### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 4, 1998 Sess

ion
WILLIAM C. MARTIN v. DOUGLAS M. SIZEMORE, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 95-170-III Ellen Hobbs Lyle, Chancellor

No. M1997-00203-COA-R3-CV - Filed August 22, 2001

This appeal involves a disciplinary proceedi ng agai nst a licensed architect. Following a lengthy hearing
, the Tennessee Board of Examiners for Architects and Engineers concluded tha t the architect hadengaged in misconduct in the practice of architecture in connection with four projects and suspendedhis certificate of registration for three years. The

architect appealed the Board’s decision to t he Chancery Court for Davidson County. The tr ial court reversed the Board’s decision after determining that the decision w as not supported by

substanti al a nd material evide nce. On this appeal, the Board asserts that its suspension of the

architect’s ce

rtificate of registration

has adequate evidentia ry support. The architect renews his argument that the Board’s proceeding s violated hi s proceduraldue process rights because the attorney who prosec uted the State’s case

against him

also served as the Board’s lawyer in other m atters. E xc ept for a portion of the charges involving one project, we concur with the trial court’s con

clusion that th

e Board’s d

ecision lacked evidentiary support because the State

failed to prese

nt exp ert testimony regarding the applicable standard of care. We have also determined that the architect has not carried his burden of demonstrating that the Board was actually biased against him because the lawy er who prosecuted the

State’s case also provided other, unrelated legal services to the Board. Accordingly, we affirm the trial court’s judgment as modified herein a

nd remand the ca

se to the Board f

or further proc

eedings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which H ENRY F. T ODD , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.

Paul G. Summers, Attorney General and Reporter, an

d Sara L. Rosson

, Deputy Atto

rney Gene

ral, Nashville, Tennessee, for the appellants, Douglas M. Sizemore, Tennessee State Board of Architecturaland Engine ering Examiners, Theodore E. Wynne, William H. Beaty, Ronald V. Gobble, David O. Lose, Richard A. Piske, Jr., Gary L . Rowe, John W. Smith, Linda E. Smith, and Willard Vance Travis, Jr.
David N. Garst, Knoxville, Tennessee, for the appellee, William C. Martin.

OPINION I.

William C. Martin received his certificate to practice architecture in Tennessee in 1969. He has been working as a sole practitioner in the Knoxville

area ever since. In May

1992, the State filed-2-

a notice of charges with the Tennessee Board of Examiners for Architects and Engineers (“Board”), alleging that Mr. Martin had engaged in un

professional con

duct on four proje

cts between late 1986 andea rly 1989. The State asserted that Mr. Martin’s certificate should be suspended or revoked because (1) he was not competent to prepare the plans for a three-story motel and commer cia l building in Pigeon Forg

e and that the “deficien cies” in his structural plans “contributed” to the collapse of the structure in April 1987, (2) he was not competent to prepare the structur a l and electricaldrawin gs for a seven-stor y motel proje

ct in Gatlinburg,

(3) he permitted a

client to construct and occupy an old grocery store converted into an automotive body shop when he knew that the Knox County Fire Prevention Bureau had issued a stop-work order on the proje

ct, and (4) he failed to submit acceptable e lectrical d esign drawings for a proposed motel in Townsend to the StateFire Marshal in a timely manner and that he permit

ted his client to subs

tantially complete the project even thou

gh the plans cont

ained numerous de

ficiencies.

In July 1993, Mr. Martin responded to the notice of charges by asserting that he had c omplied withthe applicable standards of professional conduct for each of these projects. He also interposed

numerous defenses to the notice of charg es, including assertions that the rules of professional conduct were vague, t

hat the State was e

ngaging in se

lective enforc

ement, and that the use of lawyers furnishedby the D epartment of Commerce and Insurance ( “Department”) to prosecute him amounted to a constitutionally

impermissible comb

ination of the pros

ecutorial a

nd adjud icatory fu

nctions. Lessthan one month later, Mr. Martin stepped up his attac k on the fairness of the proceedings by moving to disqualifythe De partm ent’s lawyers from p rosec utin g the S tate’ s case again st hi m. In January 1994, an administrative law judge, assigned to preside over the hearing by the Secretary of State, denied Mr. Martin’s motion to disqual ify t he Department’s lawyers because they were not assisting or advising the Board with regard to the case aga inst Mr. Martin.

Mr. Martin was not dete rred by the

administrative la

w judge’s denia

l of his motion to disqualify the Department’s lawyers. On the eve of the adminis

trative hearing

, he filed a motion to disqualify all nine members of

the Board for bi

as, prejudice, a

nd interest i

n th e outcome of the proceedings.

The basis for this motion was that the boar d members had an attorney-client relationship

with the Department’s lawyer who would be prosecuting the case a gainst him. After the adminis trative hearings commenced on February 17, 1994, one of Mr. Martin’s attorneys was permittedto argue to the Board that their relationship with the Department’s lawyer prosecuting the

case required them to disqualify themselves. Thereafte r, each board me

mber present dec

lined to recuse himself or herself from the proceeding.
Following five days of hearings, the Board enter ed a final order on

November

18, 1994. The Board found: (1) that Mr. Martin was “not competent to

have prepared or supervised the preparation of the structural, mechanical, plumbing, or electrical engineering drawings”

for the motel proje

ct in Pigeon Forge that collapsed, (2) that Mr. Martin was “not competent to have prepared or supervised the preparation of the preliminary structural or ele

ctrical design

drawings”

for the seven-story motel in Gatlinb urg, (3) that Mr. Martin did not act properly when he failed to withdraw from the converted grocery store project in Knoxville when the ow ner cons tructed and occupied the improvements

contrary to a

stop-work order issued by the Knox County Fire Prevention Bureau, and (4) that Mr. Martin had

failed to communic

ate adequately

with the State Fire Marshal in connection withthe completi on and approval of the plans for the Townsend motel project and had practiced outside the area of his c ompetence by

preparing the

project’s elec

trical design dr

awings. Acco rdi ngly, the Board determined that Mr. Martin had violated the rules of professional conduct,1 Allan Curtis, the Commiss io ner of Commerce and Insurance at the time of the administrati ve proceedings ag ainst Mr. Martin, has been replaced by Douglas M. Sizemore. In accordance with Tenn. R. Ap p. P. 19(c), Commissioner

Si zemore has been substitu ted for Commissioner

Curtis, an

d the styl

e of the case has

been changed accordin gly.

-3- that his license should be suspended for three years, and that he should be placed on probation for

one year follo

wing the suspensi

on. The Board la

ter denied Mr. Ma

rti n’s r equest for a stay

of its order.

In January 1995 , Mr. Martin filed a petition for judici

a l re view in the Chancery Court for Davidson County, naming as defendants the Commissioner of Commerce and Insurance, 1 the Board, andthe individual members of the Board. His attack on the Board’s decision was twofold. Firs t, he argued that the Board’s proceedings violated U.S. Const. amend. XI V, Tenn. Const. art. I, § 8, andTenn. Code Ann. § 4-5-303 (1998) because of the relationship between the board members and the Department ’s l awyer who prosecuted the State’s case. Second, he a sserted that the Board’s conclusion that he hadviolated the rules of processional conduct with regard to the four projects was notsupported by

substantial and material evidence. The trial court rejected Mr. Martin’s contention that the relationsh

ip betwe en the Board an

d the Department’ s lawyer wh o prosecuted Mr.

Martin caused the administrative

proceedings to

be fundamentall

y u nfair. However

, the trial court a

lso determinedthat the Board’s conclusion that Mr. Martin’s conduct on the four cited projects violated the app lic abl e st and ard o f car e was not sup por ted by su bst ant ial and mat eri al e vid ence . Ac cord ingl y, it reversed the three-year suspension of Mr. Martin’s c ertificate, as wellas the decision to place Mr. Martin on probation for one year.

II.

T HE C HALLENGE TO THE B OARD ’ S I MPARTIALITY

We will first

address Mr. Martin’s as sertion th at these pro ceedings were so fundame ntally unfair that they denied him due

process of law. Sp

ecifically , Mr. Martin

asserts that the fact that the lawyer prosecuting the charges against him also serves as the Board’s legal advisor in other unrelated matters underminedthe Board’s impa rtiality or, at least, created an appearance of unfairness. The contention is based solely on the nature of the relationship between the Board and the prosecuting lawyer. Mr. Martin neither alleged nor proved any specific c onduct on the part of either theBoard

or the l awyer tha

t w ould impugn the fairness of the proceeding. In the absence of proof of actual bias on t he p art of an y Boardmember, we have determined that this proceeding conformed to the requirements of due process and complied with Tenn. Code Ann. § 4-5-303.

A.

The St ate co mmenced this disciplinary proceeding against Mr. Martin in May 1992. Thereafter, the Board reque sted the Secreta

ry of State to provide an administrative law judge to assi

st withthe contested ca

se hearing and

to address

all preliminary procedural matters. The Secretary of Stateacceded to the Board’s request and appointed one of his employ

ees toact as the administrative law judge in this proce eding.

Over one year later, Mr. M ar tin moved to disqualify Thaddeus E. Watkins, III , the lawyer pros ecuting the charges against him, from participating further in the case. He a rgued that Mr.2 The administrat ive law judge al

so observed that “administrat ive hearin gs would b e less open to criticism if Attorneys General a rgued case s before B oards. B ut, absent a showi ng of ac tual prejudi ce (th e type which T.C.A. § 4-5- 302, in any case, is designed to correct) this judge c annot rule for the Respon dent. While the current pro cedures are less than perfect thelaw only guara ntees the right of d ue proce ss, not perfectio n. Fina lly , it shoul d be not ed th at t he APA provides for judi

cial re view of State agenc y decisions. T hus, the Resp ondent’s rights ar e further pr

otected by judici

al review.”

-4- Watkins had been assign ed to the Board to

provide gener

al legal advice

and that permitting Mr

. Watkins to present the State’s case would place him “in the anomalous position of having to defend himself in an action being prosecut ed before the Board by the Board’s ow n attorney . . ..” Mr. Martin asserted that Mr.

Watkins’s continue

d involvement with th

is case was contrary

to Tenn. Code Ann. § 4-5-303 and deprived him of due process of la w in violation of the state and federal constitutions.

The State opposed the dis qualific ation moti

on. It a sserted t hat Mr. Wa

tki ns was a lawyer employed by the Department

of Commerce and Insurance and that he had been assigned to the Board to provide “administrative l egal services

” pursuant to

Tenn. Code Ann. § 4-3-1304 (1998). De spite the fact that Mr. Watkins had signed the original notice of cha rges against Mr. Mar

tin, the State asserted that an inappropriate combination of functions proscribed by Tenn. Code Ann. § 4-5-303 didnot exist

because the adm

inistrative law jud

ge, not Mr. Watkins
, would be serving as the Board’s legal advisor in the c ontested case proceeding. Specifically, the State asserte d that “[t]he State’s counsel . . . do not render legal advice or assistance to the Board in contested case proceedings, but insteadserve as prosecutingattorneys on behalf of the State after such proceeding s are authorized by the Board.” On November 4, 1993, the administrative law judge denied Mr. Martin’s motion to disqualify Mr. Watkins on the ground that he was no t assisting or advi sing the Board i

n these proceedings.

Mr. Martin immediately requested the administrative law judge to reconsider

his November 4, 1993 order, compl

aining that the pa

rties had agre

ed to take up the qu

estio n of Mr. Watkins’s disqualification when the contested case h earing conven

ed. He also asser

ted that he had ef

fectively been deprived of an op

portunity to present eviden

ce and to file

a brief on the disqualification issue. On January 14, 1994, at the administrative law judge’s direction, Mr. Martin filed a memorandum of law in support of his

motion to disqualify

Mr. Watkins. He also

submitted the affidavit of Robert D. Holsaple, an architect who had served as the Board’s chairperson, detailing the close working relationship

between the Board and Mr. Watkins and the extent to which t he Board relied on Mr. Watki ns’s advice and assistance. On January 26, 1994, the administrative law judge denied the motion to disqualify

Mr. Watkins and his

associates because they were not assisting the Board with regard to the charges against Mr. Martin. In his order, the administrative law judge noted that “[a] mere advantage because of familiarity doe s not amount to a denial of due process.” 2

The administrative law judge’s order did not end the disqualification dispute. On February 10, 1994, on e week before t he scheduled sta

rt of the conteste

d case hearing, Mr. Martin fil ed a motion se eking the disqualification of all members of the Board. He asserted that the Board members could not be impartial triers-of-fact because of their long-standing rela tionship with Mr. Watkins and the other lawyers employe d by the Division of Regulatory Boa rds. The State opposed this motion.-5-

The Board members themselves entertained the disqualification motion when the contested

case hearing commenced on February 17, 1994. Af ter hearing arguments from both Mr. Martin and the State, each memb

er of the Board individually declined to remove himself or herself from the

case. Each Board memb er stated, in turn

, th at he or s he co uld hear the case imp art ial ly, notwithstanding th

e relationship be

tween the Boar

d and Mr. Watkins and

his associates.

B.

The Due Process Clause

of the Fourteenth Amendment and Tenn. Const. art. I, § 8 provide similar procedural protections and guarantees. Riggs v. Burson , 941 S.W.2d 44, 51 (Tenn. 1997); State v. AAA Aaron’s Action Agency Bail

Bonds, Inc. , 993 S.W.2d 81, 85 (Tenn. Crim. App. 1998); Eye Clinic, P.C. v. Jackson-Madison County Gen. Hosp. , 986 S.W.2d 565, 5 78 (Tenn. Ct. App. 1998). Bothprovisions provide procedural pro

tections for prop

erty and lib

erty intere

sts against arbitrary governmental interference. Armstrong v. Department of Veterans Affairs , 959 S.W.2d 595, 598 (Tenn. Ct. App. 199

7). While they

contain a guar

antee of fair

process, Zinermon v. Burch , 494 U.S. 113, 125, 110 S. Ct. 975 , 983 (1990); Daniels v. Williams , 474 U.S. 327, 337, 106 S. Ct. 677, 678 (1986), they

do not prevent the deprivationof property interests. Rather

, procedural due

process guards against unfair or mistaken deprivations of property interests. Fuentes v. Shevi n , 407 U.S. 67, 80-81, 92 S. Ct. 1983, 1994 (1972).

The threshold conside

ration with

regard to any procedural due process claim is whether the plaintiff has a liberty or

property in

terest that is

entitled to protection under U.S. Const. amend. XIV, § 1 and Tenn. Const. art. I, § 8

. Rowe v. Board of Educ. , 938 S.W.2d 351, 354 (Tenn. 1996); Armstrong v. Department of Veterans Affairs, 959 S.W.2d at 597-98. To qualify for constitutional protection, a

property interest must be more than a “unilateral expectation” or an “abstract need or desire.” It must be a “legitimate claim of en titlement” cre ated and defined by “existing rules or understand ings that stem from an independent source such as state law.” Board of Regents v. Roth
, 408 U.S. 564, 577, 92 S . Ct. 2701, 2709 (1972); Rowe v. Board of Educ. , 938 S.W.2d at 354; Eye Clinic, P.C. v. Jackson-Madison County Gen. Hosp. , 986 S.W.2d at 578.

The types of interests entitled to protection as property

interests are varied. However, they share the common characteristic that they are a

n individual entitle

ment, grounded i

n state law, that cannot be removed except “for cause.” Logan v. Zimmerman Brush Co. , 455 U.S. 422, 430, 10 2 S. Ct. 1148, 1 155 (1982); Armstrong v. Depar tment of Veterans A

ffairs , 959 S.W.2d at 598. The United States Supreme Court has recognized the constitutional sig

nificance of a p

erson’s interes

t in remaining employed. Gilbert v. Homar , 520 U.S. 924, 932, 117 S. Ct.1807, 1813 (1997); Cleveland Bd. of Educ. v. Louderm

ill , 470 U.S. 532, 543, 105 S. Ct. 1487, 1494 (1985). Thus , the ri ght to engage in a chosen profession or occupation without unreasonable governmental interfer ence or deprivation is both a property and a li bert y interest protected by the Due Process Clause of the Fourteenth

Amendment and Tenn. Const. art. I, § 8. Green v. McElroy , 360 U.S. 474, 492, 79 S. Ct. 1400, 1411 (1959); Livesay v. Tennessee Bd. of Exam’rs in Watchmaking , 204 Tenn. 500, 503, 322 S.W.2d 209, 211 (1959); State v. AAA Aaron’s Action Agency Bail Bonds, Inc. , 993 S.W.2d at 85.

A professional lice

nse, issu ed by a State, which can be suspended or revoked only upon a showing of cause is a con

stitutionally

protectable

property in

terest because

the holder of the l

icense h as a clear expecta

tion that he or she w

ill be able to contin

ue to hold the licen

se absent proof o f culpable conduct. Barry v. Barchi , 443 U.S. 55, 64 & n.11, 99 S. Ct. 2642, 2649 & n.11 (197 9).-6-

Our courts have already recognized that the prac tice of medicine, dentistr

y, and chir

opractic, as we

ll

as working as a licensed pest control operator, are protectable interests in property. Estrin v. Moss , 221 Tenn. 657, 674, 430 S.W.2d 345, 352 (1968) (pest control operators); Prosterman v. Board of Dental Exam’rs , 168 Tenn. 16, 22, 73 S.W.2d 687, 690 (1934) (practice of dentistry); State Bd. of Med. Exam’rs v. Friedm an , 150 Tenn. 152, 166, 263 S.W. 75, 79 (1924) (practice of medicine); Janeway v. State Bd. of Chirop ractic Exam’rs , 33 Tenn. App. 280, 286, 231 S.W.2d 584, 587 (1950) (practice of chiropractic).

Architects who meet the statutory requirements re

ceive a certif

icate valid for tw

o years. Tenn. Code Ann. § 62-2-307(a ) (1997). Once th

ey receiv e a certificate

, they may renew their lice

nse every two years s

imply by paying the

prescribed fee. Tenn. Co de Ann. § 62-2-307(c). Thus, an architect’s certificate may be denied, suspended, or revoked only upon proof of one or more grounds containedin Tenn. Code Ann. § 62-2-308(a)(1). Mr. Martin h as h eld and renewed his certificate entitling him to practicearchitecture since 1969. Accordingly, he had a reasonable expectation that he could continue to hold and renew his certificate to practice arch

itecture absent

proof of culpable conduct. Thus, Mr. Martin’s interest in continuing to practice in Tennessee as a licensed architect is a property

interest entitled

to procedural du

e process protec

tion under the Due

Process Clause

of the Fourteenth Amendment and Tenn. Const. art. I, § 8.

C.

The protections of

procedural due

process apply

to administrative proceedings. Richardson

v. Tennessee Bd. of D

entistry , 913 S.W.2d 44 6, 455 (Te nn. 1995) ; Medley v. Maryville City Beer Bd.
, 726 S.W.2d 891, 895 (Tenn. 1987) (Fones, J., dissenting). Having determined that Mr. Martin’s interest in continuing to pr actice archite cture in Tenness

ee is entitled to pr

ocedural due pr

ocess protection, we must determine what process is due him. Morrissey v. Brewer , 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972); Armstrong v. Depar tment of Veterans A

ffairs , 959 S.W.2d at 597-98. Because due process

is a flexible conce

pt, this inquiry

is not amenable to one

-size-fits-all an

swers. The extent and nature of the required procedural due process protections depend on the nature and circumstances of the cas e. Loga n v. Zimmerman Brush Co. , 455 U.S. at 428, 102 S. Ct. at 1153; Phillips v. State Bd. of

Regents , 863 S.W.2d 45, 50 (Tenn. 1993) ; State ex rel. McCormick v. Burson
, 894 S.W.2d 739, 743 (Tenn. Ct. App. 1994).

The courts commonly consider three factors when called upon to determine what procedural protections a particular

circumstance requires. These factors include: (1) the nature of the pri

vate interest affected by the official action, (2) the risk of erroneous d eprivatio n of that in terest thro ugh the procedures used and

the probable valu

e, if any, o f additional or substitute procedur al safeguard

s, and(3) the government’s interests, including the function involved andthe fiscal and administrative burdens that any additional or substitute safe

guard would ent

ail. Mathews v. Eldridge , 424 U.S. 319, 335, 96 S. C t. 893 , 903 (1976); Wilson v. Wilson , 984 S.W.2d 898, 902 (T enn. 1998). I

n this context, courts have also considered the length and finality of the deprivation, Logan v. Zimmerman BrushCo. , 455 U.S. at 434, 102 S. Ct. at 1157, and the

availa bility of later appeals

. Frank’s Livestock & Poultry Farm, Inc. v. United States , 905 F.2d 1515, 1518 (Fed. Cir. 1990).

Procedural due process does not require perf

ect, error-free gov ernmental d ecision-m aking. Mackey v. Montrym , 443 U.S. 1, 13, 99 S. Ct . 2612, 2618 (1979) ; Eye Clinic, P. C. v. JacksonMadison County Gen. Hosp. , 986 S.W.2d at 578. It does, however, require affording persons like3 The Board had conducted an invest igative hea

ring to inqui

re into wheth

er the physi

cian had engaged i

n prohibited

acts and then h

ad notified t

he physician

that it was going to conven

e a contested hear

ing to determi

ne whether he had committed the prohi bited acts and whe

therhis li

cense shou

ld be tempora

rily suspended. Withrow v. Larkin , 421 U.S. at 39-

41, 95 S. Ct.at 1460-61.

-7- Mr. Martin a relatively level playing field in a contest

ed case hearing. The state should not be permittedto maintai n such an un fair strategic advantage that a pall is cast over the fairness of the proceeding. In re Detention of K ortte , 738 N.E.2d 983, 986 (Ill. App. Ct. 2 000). Thus, due pr

ocess demands a fair trial before a neutral or unbiased decision-maker. Braceyv. Gramley , 520 U.S. 899, 904-05, 117 S. Ct. 1793, 1797 ( 1997); Withrow v. Larki n , 421 U.S. 35, 46, 95 S. Ct . 1456, 14 64 (1975); Ogrodowczyk v. Tennessee Bd. for Licensing Health Care Facilities Comm’n
, 886 S.W.2d 246, 252-53 (Tenn. Ct. App. 1994) (Cantrell, J., concur r ing); 2 Kenne th C. Da vis & Ri chard J. Pierce, Jr., Administrative Law Treatise § 9.8 (3d ed. 1994) (“ Administrative Law Treatise ”). It also demands an appearance of fairness and the absence of probability of outside influence on the adjudication. Utica Packing Co. v. Block , 781 F.2d 71, 77-78 (6th Cir. 1986).

Mr. Martin’s proced

ural due proces s challenge in this case rests on his belief that the Board andthe Department f

ailed to insulate th

e lawyers who prosecute ca

ses before the B oard from those who advise and repr

esent the Board

in other matters.

The courts and academics have considered the due process implicati

ons of various comb

inations o f th e investigating, prosecuting, and decisionmaking functions by

administrative ag

encies. They recognize that we do not live in a perfec

t world andthat reality

dictates operat

ing in judicial an

d administrative sy

stems that potentia

ll y contain so me amount of unavoidable hu

man predilection. Martin H. Redis h & Lawrenc e C. Marshall, Adjudicatory

Independence and the Values of Procedural Due Process , 95 Yale L.J. 455, 492 (1986) (“Redish & Marshall”). They also recognize that the varie ty and complexity of administrative processes being us ed in this country will not yield to a single organizing pr inciple, Withrow v. Larkin
, 421 U.S. at 52, 95 S. Ct. at 1467, and that the pristine sepa

ration of functio

ns characteris

tic of the criminal law is not entitled to be enshrined as the exclusive means for resol ving disputes. Howitt v. Superior Court

, 5 Cal. Rptr. 2d 196, 200

(Ct. App. 1992); Administrative Law Treatise § 9.9, at 92; 2 Charles H. Koch, Administrative Law and Practice § 6.11[1], at 309 (2d ed. 199 7 ) (“ Administrati

ve Law and

Practice ”); Michael Asimow, When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies , 81 Colum. L. Rev

. 749 , 76 8 (1 981 ). A ccor din gly, there is a clear conse

nsus that some comb ination or overlapping of functions in an administrative proceeding is notinconsistent with fundamental fairness. Administrative Law Treatise § 9.9, at 93.

The United States Supreme Court has provided the constitutional framework for analyzing combination of function issues arising from state and federal administrative proceedings. The decision came in an appeal involving a disciplinar y hea ring before the Wisconsin Medical Examining Board. The physician asserted that the

administrative pr

oceeding was in

herently un

fair because the board itself h

ad combined the inv

estigative and d

ecision-making

functions. 3 The Court implicitly rejected this str

uctural argume

nt and held that t

he “combina tion of investigative and adjudicative functions does not, without more, constitute a due process violation.” Withrow v. Larkin
, 421 U.S. at 58, 95 S . Ct. at 1470. However , the Court continue

d by pointing

out that, depending on the facts and circums tances of th e case, the ri sk of error co uld become s ufficientl y high to prompt due process concerns. Withrow v. Larki n , 421 U.S. at 58, 95 S. Ct. at 1470.4 The circumstances of this case dif fer significant

ly from those of the case whe re we held that f

undamental fairness did not p ermit using an administrative law judge who was an employee o f the lawyer for one of the parties. Malone & Hyde, Inc. v. Tenness ee Dep’t of Revenue , No. 01 A01-93 02-CH -00056 , 1993 W L 2950 23, at *2 (T enn. Ct. App. Aug. 4,1993) (No Tenn. R. App. P. 11 application filed). There is a natur al suspici

on that adjudicat

ors will ac

t favorably toward their emplo yers. V-1 Oil Co. v. Depa rtment of E nvt’l Qua lity , 939 P.2 d 1192 , 1998 (U tah 1997 ). This suspicion does not arise in this case because no employment or supervisory relation ex

ists betwe

en the administrative law judge and the lawyers em ployed by the Division of R egulatory Boards.

-8- Following the Withrow v. Larki n decision, the pre

vailing view is tha

t a party ba

si ng a proceduraldue proc ess claim on an impe rmissible combinat

ion of functions ar

gument must demonstrate

that the risk of

actual bias is intolerably high, not merely that a combination of func tions exists. Administrative Law and Practice § 6.11[1], at 310. Thus, anyform of function combination, occurring alone and without other exacerbating biasing influences, is very unlikely to run a foul of proceduraldue process. John R. Allison, Combin ation of D ecision-Making F unctions, Ex Parte Co mmu nications, and Related Biasing Influences: A Pr

ocess-Value Anal

ysis , 1993 Utah L. Rev. 1135, 1167-68.

A combination of prosecutorial and a djudicative func

tions is the most problemat ic combination for procedura l due process pur

poses. A prosecu

tor, by defi

nition, is a

partisan advoca

te for a particula

r position or point of

view. The role is i

nconsistent with the

objectivity

expectedof administrative decision-maker s. Accordingly

, to permit an advoc

atefor one party

to act as the legal advisor for the decision-maker creates a substantial risk that the advice given to the decision-maker will be skewed . Howitt v. Superior C ourt , 5 Cal. Rptr. at 202. However, the risk of bias becomes intolerably

high only when the prosecutor serves as the decision-maker ’ s advisor in the same or a related proceeding. T

hus, an administra

tive agency’s staff counsel may permissi

bly prosecu

te a case beforethe agency when an independent hearing officer presides over

the contested ca

se hearing and the prosecu tor plays no role in the agency ’s deliberations. Ogg v. Louisiana State Bd. o f Chiropractic

Exam’rs , 602 So. 2d 749, 752-53 (La. Ct. App. 1992). Similarl y, two lawyers from the same officecould serve as prosecutor and legal advisor to the administrative agency as long as they were effectively

screened from each other. Howitt v. Superior Co urt , 5 Cal. Rptr. at 203.

Mr. Watkins and his

colleagues did

not serve in an impermissible dual capacity in this case. W hilethey prosecuted the charges ag ainst Mr. Martin before the Board, they did not advise t h e Board during the proceeding and played no role in the B oard’s deliberations. Ever since the filing of the notice of charges, an administrative law judge employed by the Secr etary of State has provided these services. The administrative law judge worked independently of the employees of the Division of Regulatory

Boards, 4 and there is no evidence of any sort of ex parte communications between the administrative law jud ge an d th e la wyers pro secu tin g Mr. Mar tin . Ac cord ingl y, the existence of a prior, unrelated professional relationship between the Board and the lawyers prosecuting Mr. Martin, by itself, doe s not under mine the fai rness of th e proceeding.

D.

Individualboard members are subject to disqualification for bias if their impartiality can reasonably

be questioned. Tennessee Cable Television Ass’n v. Tennessee Pub. Serv. Comm’n , 844 S.W .2d 151, 164-65 (Tenn. Ct. App. 1992). To amount to grounds for disqualification, a boar d member’s bias must take one of three forms: (1) per son al interest bias (i.e., where the board5 Eve n though the Tennessee Supreme Court was cit ing to the l

aw of Georgia in t

his case, Ten

nessee als o recognizes a rebuttable presump tion that public officials perform their duty in goo d faith, Williams v. American Plan Corp. , 216 Tenn. 435, 441, 392 S.W.2d 920, 923 (19 65); State ex rel. Witcher v. Bil brey , 878 S.W.2d 567, 576(Tenn. Ct. App. 19 94), and in the manner prescribe d by law. Reeder v. Holt , 220 Tenn. 428,435-36, 418 S.W.2d 249, 252 (1967 ); Jackson v. Al

dridge , 6 S.W.3d 501, 503 (Tenn. Ct. App. 1999).

-9- members will e ither gai n or lose fairly directly fr

om the decision), (

2) bias or prejudi

ce against a party either as an individual or as a member of a group, and (3) bias stemming from the prejudgment of disputed fact issu

es that will preve

nt a board member

from fairly

and impartially

weig hin g the evidence. Administrative Law Treatise § 9.8, at 68; Redish & Marshall, 95 Yale L.J. at 492 . Unless the person challenging a board member for bias com es forward with evidence of bias of this sort, the courts will presume that the challenged board member, like other public officials, will perform his or her duty in good faith and in the manner prescribed by law. Withrow v. Larki

n , 421 U.S. at 47, 95 S. Ct. at 1464; General Motors Corp. v. Capitol Chevrolet Co. , 645 S.W.2d 230, 235 (Tenn. 1983). 5

Mr. Martin neither cl aimed nor proved

that any mem

ber of the Boar

d should be disqualified for personal interest bias, personal prejudice against him, or prejudgment of the material facts in the

case. Accordingly, to overcome the presumption of hone

sty and impartiality accorded to members of administrative agencies, it was incumbent upon Mr. Martin to come forward with evidence of specific acts, either by the Board members themselves or by members of their staff, that would cause

a reasonable person to question the Board’s impartiality. Merely pointing out that

the prosecuting lawyer provided the Board with legal advice and services regarding unrelated ma tters does not suffice. Mr. Martin has neither claimed nor proved that any Board member has initiated or received

ex parte communications about the chargesagainst Mr. Martin or has engaged in any sort of similar conduct t hat would undermine the fairness of the proceeding. Therefore, we conc lude that Mr. Martin has failed

to rebut this presumption that the members of the Board performed their duties in good faith and in accordance with the law. Having failed to rebut this presumption, Mr. Martin’s procedural due

process claim must

fail.

III. T HE E VIDENTIARY S UPPORT FOR M R . M ARTIN ’ S S USPENSI ON

The State raises one issue on this appeal. It asserts that the trial court erred by

concluding th at the Board’s decisi

on to suspend Mr. Ma

rtin’s certifica

te of registra

tion lacks adequa

te evidentiary

support. We have c

oncluded that the t

rial court was co

rrect with regard to a ll but a portion of one project be

cause the Department, for

the most part, failed to introduce expert testimony regarding two essential elements of its case – the standards of professional practice applicable to Mr. Martin’s conduct and how Mr. Martin’s conduct fell below this standard.

A.

The growth in thenumber of administrative boards and agencies h as been one of the

most significant

legal trends in the last century. FTC v. Ruberoid Co. , 343 U.S. 470, 487, 72 S. Ct. 800, 810 (1952) (Jackson, J., dissenting). Much of the impetus for this growth has been a de sire t o develop efficient regulatory mechanisms for activities which, because of their technical nature, are notreadily amenable to direct legislat ive or judicial oversight. Thus, one of the fundamental-10-

premises upon which administrative law is built is that the quality and efficiency of the regulatory processwill b e enhanced by entrusting decision-making authority to experienced, expert administrators. Rolfe v. Psychiatric Sec. Review Bd. , 633 P.2d 846, 852-53 (Or. Ct. App. 1981).
Using expert decision-makers is not the only key ingre dient of administra

tive proceeding

s. The minimum requirements of due process must also besatisfied whenan agency ’s decision could adversely affect vested

property in

terests or other c

onstitutional righ

ts. While due process does not dictate particular proc

edures that must

be used in every instance, Estrin v. Moss , 221 Tenn. 657, 676, 430 S.W.2d 345, 353 (1968), at a minimum, administrative proceedings must afford affected parties (1) adequate notice, McClellan v. Board of Regents , 921 S.W. 2d 684, 688 (Tenn. 1996); (2) an opportunity for a hearing at a meaningful time andin a meaningful manner, Haywood v. State Bd. of Educ.
, 874 S.W.2d 6 7, 72 (Tenn. Ct. App . 1993); Mid-South Indoor Horse Racing, Inc. v. Tennessee State Rac ing Comm’n , 798 S.W.2d 531, 540 (Tenn. Ct. App. 1990); and (3) an opportunity

to obtain judicial review of the board’s or agency’s decision. St. Joseph Stock Yard Co.

v. United States , 298 U.S. 38, 84, 56 S. Ct. 720, 740 (1936); Public Serv. Comm ’n v. General Tel. Co. , 555 S.W.2d 395, 402 (Tenn. 1977); Bernard Schwartz, Administrative Law Cases During 1996
, 49 Admin. L. Rev. 519, 536-37 (1997).

The Uniform Administrative Procedures Act addresses each of these requirements in the context of contest ed case proce edings to revoke or suspe nd professional li

censes. Tenn. Code Ann. § 4-5-320(c) (1998) requires written notice prior to c o mmencing an admi nistrative proce

eding to revoke or suspend a license. Tenn. Code Ann. §§ 4-5-102(3), -312 (1998) provide for contested case proce e dings in which the partie s have an opportun

ity to respon

d to the charge

s against them, to present evidenc e and ar gument, to conduct cross-examination, and to submit rebuttal evidence. Likewise, Tenn. Code Ann. §§ 4-5-322, -3 23 (1998) provide for judic ial review of dec

isions in contested cases

as of right at bot

h the trial and app

ellate level.

B.

The State has the burden of proving one or more of the statuto ry grounds for revoking or suspending an architect’s certificate of registration. Estrin v. Moss , 221 Tenn. at 677, 430 S.W.2d at 354 (placing the burden of proof in a disciplinary proceeding on the State). Thus, it is incumbent

on the State to establi

sh by substan

tia l and material evidenc

e one or more of th

e grounds listed i

n Tenn. Code Ann. § 62-2-308 (a)(1) . These statutory grounds do not ne

cessarily require the same types of evidence. Some of th e grounds ma

y involve conduct and issues easily understood by persons who are not

themselves registered

architects. However, other grounds may requir e expert testimonybecause they inv ol ve technical issues beyond the common knowledge, experience, and understanding o

f persons who are

not registered

professionals.

For example, Tenn. Code

Ann. § 62-2-308(a

)(1)(D) permits

r evok ing or suspending an architect’s certificate of registration if a court of competent jurisdiction determines that the architect breached a con tra ct f or p rof ess ion al s ervi ces. Dis cip lin ary a ction und er this statute could be triggered simply by introducing court papers concluding that an

architect breached his or her contract for professional ser

vices. No expert te

stimony is nec

essary in th

is circumst

an ce because persons who are not registered design profes sionals will be able to decide whether a court of competent jurisdiction has determinedthat an architect breached his or her contract for pr

ofessional servi

ces.6 This statute provides one of the grounds for the Board’s discipli nary action against Mr. Martin.

7 The Board’s rul

es of professional con

duct can be

found at Tenn. Comp. R. & Regs . r. 0120- 2-.01, t hrough -. 09 (1999).

8 This rule provides one of the grounds for the Board’s disciplinary act ion against Mr. Martin.

9 This rule provides one of the grounds for the Board’s disciplinary act ion against Mr. Martin.

-11- Sim ila rly, Tenn. Code Ann. § 62-2-308(a)( 1)(F), permits d isciplinary

action if another

state
or national registration board has suspended or revoked an architect’s right to prac tice. Charges basedon this statut e do not requ ire expert testimony because all that is required is competent

e vidence that another state or national registration board has suspended or revoked an architect ’ s certificate of registration. A decision-maker need not be a registered d esign professional to be able to understand whe

ther another jur

isdiction has take

n disciplinary

action against a

n architect.

On the other hand, several statutory grounds for disciplining an architect

require kno wledge notnormally possessed by persons who are not design professionals themselves. These grounds, as a general matt er, require k nowledge and understanding of the applicable standards of professional conduct. For example, Tenn. Code Ann. § 62-2-308(a)(1)(B) 6 permits the revocation or suspension of a certificate of registration for “gross negligence, incompetency , or misconduct in the practice of architecture.” Thi s ground, a s a general matter, requires knowledge and understanding of the applicable

standards of professional conduct for architects and an ability to deter mine wh ether particular conduct falls below these standards.

Sim ila rly, Tenn. Code Ann. § 62-2-30 8(a)(1)(E) permits disciplinary action against an architect or eng ineer for viol ating the Boar d’s rules of prof

essional conduct. 7 Tenn. Comp. R. & Regs. r. 0120-2-.02(1) & (2) 8 require archit ects to protect the heal

th, safety, and welfare of

the public by reporting a client’s or a contractor’s decision to violate applicable federal, state, or loc al building laws or regulations. Determining whether the actions of a client or contra

ctor are inconsi

stent with buil ding laws and regulations requires specialized knowledge not ordinarily possessed by lay persons. Accord

ingly, expe

rt testimony i

s necessary

to establish a violation of Tenn. Comp. R. & Regs. r. 0120-2-.02(1) & (2).

The same can be said f

or Tenn. Comp. R.& Regs. r. 0120- 2-.03 that requir

es architects to limit their practices to areas in which they are “compe tent.” 9 An architect ac

ts outside his or her

areas of competence if he or she commits “malprac

tice” which is

defined as “reckless, or excessive errors, omissions or building failures in the registrant’s rec ord of prof essional practice.” Tenn. Comp. R. & Regs. r. 0120-2-.03(6)(a). Determining whether an architect has acted

“in com pet ent ly”

or has committed “malpractice” or has made “exce ssiv e errors” requires expert knowledge of the practiceof architec ture not normal ly possessed b y persons who ar e not regist ered design professionals

themselves. Thus, establishing a violation of Tenn. Comp. R. & Regs. r. 0120-2-.03 requ ire s ex pert tes tim ony.

C.

Wh en admi nistrative proceedings involve issues requiring professional knowledge and expertise, the question becomes who may provide this expertise. Some administrative boards and-12-

agencies have been quick to respond that the board members themselve

s may supply

this expertise because, after all, they

were appointed to the board or agency bec ause of their expertise and standing in their chosen prof

ession. See Charles A. Reich, The Law of the Planned Society , 75 Yal

e L.J. 1227, 1242 (1966). Most courts, including this court, have adopted another view.

The expertise of membe

rs of boards and c

ommissions undoubted

ly play s a c entral role in administrative proceedings. C ourts customarily

defer to adjudic

atory dete

r minations made by administrative agenci es acting within their area of specialized knowledge, experience, and expertise. Southern Ry. v. State

Bd. of Equalization , 682 S.W.2d 196, 199 (Tenn. 1984); Willamette Indus., Inc.

v

. Tennesse e Assessment Appeals Comm’n , 11 S.W.3d 142, 147 (T enn. Ct. App. 1999) ; Wayne County v. Tennessee Solid Waste Disposal Control Bd. , 756 S.W.2d 274, 279 (T enn. Ct. App. 1988). Acco rdi ngly, the courts do not substi tute their own judgment for tha t of a board or ag

ency with regard to the weight of the eviden ce. Sanifi ll of Tenn., Inc. v. Tennessee Solid Waste Disposal Control Bd. , 907 S.W.2d 807, 810 (Tenn. 1995 ); Sanfo rd v. Tennessee D ep’t of Env’t & Conservation , 992 S.W.2d 410, 413-14 (T enn. Ct. App. 1998) ; Ware v. Green , 984 S.W.2d 610, 614 (Tenn. Ct. App. 1998).

It is one thing for a board or agency to use its expertise and experience to understand and evaluate the complexities of the techn ical evidence presented by the parties. I

t is, however, quit

e another thing for the members of the board or agency to rely

on their own expertise as a substitute for expert testimonynot presented during the contested case hearing. Permitting board members to fill this evidentiary

void created by the absence of key expert testimony seriously compromises the fairness of admin

istrative procee

dings in four fun

damental way

s.
First, persons facing

the loss or suspensi

on of their profe

ssional license

in acontested case proceeding ha

ve the right to

confront, cross-examine, and rebut the evidence against them. Tenn. Code Ann. § 4-5-312(b). They have these rights even whe n the board or agency takes official notice of technical or scientific matters. Tenn. Code Ann. § 4-5-313(6). When no other expert testimony has been presented, permitting individual board members to rely on their own expertise dilutes the effectiveness

of these rights b

ecause board members cannot be cross-examined and because board members’ opinions may not be known. Thebaut v. Georgia Bd. of Dentistry , 509 S.E.2d 125, 132 (Ga. Ct. App. 1998); In re Schramm , 414 N.W.2d 31, 35 (S.D. 1987); B ernard Schwar tz, Administrative Law § 7.13, at 399 (3d ed. 1991).

Se cond, an administrative agency’ s fact-finding

must be limited to evid ence properly includedin the administrative record. The record serves as the “exclusive basis for agency actions in adjudicative proceeding s.” Tenn. Code Ann. § 4-5-319(d). When the administrative record contains no other expert testimony, allowing the board members to base their decision on personal knowledge and opinions, especially when they are not reflected in therecord, is contrary to this “exclusiveness”

principle. As Professor Schwartz has noted, “[w]ithout the exclusiveness principle, the right to be hear

d is a right only to present one side of the case. The hearing itself

becomes only

an administrative town meeting rather than the adversary proc eeding required by due process.” Bernard Schwartz, Administrative Law § 7.13, at 397; see also Rolfe v. Psychiatric Sec. Review Bd.
, 633 P. 2d at 853.10 Tenn. Code Ann. § 62-2-201 (b).

11 Tenn. Code Ann. § 62-2-201 (a)(2).

-13- Third, many administrative boardsand agencies a re no longer co

mprised solely

of persons withexpertise in

the regulated field or profession. Many administrative bodies are now required to have one or more lay members who, by de finition, have no exp

ertise in the field or profession regulated by the board. In addition, other boards and ag encies regulate broad

areas of professional activity making it

difficult, if not un

likely, that a

ll board members w

ill possess expertise in each of the professions or activities within the board’s jurisdiction. In these circumstances, expert testimony regarding the standard of care and the breach of the standard of care a re necessary in order

to enable the boar d memb ers lacking expertise in the profession at issue to perform their adjudicatory responsibili

tie s. Thebaut v. Georgia Bd. of Dentistry , 509 S.E.2d at 132; In re Schramm , 414 N.W.2d at 36.

The composition of

the Board of Examiners for Architects and Engineers demonstrates the necessity of expert testimony. Of the Boar d’s nine members, onemust be a lay person who is not licensedin any

of the professions regulated by the Board, 10 three must be registered architects, three must be registered engineers, one must be a registered landsc ape arch itect, and one must be a registered interior designer. 11 Accordingly , it is quit e possible

that, in a disciplinary proceeding invol ving an architect, a majority of the Board will lack sufficient expertise to have a per sona l understanding of the applicable standards of pro fessi onal p racti ce for a part icula r prof essio nal. In this circumstance, e

xpert testimony

regarding th

e applicable sta

ndards of profe

ssional conduct is necessary to enable the board members who are unfamiliar with the applicable standard of practice to discharge the

ir adjudicatory

responsibilities. Wit

hout this evidence

, the non-expert b

o ard members will be faced with the choice of either basing the ir deci sion on their own uninformed notions about the applicable professional standards or deferring to board members who possess the necessary expertise. Either

choice runs counter to the premise that regulatory boards can fairly and efficiently regulate professional endeavor s.

Fin all y, permitting board members to substitute their own expert opinions for necessary experttestimony under

mi nes the ability of reviewing courts to determine whether the ag ency’s deci sion is based on substantial and material evidence. Tenn. Code Ann. § 4-5-322(g) confines reviewing courts to the conte nts of the administr

ative record. D

etermi ning wheth

er an agency’s decision is supported by substantial and material evidence is di fficult enoug h when the subject matter of the hearing is no

t in an area of one ’s own education a nd experience. Th

e task becomes imp

ossible when only one pan of the evidentiary sca les is filled. Chase v. Department of Prof’l Regulation , 609 N.E.2d769, 774 (Ill. App. Ct. 1993). Reviewing courts are not mind readers. When the record contains little or no evidence regarding the applicable professional standards, the courts cannot, by tel epat hy, determine the factual basis for the board’s decision. Thebaut v. Georgia Bd. of De

ntistry , 509 S.E.2d at132; Smith v. Department of Registration & Educ. , 106 N.E.2d 722, 730-31 (Ill. 1952). Disciplinary actions based on a registrant’s deviation from professional practice standards require experttes tim ony o f these standards, as well as the deviations from these standards. Without evidenceof this sort, j udicial review would be “lost in a haze of so-called expertise,” and “[a]dministrative expertise would then be on its way to becoming ‘a monster which rules with no practical limitations on its discretion.’” Baltimore & Ohio R. Co. v. Aberdeen & Rockfish R.Co. , 393 U.S. 87, 92, 89 S. Ct. 280, 283 (1968) ( quoting Burlington Truck Lines v. United States , 371 U.S.12 Hake v. Arkansas State Med. Bd. , 374 S.W .2d 173 , 175-76 (Ark. 196 4); Franz v. B oard of M ed. Qua lity Assurance , 642 P.2 d 792, 7 98-99 (C al. 1982 ); McKay v. State Bd . of Med. Exa m’rs , 86 P.2d 232, 236 (Co lo. 1938); Thebout v. Georgia Bd. of D entis try , 509 S.E .2d at 132 -33; Woodfield v. Board of Prof’ l Disci pline , 905 P.2d 1047, 1057 (Idaho C t. App. 19 95); Chase v. Depart ment of Prof’ l Regulati on , 609 N .E.2d at 7 74-75; Medical Lice nsing Bd. v. Ward , 449 N.E.2d 1129, 1141- 42 (Ind. Ct. App. 1 983); Board of D ental Exam ’rs v. Brown , 448 A.2d 881, 884- 85 (Me. 1982); Cobble v. Co mmissioner o f Dep’t of Social Se rvs. , 719 N .E.2d 50 0, 508 (M ass. 1999 ); New Jer sey State Bd. of Optom etrists v. Nem itz , 90 A.2d 740, 745-46 (N.J. Sup er. Ct. App . Div. 195 2); In re Wil lia ms , 573 N.E.2d 638, 640 (Ohio 19 91); C. F. Braun & Co. v. Corporation Comm ’n , 609 P.2 d 1268 , 1272-7 3 (Okla. 1 980); Drew v. Psychia tric Sec. Rev. Bd.
, 909 P.2 d 1211 , 1214 (O r. 1996) ; In re Schr amm , 414 N.W.2d at 35-37; Dotson v. Texas S tate Bd. of Med. Exa m’rs , 612 S.W .2d 921 , 923-24 (Tex. 19 81); Gil bert v. St ate of Wis consin, Med. Examining Bd. , 349 N.W.2d 68, 81-8 4 (Wis. 1 984); see also In re Com m’n’s Investigation of Rates for Gas S erv. of PNM’s G as Servs. , 998 P.2d 1198, 1 202 (N .M. 200 0); Railroad Comm’n v. Lone Star Gas Co. , 618 S.W.2d 121 , 124-25 (Tex. Civ. App. 1981); but see Ferguson v. Hamrick , 388 So. 2d 981, 983 (Ala. 198 0); Croft v. Arizona Sta te Bd. of Denta l Exam’rs , 755 P.2d 1191, 1197 (A riz. Ct. App . 1988); Levinson v. Co nnecticut Bd. of C hiropractic Exa m’rs , 560 A.2d 403, 411-15 (C onn. 1989); Hebert v. Louisiana Racing Com m’n , 476 So. 2d 823, 825 (La. Ct. App. 1 985); Siller y v. Board of Med. , 378 N.W.2d 570, 573 (M ich. Ct. App . 1985); State Bd. of Chiro practic Exam ’rs v. Clark , 713 S.W .2d 621 , 628-29 (Mo. C t. App. 1986); In re Beyer , 453 A.2 d 834, 8 37 (N.H . 1982); Lahey v. Nort h Carolina Bd. of Nursing , 488 S.E.2d 245, 248 (N.C. 1997); Kundr at v. Com monw ealth
, 447 A.2d 355, 358 (P a. Comm w. Ct. 198 2); Davids on v. State , 657 P.2d 810, 812 (W ash. Ct. App . 1983).

-14- 156, 167, 83 S. Ct. 239, 245 ( 1962)); see also Theba ut v. Georgia Bd. of Dentistry , 509 S.E.2d at 132; Chase v. Department of Prof’l Regulation , 609 N.E.2d at 774; In re Schramm
, 414 N.W.2d at 36-37.

We take this occasio n to hold again tha

t when a professi

onal’s license

is atstake, competent experttestimony must be introduced if the issues in the administrative proceeding require establi shing the applicable standards of professional conduct and determining whether particul a r conduct fell below these standards. Williams v. Tennessee Bd. of Med. Ex am’rs , No. 9 2-337 2-I, 1994 WL 420910, at *8 (

Tenn. Ct. App. Aug. 12, 1994) (No Tenn. R. App. P. 11 application filed). Requiring the introduction of expert testi

mon y i n cases of this sort protects the fairness of the contestedcase pr oceedings , the integrity of the administrative record, and the right to meaning ful judicial review of adminis trative decisions

. If expert testimony is not presented, the individual board members cannot fill the void by silently falling back on their own une xpr essed and uncrossexamined experience and expertise. By impos ing the requirement of expert testimony regarding standards of conduct and the breach of these standards,

we align oursel

ves with the majori

ty of courts in other jurisdictions that have addressed this question. 12

D.
Requiring experttestimony to establish the applicable standards of professional conduct and the breach of th

ese standards does not end the inquiry. Two

issues remain. We h

ave yet to determine whether there are exceptions to the rule requiring expert opinions regarding the issue of professional negligence.

We must also

address the general principles governing the qualification of expert witnesses. The general rules used in professional malp

ractice cases

provide an appro

priate framework for a

ddressing these

issues.13 Contested case proceedings are not governed excl usively by

the Tennessee

Rules of Evidence. Tenn. R. Evi d. 101 ad v. comm’n cmt. How ever, the rules o f evidence m ust be followe d excep t when it is necessa ry for the agenc y to “ascertain facts

not reas onably su sceptibl e to proof

under the rules of

court.” In thi s circu

mstance, evidence n

ot otherwise admissible un der the Tennessee Rules of Evidence may be admit ted in an administrative proceeding “if it is of a type commonly relied upon by reasonable prudent men [or women] in the conduct o f their affairs.” Tenn. Code Ann. § 4-5-313 (1) (199 8); Rayder v. Grunow , No. 91-3570-I, 1993 W L 95561, at *2-3 (Tenn. Ct. App. Apr. 2, 1993)(No Tenn. R. App. P. 11 application filed); Rivers v. T ennessee Bd . of Dentistry , No. 01A01-9111-CH- 00409, 1992 WL 146709, at *6 (Tenn . Ct. App. June 30, 1992), perm. app. denied (Tenn. Oct. 19, 1992). By definition, expert test imony regarding the standards of prof essional conduct

involves matt

ers that ar

e beyond the common understa nding of lay persons an d are quite e asily susceptible to proof un der the rules o f court.

-15- 1. The Common Knowledge Exception

Tennessee’s courts have held repeatedly

that determining whether a professional’s conduct complies with the appl icable sta ndard of care is

beyond the c

ommon knowledge

of lay pers

ons. Moon v. Saint

Thomas Hosp. , 983 S.W.2d 225, 229 (Tenn. 1998) (medical malpra ctice); Lazy Seven CoalSales, Inc. v. Stone & Hinds, P .C. , 813 S.W.2 d 400, 406 (Tenn. 1991) (legal malpractice). T hus, expert testimony

is required to esta

blish not only t

he applicable sta

ndard of care b

ut also whether the conduct at

issue fell below th

at standard. Exper

t testimony ca

nnot be dispensed w

ith unless the professional’s lack of skill or care is so apparent as to be in the comprehension of a lay person and requires only common knowledge and experience to understand it. Seavers

v. Methodist Med. Ctr. , 9 S.W.3d 86, 92 (Tenn. 1999) ( medical malprac

tice); Cleckner v. Dale
, 719 S.W.2d 535, 540 (Tenn. Ct. App. 1986) (legal malpractice).

The “common knowledge exception” developed in professi onal liability cases is equally applicable

to administrative disci plinary pro ceedings such as this one. Thus, expert testimony regarding the applicable standard of care and the breach thereof may be dispensed with w

hen the acts of professional negligence

are so obvious that they come within the common knowledge of lay persons. Murphy v. Schwartz , 739 S.W.2d 77 7, 778 (Tenn. Ct. App. 1986) (holding that the negligence

must be so obvi ous that “ all mankind knows that such things are not done absent negligence”); Ayers v. Rutherford Hosp., Inc. , 689 S.W.2d 155, 160 (Tenn. Ct. App. 1984). As one court has put it, th

e profess ional negligence must be “as plain as a fly floating in a bowl of buttermilk” to trigger the common knowledge exception. German v. Nichopoulos , 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978). Thus, the common knowledge exception does not apply when under standing the alleged pro fessional negli

gence requir

es scientific or t

echnical analy

sis o r discussion. Seavers v. Meth odist Med. Ctr. , 9 S.W.3d at 92.

2. Qualifications of Expert Witnesses

T he Tennessee Rules o

f Evidence provi

de the genera

l rules governin

g the qualif

ication o f experts called to testify

in administrative d

isciplinary

hearings such a

s this o ne. 13 In thi s regard, Tenn. R. Evid. 702 provides that evidence inv olving scientific, technical, or other specialized knowledge may be presented by “a witness qualified as anexpertby knowledge, skill, experience, training, or education.” To qualify as an expert under Tenn. R. Evid. 702, a witness should have a “thorough knowledge of the subject matter of his or her testimony,” Otis v. Cambridge Mut. Fire Ins.14 Tenn. C ode Ann . § 29-26 -115(b) provides , in part, that

No person in a h ealth care pr ofession req uiring licensure u nder the laws of this state shall be competent to testify i

n any court of law to establish the fac ts requi red to be es

tablis hed by subs ection (a), unless

the pers on was licensed to practice in th e state or a co ntiguous bo rder state a profess ion or specialty which would ma ke the perso n’s expert testim ony relevan t to the issues in the ca se . . ..”

Another panel of this court has sta ted in dicta that th e same loc ality rule that applies to physi cians also applies to lawyers giving expe rt opinions in le gal malprac tice cases. Underwood v. Waterslides of Mid-America, Inc. , 823 S.W.2d 171, 182-83 (Tenn. Ct. App. 1991). Howev er, while the cases relied upon by the court require the expert to have knowledge of the standard of professional care in t he jurisdiction wh ere the defen dant prac tices law, Spalding v. Davis , 674 S.W.2d 710, 71 4 (Tenn . 1984), overruled on other grounds
, Mead ows v. Sta te , 849 S.W .2d 748 , 752 (T enn. 199 3); Cleckner

v. Dale , 719 S.W.2d at 540, they do not condition the witness’s ability to testify as

an expert on being licensed in the
same stat

e or a conti

guous st ate for at leas

t one year

by the t ime the a

lleged l egal malpr

actice oc curred.

15 Bartak v. Bell-Ga lyardt & Wells, Inc. , 629 F.2d 523, 530 (8th Cir. 1980 ); McKee v. City of Pleasant

on , 750 P.2d 1007, 1011 (Kan. 19 88); Pritchard Bros., I nc. v. Grady Co. , 436 N.W.2d 460, 46 5 (Minn . Ct. App. 1 989); Overland Constructors v. Millard S ch. Dist. , 369 N.W.2d 6 9, 75-76 (Neb. 1985); Wedlock v. Troncoso , 712 N.Y.S.2d 328, 332 (Sup. Ct. 2000 ); Demp sey v. Intern ational A ss’n of Brid ge, Structu ral & Ornamental Iro nworkers , No. 03A01-9709- CV00436, 1998 W L 2540 17 at *9 (T enn. Ct. Ap p. May 1 9, 1 998), perm. app. deni ed (Tenn. N ov. 2, 199 8); Nelson v. Virginia , 368 S.E .2d 239 , 243-44 (Va. 198 8); Garaman v. Wi lli ams , 912 P.2d 1121, 112 3 (Wyo. 1996).

16 H. Elton Thompson & Ass ocs. , P. C. v. Wil lia

ms , 298 S.E.2d 539,

540 (Ga. Ct. Ap p. 1982 ); M.J. Womack, Inc. v. House of Represent atives , 509 So. 2d 62, 65-66 (La. Ct. App. 198 7).

-16- Co. , 850 S.W.2d 439, 443 (Tenn. 1992), and some special as wellas practical acquaintance with the immediate line of inquiry. Powers v. McKenzi e , 90 Tenn. 167, 181, 16 S.W. 559, 562 (1891).

In addition to the general qualification for expert witnessesin Tenn. R. Evid. 702, additional specific qualifications to

give expert testimony

may be imposed by statute or the common law. For example, witnesses called to give expert tes

timony in medic

al malpractic

e c ases must satisfy the “locality rule” in Tenn. Code Ann. § 29-26-115(b) (2000). 14 These specific q ualifications app

ly only to the p rofessio ns specifically covered by the statute or the common-law rule. Underwood v. Waterslidesof Mid-America, Inc. , 823 S.W.2d at 183 (holding that the requirement in Tenn. Code Ann. § 29-26-115(b) th

at an expert be fa

miliar with the loca

l st an dard of care do

es not apply t

o engineers and contractors).

3. Possession of an Architectural Degree or Certificate as a Necessary Qualification

The practice of architecture, as we have alr

eady noted, is sufficiently technica l to require experttestimony to establ ish t he applicable standard of professional practice and any departure therefrom. 15 As with other professions, this gener a l rule is su bject to th e common kn owledge exception. 16 Ord ina ril y, evidence regarding professional standards takes the form of testimony by witnesses who are in the s ame professio n or trade. However, nothing in Tenn. R. Evid. 702 p recludes the introduction and consideration of expert testimony by a witness whose prof es sio n differs from the one at issu e, as long as the

witness can testif

y authorita

ti vel y r egarding the17 We are aware of the opinion of this court predati ng the promulgation of the Tenness ee Rule s of Evidence holding that

physicians sho uld not be p ermitted to offer expert testimony regarding a nurs e’s standard of

care and that off ice nurs es should no t be permitte d to offer exp ert testimony reg arding a ph ysician’s standar d of care. Crowe v. Provost , 52 Te nn. App. 3 97, 413 , 374 S.W .2d 645 , 652 (19 63). M ore recen tly, we sidestepp ed this issue whe n we held that a physician’s test

imony regarding a nurse’s stand ard of care was cumula tive and, eve n if error, harm less. Evans v. Cocke County Baptist Hosp. , No. 60, 198 7 WL 17976 , at *2 (Tenn . Ct. App. O ct. 7, 1987 ), perm. app. denied(Tenn. Dec. 21, 198 7). The Tennessee Rules of Evidence appear to have undermined the continuing precedential value of the Crowe v. Provo st case; however, we do not have that question squarely before us here. The most appropriate inquiry should be whether the witne ss is suffici ently familiar with the applicable standard of care to make his or her expert opinion relevant to the issue

in question. Cardwell v. Bechtol , 724 S.W .2d 739 , 754 (T enn. 198 7); Searle v. Bryant , 713 S.W.2d 62, 65 (T enn. 1986).

18 But see Brennan v. St. Louis Zoological

Park , 882 S.W .2 d 271, 2 73 (M o. Ct. App . 1994); Prellwitz v

. Cromwell, Truemper, Levy, Parker , and Woodsmale, Inc. , 802 S.W .2d 316 , 318 (T ex. App. 1 990).

-17- applicable

standard of care and can explain how the conduct at issue breaches this standard. 17 In circumstances where various professions are competent to work in a particular

field, the competence of experts should be judged by whether they meet the minimum standards for that particular field.

A majority of jurisdictions that have considere d the question have held that an expert witness’s competence should not be judged solely on the p articular deg

ree or professi

onal license he or she holds. Yantzi v. Norton , 927 S.W.2d 427, 431 (Mo. Ct. App. 1996); Southland Lloyd’s I ns. Co. v. Tomberlain , 919 S.W.2d 822, 827 (Tex. App. 1996). 18 Accordingly, as long as the activity at issue is not unique to architects, Nati onal Cash R egister Co. v. Haak , 335 A.2d 407, 411 (Pa. Super. Ct. 1975), the courts have permitted witnesses without an architectural degree or license to give expert testimony regarding the standard of professional practice to which the architect should be held. Perlmutter

v. Flickin

ger , 520 P.2d 596, 597-9 8 (Colo. C t. App. 197 4) (permitt ing a chemical engineer who designed skylights and a c ontractor who installed skylights to testify regarding an architect’s standard of care for designing

the skyligh

ts); Pritchard Bros., Inc. v. Grady Co. , 436 N.W.2d at 466 (permitting a professional estimator and certified engineering technician

to testify regarding the standard of care applicable to architects who r eview shop drawings, BrushtonMoiraCent. Sch. Dist. v. Alliance Wall Corp. , 600 N.Y.S.2d 511, 512 (App. Div. 1993) (permitting

a civil engineer specializing in the design and evaluation of wall syste ms to give an expert opinion

concer ning th e standard of ca

re applicable to

architects desig

ning walls); National Cash Register Co.

v. Hoak , 335 A.2d at 411 (permitting a geologist and an engineer specializing in hydraulics to give expert testimony regarding an architect’s design of a surface water distribution system); Wessel v. Erickson Landscaping Co. , 711 P.2d 250, 254 (U tah 1985) (permit

ting a structura

l engineer with experience in designing re taining walls to g

ive expert testimony

regarding a

n archit ect’s st andard of care for designing retaining walls). Deci sions exlcu ding the testimony of experts who are not architects generally hinge not on whether the witness possesses the correct degree or professional license, but rather on the expert’s lack of relevant experience o r training, W

alker v. Bluffs Apartments , 477 S.E.2d 472, 473 ( S.C. Ct. App. 1996), or

on the witness’s la

ck of familiarity

with the applicable standards of professional conduct . H. Elton Thompson & Assocs., Inc. v. Williams
, 298 S.E.2d at 540.

We have co nc luded that a person need not possess either a degree in architecture or an architect’s certificate to be qualified to testify as a

n expert regard

ing the standard

of care of arc

hitects

an d whether particular conduct violates that standard. The witness’s qualifications should be evaluated in accordance with Tenn. R. Evid. 702. Accordingly, witne s ses should be permi

tted to-18-

give expert opinions regarding an architect’s conduct if they posse

ss scientific, technical, or other specializedknowledge derived from their knowledge,skill, experience, training, or education that will substantially assist the trier of fact to understand the evidence or to determine a fac t in issue.

E.

We will now employ these principles to evaluate the evidence rega rding Mr. Martin’s conduct in connectionwith the four projects at issue. In order to sustain the Board’s decision, we must find that the record

contains substantial and material evidence supporting the Board’s decision. Like the trial court, we have determined that the administrative record, while voluminous, does not contain substantial and material evide nc e supporting the Board’s conclusions that Mr. Martin’s conduct in all of the four projects at issue fell below the applicable standard of care for architects and that his plans for th

ese projects con

tained excessive e

rrors.

1. Standard of Review

Judicial review of decisions by administrative agencies following

contested case h

earings is governed by the Tennessee Uniform Administrative Procedures Act. Tenn . Cod e Ann. § 4-5- 322(a)(1). Trial and appella te courts use

the same standard of review. Gluck v. Civil Serv. Comm’n
, 15 S.W.3d 486, 490 (Tenn. Ct. App. 1999); Ware v. Greene , 984 S.W.2d at 614. When the factual support for an administra

tive decision is ch

allenged, the c

ourts mu st examine the entir e record to determine whether

the decision is supported by substantial and material evidence. Tenn. Code Ann. § 4-5-322(h)(5).

The substantial and material evidence standard requires a searching and careful inqu

iry into the record to determine the basis for the administrative decision. Sanifi ll of Tennessee, Inc. v. Tennessee Solid Waste Dispos al Control Bd. , 907 S.W.2d at 810 ; Willamette Indus., Inc. v. Tennessee Assessment Appea ls Comm’n , 11 S.W.3d at 147. I n these cases, the

courts do not rewei gh the evidence or substitute their judgment for tha t of the adm ini str ati ve ag ency. McClellan v. Board of Regents , 921 S.W.2d at 693; Humana of Tenness ee v. Tenn

essee He alth Facil ities Comm 'n , 551 S.W.2d 664, 667 (Tenn. 197 7); Jackson M

obilphone Co., Inc. v. Tennes

see Pub. S

erv. Comm 'n , 876 S.W.2d 106, 111 (Tenn. Ct. App. 1993). Instead they review the record for such relevant evidence

as a reaso nable mind might accept to support a rational conclusion and such as to furnish a reasonably

sound basis for the action under consideration . Clay County Manor, Inc. v. State , 849 S.W.2d 755, 759 (Tenn. 1993); Southern Ry. Co. v. State Bd. of Equalization , 682 S.W.2d at 199 ; Papachristou v. University of Tennessee , 29 S.W.3d 487, 490 (Tenn. Ct. App. 2000).

We may not reverse an administrative deci sion supported by substantial and material evidencesol ely

because the evidence could also support another result. Hughes v. Board of Comm'rs , 204 Tenn. 298, 305, 319 S.W.2d 48 1, 484 (1958); Metropolitan Gov’t v. Tennesse e Solid Waste Disposal Control Bd. , 832 S.W.2d 559, 561 (Tenn. Ct. App. 1991). Courts may reject an administrative agency'

s f actual find ings only if a reasonable person would necessarily draw a different conclusion from the record. Jones v. Greene , 946 S.W.2d 817, 828 (Tenn. Ct. App. 1996).19 Mr. Whitaker also opined that Mr. Martin’s drawings were not the cause of the collapse of the structure.The

issue of caus ation, however, has litt le relevance i

n this case

. -19- 2. The Timbers Lodge and Old Village Shops Project

The first project at issue involved a three- stor y motel and commercial building in Pigeon Forge containing thirty-one rooms and approximately 4,500 square feet of office space. Mr. Marti

n completedthe architectural, structural, mechanical, plumbing, and elect rical drawings for the project in March 1987. On April 20, 1987, the structure co llapsed while wor

kers were instal

ling pre-cast

concre te floors and walls on the steel framework. Among the issues in the ensuing litigation was whether the collapse was caused by shortcomings in Mr. Martin’s plans or by the negligence of the erector of the pre-cast concrete members. During this lawsuit, one of Mr. Martin’s competitors who hadbeen retained a

s an expert witness

by the owner demand

ed that the Boar

d discipline Mr. Ma

rtin because of his pe

rformance on thi

s project.

With regard to this project, the State alleged (1) that Mr. Martin was not competent to prepare the structural, mech

anical, plumbing, and electrica l drawings;(2) that th e drawings co ntained des ign deficiencies and violations of appli cable safety cod es; and (3) t hat the str uctural dra wings “contributedto the collapse of the project structure on April 20, 1987.” To prove th ese allegation

s, the State called James Coykendall, the architect who had initially complained about Mr. Martin’s plans. WhileMr. Coykendall asserted that there were ten serious deficienc ies in Mr. Martin’s work

on this project, his mos

t serio us claims we re: (1) that Mr. Ma rtin had breache

d the applicable standard of care by fa

iling to specify

in the structural p

lans the method of a

ttaching the pre

-cast concrete to the stru ctural stee l beams and b y permitting t he steel fab ricator to desig n these connections;

(2) that Mr. Martin fail ed to specif y fire protecti on ratings on the p lans; (3) that the plans did not include the exit lights, emergency lights, and fire

alarms required

by the safe

ty codes; and(4) that Mr. Martin should not have undertaken to design a project of that size himself. He also asserted that the “quality” of Mr. Martin’s drawings was not “a cceptable.”

On cross-examination, Mr. Coykendall conceded that he was unaware when he criticiz ed Mr. Martin’s plans for being inconsistent with the local building codes that Mr. Martin had obtained a variance with regard to four of the issues he had raised. He also undermined his own conclusions about the adequacy of Mr. Martin’s structural drawings when he conceded that he lacked expertise in this area. Considering Mr. Coykendall’s testimony in its entirety , his only material points worthy of consideration by the Board are that Mr. Martin’s plans for this project weredeficient because (1) the fire protection ratings were not specified or detailed , (2) th ey did not include exit lights or emergency

lighting, and (

3) they did no

t provide for fire

alarms.

In addition to his own testimony, Mr. Martin presented two experts to re spond to Mr. Coykendall’s criticisms of his work . Robert L. Whitaker, a structural engineer, testified that Mr. Martin’s structural drawings met the requis ite standa rd of care app licable for the design of buildin gs using pre-cast produc

ts. 19 In addition, Rob

ert D. Holsaple, a

retired archite

ct and forme

r Bo ard chairman, testified that all of Mr. Martin’s drawings complied with the requisite standard o f care. He also stated that the structural and electrical as pe cts of this project were “simple” and that Mr. Martin was not acting beyond his area of competence by preparing the structural, electrical, and other drawings for th

is project.-20-

Most of Mr. Coykendall’s opinions were substantially undermined by his concessions during cross-examination. However, he testified that Mr. Martin’s plans fell belo w the standard of care because they did not include fire alarms, exit lighting, and emergency lights. Mr. Martin conce des,

as he must, that his drawings do not include thes e items. His only explan

ation for their absence is that the plans were “

preliminary

” and that he was i

n a rush to get

the plans done quickly because the

owner was in a hurry

to complete the project. Accordingly, the Board had before it the conflicting testimonyof Mr. Coykendall and Mr. Holsaple on the issue of whether Mr. Martin’s plans for this project fell below the ap plica ble st andar d of ca re. It is not the judiciary ’s prerogative

to weigh this conflicting evidence. Rather, it is the Board’s. Based on the record before us, we cannot conclude that reasonable per

sons can draw only

one conclusion from the evidence. Accordingly, we conc lude that the record contains substantial and material evidence to support the Board’s conclusion that Mr. Martin’s omission of fire alarms, exit lights, and emergency lighting from the plans for this project fell below an architect’s standard of care for projects of this sort.

3. The Family Inns of America Project in Gatlinburg

The second project at issue involved a s even-s tory Family Inns of Am erica in Gat linburg. In early 1988, Mr. Martin prepared the architectural, e lectrical, mechanical , an d preliminary structural and plumbing plans. Because of the height of the building and its proximity to a river, Mr. Martin presented t

hese pl ans to Larry Henderson, Gatlinburg ’s local building official, for “prereview” and comment. Mr. Martin explicitly stated when he submitted the plans that the plumbing design was incomplete, that structural engineering had yet to be perf ormed, and that the structural design would be performed by a structural eng ineer hired by the contractor.

On April 18, 1988, Mr. Henderson pr ovided Mr. Martin with a review letter containing twenty-nine

comments regarding

the plans. Many of these comments related to the structural and plumbing aspects of

the project. Following the receipt of Mr. Henderson ’s comments, Mr. Ma rtin made revisions in his plans. In addition, a structural engineer prepared the structural drawings, and another engine

er prepared fi

nal plumbing draw

ings.
The State alleged

with regard to th

is project that Mr.

Martin was not competent to prepare
or supervise the preparation of t he preliminary

“structural and

/or electrical d

esign drawing

s” for this project and that his plans c

ontained numerou

s deficiencies a

nd code violations.

The State

called no witnesses to prove these allegations, choosing instead to rest its case regarding this project on Mr. Henderson’s April 18, 1988 letter an d Mr. Martin’s concession that the preliminary plans were incomplete.

In response, Mr. M artin insis ted that he had not departed from the applicable standards of

careandthat he never held out his initial plans as being complete. He explained that he was simply seeking “pre-review”

of the plans by

the local build

ing offi cial. Mr. Holsaple also weighed in on Mr. Martin’s work

on this project. He stated that architects are permitted to specify that a struc tural engineer employed by

the contractor w

ill prepare the st

r uctu ral drawings. He also testified that architects quite frequently

present prelimina

ry plans to

local building officials for “pre-review.” He also stated categorically that the p lan s Mr. Martin prepared for this project complied with the applicable standards of professional practice.20 In light of Mr. Holsaple’s testimony regardin g the tw enty- nine comment

s in Mr. Hender

son’s Apri

l 18, 1988 letter, there is a substan tial question reg arding the sub stantive validity of many of Mr. Henderson’s comments regarding Mr. Ma rtin’s plans.

-21- With rega r d to this project, the State presented absolutely no evidence regarding the applicable

standardof care for architects submitting preliminary plans to a local building of ficial for “pre-review.” Mr. Henderson’s letter does not de

monstrate that he i

s familiar with the

applicable standards of professional practice or that he is even competent to render an expert opinion regarding the adequacy of Mr. Henderson’s plans. 20 The only expe

rt testimony r

egarding the

se matters came from Mr. Martin himself and Mr. Holsaple, both of whom stated that Mr

. Martin was compe

tent to preparethe preliminary plans for this project andthat his work was c onsistent with the a

pplicable standards of professional practice.

In order for evi dence to be s ubstantial and material for the purpose of review under Tenn. Code Ann. § 4-5-322(h)(5), it must be something more than a scintilla. Gluck v. Civil Serv. Comm ’n , 15 S.W .3d at 490; MobilComm of Tenn., Inc. v. Tennessee Pub. Serv. Comm’n , 876 S.W.2d 101, 105 (T enn. Ct. Ap p. 1993). H aving review ed the evide nce rega rding Mr. M artin’s performance

on the Family Inns

of America proje

ct inGatlinburg, we, like the trial court, find that there exists no substantial and material evidence to support the Boa rd’s finding tha

t Mr. Martin

was notcompetent to prepare the drawings he prepared for this project or that the drawings he prepared fell below the applicable standards of professional practice.

4. The Family Inns of Am

erica Projec

t in Townsend

The next project at is sue involve d a two-story, 38-room motel in Townsend. After the Gatlinburg Family Inns project was c omplete, the owner hired Mr. Martin to prepare the plans for another motel in Townsend. Mr. Martin completed the site plans in October 1988, and completed th e architectural and engineering plans in March 1989. Because the owner intended to open t h e motel on July 4, 1989, to take advantage of the summer tourist season, the project’s contractor submitted Mr. Martin’s plans to the Townsend building official for fast-track review. After several meetings,the city issu

ed a b uilding permit in April 1989, and construction commenced. Mr. Martin’s contract

didnot include construction administration; accordingly, he did not anticipate that he would be involved with the project after the contractor obtained the building permit.

Three weeks af

ter const ruction c ommenced

and with a

pproximate

ly sixt y percent of the construction complete, aninspector employed by the State Fire Ma rshal happened

upon the project. He informed the contractor and Mr. Martin that the project was under the jurisdiction of the State Fire Marshal, and he d

irected the owne

r and contractor

to shut down the proj ect until his offic e could review and approve the plans. However, when no formal stop-work order was issued, the owner and the contractor i

gnored these in

structions and con

tinued constructi

ng the motel.
Following the state inspector’s appearance on site, the owner directed Mr. Martin to prepare

a set of plans for

the State Fire Marshal. Mr. Martin prepared a set of plans dated May 1, 1989, and the owner’s lawyer forwarded them to the State Fire M

arshal in Nashville. The of

fice received

these plans on June 8, 1989, along with a request that they be

reviewed on a fa

st-track basis. K

enneth Robichaux,

a plans inspector, completed his review of the plans on June 30, 1989, and mailed a plan-22-

corrections list conta

ining fif ty-four comments to Mr. Martin. Mr. Martin’s receipt of Mr. Robichaux’s co mments was substantially delayed because the owner’s lawyer had given Mr. Robichaux an incorrect address for Mr. Martin. By the time Mr. Martin received Mr. Robichaux’s comments, the motel

was completed an

d open for busines s.

Once Mr. Martin received Mr. Robichaux’s comments, he made corrections and additions to the plans andreturned

them to Mr. Robichaux. Mr. Robichaux received the second set of plans

on October 2, 1989 a

nd, on November 4,

1989, mailed a sec

ond plan correc

tions li st containing seventeencomments to Mr. Martin. Mr. Martin returned a third set of plans to Mr. Robicha

ux in February 1991. Mr. Robichaux responded to these plans in March 1991, and Mr. Robichaux and Mr. Martin met to discuss the project on July 15, 1991. Five days later, Mr. Robichaux re ceive d additional submittals from Mr. Martin.

The owner eventuall

y replace d Mr. Martin wit

h another architect. In March 1992, Mr. Robich aux rece ived another set of revised plans for the motel. In April 1992, Mr. Robichaux info rm edbot h Mr . Ma rti n an d hi s re pla cem ent tha t th e rev ise d pl ans were sti ll n ot s ati sfa cto ry. Fin all y, on January 13 , 1993, Mr. Robicha ux and other employ

ees o f t he State Fire Marshal inspectedthe motel which, by that time, had been open and operating for over three years. The plans for the project remained unapproved at the time of the Board’s hearing in this case.

With regard

to this project, the State alleged that Mr. Martin was not competent to prepare the electrical drawings and that he had failed

to communicate adequately with the State Fire Marshal andthe Board to obta

in timely approval of the plans. The State called Mr. Robichaux and William Wam sle y, the Director of C odes Enforceme

nt with the State Fire Marshal’s Office. Mr. Robichaux has an electrical engineering degree but is not licensed as either an a rchitect or an e

ngineer in Tennessee, and he s peci fic all y dis cla ime d an y e xpertise in the field of architecture. He had been working for the State Fire Marshal for app roximate ly one month when he received Mr. Martin’s initial plans for this project. In addition to recounting the history of the State Fire Marshal’s review of this project,

Mr. Robichaux testified thatMr. Martin has not b een “responsive

” and that he “wou

ld expect more out of a design professional than this.”

Mr. Wamsley likewise is not trained or licensed as an

architect or an engineer. However, he had r eceived training in safety engineer ing through the National Fire Academy, the Na tiona l Fir e Protection Association, and the Southern Building Code Congress, and he hadworked as a priva te fire protection consultant for a number of years. At the time he testified, he had been employed for twelve years by the State Fire Ma rshal to review plans. Mr. Wamsley testifiedthat incomplete plans

was th e most common problem encountered by his office and that “multiple reviews” ar e ofte n required to resolve these problems. Healso testified that he was aware of other instances when plans hadbeen submitted to the local building authorit y rather th an the State

Fire Marshal. He stated that it was “some

t imes difficult” fo

r architects to kn

ow to which gover

nmental agenc

y they should submit plans for review and, therefore, th at the State Fire Marshal looks to the local building authorities to info

rm architects wh

en plans must be subm

itted to the State F

ire Marshal.
In response to the State’s proof, Mr. Martin testified that he was compe

tent to perform the electricaldesign work for this project, that he had been as responsive as he could be to theState Fire Marshal, and that

he had no authority to instruct the owner or the architect to stop work when it was first le arned that the plans for the motel should have been submitted to the State Fire Marshal for-23-

review. He laid the respo nsibility for

the failure to obta

in the State Fire Marshal’s timely approval of the plans on (1) the City of Townsend’s issuance of a buil

ding permit

without informing him that the plans must also be approved by the State Fire Marshal and (2) the owner’s unilateral decision to continue the construction of the motel even after he was told that the State Fire Marshal’s approval was required.

Mr. Martin also calle

d Mr. Holsaple to pr

ovide expert testimo

ny regar ding his work on thi

s project. Mr. Holsaple stated that while he would have liked to have seen better quality drawings than the ones Mr. Martin

produced for this

project, he had “

seen a lot of prof

essionals that are

a lot worse than this.” He also stated that the design of this project was “simple” and that Mr. Martin’s d rawings met the applicable

standard of car

e for architec

ts designing bui

ldings of this sort.
Directing his attention to the review and approval issues,

Mr. Holsaple state

d that architects should be entitled to rely on the representations of local building officials. He also stated that Mr. Martin’s plans did not receive an excessive number of comments. He disagreed with twenty-nine of Mr. Robichaux’s orig

inal fifty- four comments

and with thirteen of the seventeen comments Mr. Robichaux made regardin g M r. Mar tin’s second set of plans. He also stated that the number of commentsmade by a building official on a set of plans is not indicative of an architect’s competence andthat he was “[p]ainfully aware” that an architect’s plans genera lly contain some sort

of mistake. Based on this evid ence, the Board concluded that Mr. Martin was acting outside of his area of competencewhen he designed the electrical plans for this project and that Mr. Martin had “failed to communicate ad

equately w

ith the SFMO

and the State Board in order to allow the project to be designed sufficiently for completion and SFMO approval.”

The State asserts that it presented substantial and material evid ence that Mr. Mar

tin was not competent

to pre p are the electrical plans for this project through Mr. Robichaux’s testimony regarding his comments on the plans. Neither Mr. Robichaux nor Mr. Wamsley testified that

they

were familiar with the standard of care app lica ble to architects who are design

ing building of th

is

so r tor that Mr. Martin’s work on this project breached these standards. In fact, Mr. Robicha ux disclaimedto be testifying as an expert in the field of architecture. Accordingly, as f ar as this record shows, the expert testimony of Messrs. Martin

and Holsaple that Mr. Martin’s plans were consistent with the applicable standards of care stands unrebutted by competent evide nce.

Even i f Messrs. Robichaux and Wamsley could not give expert opinions regarding Mr. Martin’s performance, they were competent to provide fa ctual information regarding Mr. Martin’s dealin g s with the State Fire Marshal regarding this project. Accordingly , based on the testimony regarding the number of comments on the plans for the project, it could be argu

ed that a lay person should be able to conclude that the number of comments was excessive and that an excessive number of comments is evidence that an architect was not co mpete nt to prepare the plans. Architec

ts, however, are generally not expected to produce perfect plans or drawings. Lukowski v. Vecta Educ. Corp. , 401 N.E.2d 781, 786 (Ind. Ct. Ap p. 198 0); Colbert v. B.F. Carvin Constr. Co. , 600 So. 2d 719, 729 (La. Ct.App. 1992); Klein v. Catalano , 437 N.E.2d 514, 525 (Mass. 1982); Waggoner v. W & W Steel Co. , 657 P.2d 147, 149 (O kla. 1982); Howard v. Usiak , 775 A.2d 9 09, 915-16 (Vt. 2001). Thus, evidence concerning the number of comments in a set of plans or drawings is not, by itself
, s ufficient to suppo

rt a conclusion tha

t an architect wa

s not competent to pr

epare the plans. Thi s is especially

true in this case in

light of Mr. Holsa

ple’s testimony

that architectur

al plans a r e-24-

rarely error-free

and that many of Mr. Robichaux’s comments were unwarranted or erroneous and Mr. Wamsley’s testimony that multiple reviews are often require d to resolve problems with plans.

The Board also conc

luded that Mr. Mar

tin acted inappro

priately by f

ailin g to prevent the

ow nerand contractor f

rom completing th

e motel before th

e plans could be a

pproved. This conclusion i s based, in large part, on the testimony of Messrs. Robichaux and Wamsley that Mr. Martin was not prop

erly respo nsive to their req

uests for information. We have concluded that the Statefailed to provide sufficient competent evidence to discipline Mr. Martin for (1) not submitting the plans initially to the State Fire Marshal, (2) not for cing the owner and contractor to stop work in May 1989, or (3) not providing ade qua te responses to the State Fire Marshal’s requests for revisions to the pla

ns.
It is undisputed that the contractor presented Mr. Martin’s plans to the Townsend building authorities and that

these authorities issueda building permit based on these plans without informing either the owner or Mr

. Martin that state law required the plans to be submitted to the State Fire Mars hal. Mr. Wamsley testified that architects sometimes had difficulty deter mining which governmentalentity should review plans and that his office relied on the loca

l building officia

ls to pointowners and architects in the right direction. Mr. Holsaple added th at architects ma

y properly rely on the representations of local building officials and, therefore, that Mr. Martin andthe owner properly assumed that the plans were in order when the Townsend building official issued a building permit for the project. In light of this testimony, the record lacks substantial and material evidence to support the conclusion that Mr . Martin acted unp

rofessionally

by not initially submitting the plans to the State Fire Marshal.
By the same token, neither Mr. Robichaux nor Mr. Wamsley testified that Mr. Martin was responsible

for the owner’s decision to continue with the construction of the motel after he had been informedthat construction should not proceed further until the State Fire Marshal had reviewed

and approved the plans. Mr. Holsaple stated that Mr. Martin did not have this authority because contract administration was not

part of his contract and because he had fully performed the contract when he submitted the plans to the contractor in early 1988. In addition, neither the owner nor the contractor needed to be told thatthe project had run afoul of the State Fire Marshal because they had rece ived this information dir

ectly from t

he inspectors.

Fin all y, the record

lacks substantial and material evidence that the timing and substance of Mr. Martin’s responses to the State Fire Marshal were inconsistent with the applicable standards of

care. There is no testimo ny that Mr. Ma

rtin was inapprop

riately late with his responses once he received Mr. Robichaux’s comments. Likewise, Mr. Holsaple testified t hat Mr. Martin’s substantive responses to Mr. Robichaux’s comments were appropriate and consistent with the

type of res

ponse that architects s

hould make to similar

comments.

We have reviewed the record relating to Mr. M

artin’s actions w

ith regard to the

Family Inns of America in

Townsend. Like the trial court, we have concluded that the record d

oes not contain substantial and material evid ence to support the

Board’s conclu

sions that Mr. Marti

n was n o t competent

to prepare the electrical plans for t he motel and that Mr. Martin’s conduct and communications with the Sta te F ire Marshal were inconsistent with Tenn. Comp. R. & Regs. r. 0120-2-.02(2).-25- 5. The East Tennessee Motor Company Body Shop Project

The fourth and final project at issue in this case involves the conversionof a 26,100 square foot grocery store for

merly owned b y Cas Walker into an automotive body shop. The store was locatedon Chapman Highway in Knox County. The property owner ret ained Mr. Martin in earl y 1989 after hehadbeen una ble to o bta in a bui ldi ng pe rmi t ba sed the pla ns p revi ous ly pr epar ed b y a draftsman. Mr. Mart in was retained solely to prepare the plans; he did not contract to have any responsibility

for construction administration. Apparently, the owner was able to obtain a building permit based on the plans prepared by Mr. Martin.

On Ma r ch 6, 1989, Charles R. Widener, an inspector employed by the Knox County Fire Prevention Bureau, inspected the construction and discovered that the contractor had

not complied withMr. Martin’s plans. Specifically, he discovered that the contractor had failed

to extend several walls to the roof deck as required by Mr. Martin’s plan s and had installed an unrated residential garage door and had improperly installed an unrated entry door, even thoug h Mr. Martin’s plans called for a ra

ted roll-up door be

tween the two spac

es in the building. Mr. Widener instructed the contractor

to stop work. On March22, 1998, and again on April 4, 1998, Mr. Widener informed Mr. Martin that he had issued a stop-work order and requested Mr. Martin t o provide him with Underwriter’s Laboratory de sign ratings for several of the interior walls.
Despite Mr. Widener’s stop-work order, the contractor continued construction. At Mr. Widener’s request, Mr. Martin accompanied Mr. Widener to the project and in formed both the owner andthe contractor that they should follow his plans and that they should stop work until the issues raisedby Mr. Widener had been resolved. During an inspection of the project on May 3, 1998, Mr. Widener discovered that t

he project was c

ompleted and the bu

ildin g w as occupied even though a certificate of occupancy had not been issued. No corrective measures had been taken regarding the deficiencies discovered on March 6, 1998.

The State asserted that Mr. Martin did not adhere to the applicable standards of professional practicebecause he did not withdraw from the pr oject and b ecause he failed to inform the Knox County Fire PreventionBur eau that the contractor was continuing to work on the project without correctingthe construction deficiencies discovered on March6, 1998. To prove these charges, the State called only Mr. Widener. Mr. Widener testified that he was a former fire fighter and that he hadbeen employed by Knox County since 1986. He also stated that he had been certified as a fire inspector by the National Fire Preve ntio n Association and the Southern Standard Building Code Congress and that his job was

to conduct f

iel d inspections rather than to examine plans to spot d eficiencies.

He conceded that he was not a licensed architect or engineer and tha t he wa s not an expertregarding the standard of care applicable to architects whose clients refuse to abide bya stopwork order. Mr. Widener testified that he had “never seen a set of plans [that] came thro ugh ou r office complete . . . Some are a whole l ot worse than others . . ..”

While he testified th

at Mr. Martin hadbeen “ge nerally cooperativ e,” Mr. Widener stated that Mr. Martin’s plans “had more deficiencies . . . [than] usual” and that he would rate the plans a “two, at best” based on a scale of one to ten.

In response to the State’s case, Mr. Martin testified that he had been hired solely to prepa re plans for the project and that he had not agreed to perform any sort of construction administration services f or this project. He also stated that several of the walls questioned by Mr. Widener were-26-

existing walls for which hewas not required to provide rating information and that the construction details for the re

maining walls we

re on his plans.Finally, he testified that he had fully performed his contract when he submitted the plans to the owner and, therefore, that he could not “withdraw” from the project afte

r Mr. Widener issue

d the stop-work or

der. Mr. Marti

n a lso presented Mr. Holsaple’s appraisal of his work onthis project. Mr. Holsaple stated that the design of this project was “simple” and that Mr. Martin’s plans for the project complied with the applicable standard of care. He also testified that an architect does not have the authority to stop the work and that all an architect can do in a situation like this one is to advise his or her client that the cli

ent has a problem. Under the circumstances of

this project, Mr. Holsaple testified that there was nothing else that Mr. Martin could have done.

Based on this evidence, the Board concluded that Mr. Martin had departed from the applicable

standards of professional practice (1) by failing to provide the design criteria for the rated walls requested by

Mr. Widener, (2) b

y failing t o report the owner

’s and contracto

r’s activities to

the proper authorities, and (3) by failing to withdraw from t he project. We have determined that the record lacks substantial and mater ial evidence to su

pport these conc

lusions.

There is no competent evi dence in this record identifying a design professional’s obligations when a local building authority issues a stop-work order other than the testimony of

Messrs. Martin andHolsaple. Mr. Widener is not qualified to render such an

opinion and specifically disclaimed expertise regarding th

is matter. He also did not attempt to articulate the applicable standard of care

or to explain how Mr. Ma

rtin’s conduct d

epart ed from this standard. Accordingly, nothing in the record substantiates the State’s claim that “a design prof

essional remains r

esponsible to appr

opriate authoriti es to bring a design into compliance with the codes even if the only contra

ctual duty is

to provide the desig n.” In light of the record before us, we concur with the trial court’s conclusion that the record does not contain substantial and material evidence to support the Board’s conclusion that Mr

. Mar tin’s conduct on this project was contrary to the standards in Tenn. Comp. R. & Regs. r. 0120-2-.02(2).

6.

To summarize, we have concluded that the record contains substantial and material evidence to support only the Board’s conclusion that Mr. Martin departed from the applicable standa r ds of professional practice by preparing drawings for the

Timbers Lodge and Old Village Shops project that did not contain plans for fire alarms, exit lights, and emergency lighting

. In light of our conclu s ion that the State failed to present sufficient competent evidence regarding the rema ining claims of unprofessional practice, we need not addressthe State’s arg

ument that the tria

l court did not give appropriate consideration to the total weight of the evidence with regar d to Mr. Martin’ s performance on all four projects at issue.

The Board’s decision to suspend Mr. Martin’s license for three yea rs and thereafter to place h imon probation for o

ne year wa

s expressly pr

emised on its concl

usion that he had e

ngaged in unprofessional conduct on all four projects at

issue. In light of our conclusion that the State did not carry its burden with regard to three of these four projects and a significant portion o f the fou rth project, it would be inappro priate to surmise t

hat the Board wo

uld have imposed the

same punishmenthad Mr. Martin’s only offense been to overlook including fire alarms, exit

lights, and emergency

lighting onone project. In cases where an administrative agency’s decision is tainted by-27-

err or substa

ntially affecting the outcome of the proceeding, the most appropriate remedy is to remand the case to the boar d withinstructions that the agency carry out its statutory responsibilities in a

manner consistent with its statutory authority. Consumer Advocate Div. v. Tennesse

e Regulatory Auth.
, No. M1999-02151-COA-R12-CV, 2000 WL 13794, at * 2 (Tenn. Ct. App. Jan. 10, 2000) (No Tenn. R. App. P. 11 applica tion filed); Hoover, Inc. v. Metropolit an Bd. of Zoning Appeals , 955 S.W.2d 52, 55 (Tenn. Ct.App. 1997). Accordingly, we remand the case to the B oard with directions to determine, based on the present record, the discipline that should be imposed on Mr. Martin for his failure to incl

ude in the plans f or the Timb ers Lodge and Ol d Village Shops project provisions for fire alar ms, exit l ights, and e mergency lighti ng.

IV.

We affirm the judgment of the trial co urt except as modified in Section II

I. The case

is remanded to the Board of Examiners for Architects and Engineers for further proceedings consistent withthis opinion. The costs of this appeal are taxed to theBoard of Examiners for Architects and Engineers.

_____________________________ WILLIA M C. KOCH, JR., JUDGE