working as a Landscape Architect for GRC. The total amount does not include a payment he received before he was a licensed Landscape Architect.
“ ‘No grounds for mitigation exist in this case.

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Alabama Board of Examiners of Landscape Architects v. Bostick
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Bluebook (online)
211 So. 3d 825, 2016 WL 1171763, 2016 Ala. LEXIS 41, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alabama-board-of-examiners-of-landscape-architects-v-bostick-ala-2016.