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Mr Cristobal Mendoza-Cruz

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Cristobal Mendoza Cruz (080489D)

Held on 7 & 8 November 2016

At

The International Dispute Resolution Centre

70 Fleet Street

London

EC4Y 1EU

———-

Present

Mr Julian Weinberg (Chair)

Mr David Kann (PCC Architect Member)

Mr Stephen Neale (PCC Lay Member)

Mr Stephen Battersby (Clerk)

 

 

———–

 

Mr Iain Miller of Bevan Brittan appeared on behalf of the Board.

Mr Mendoza Cruz appeared in person.

 

 

  1. The Board is represented by Mr Iain Miller. Mr Mendoza Cruz has attended this hearing but is not legally represented. Mr Mendoza Cruz faces a charge of unacceptable professional conduct (“UPC”) based on five allegations in that he:

 

Allegation 1: Failed to deal appropriately with a complaint, in that he failed upon reasonable demand to refund an overpayment to his client Mrs SR;

Allegation 2: Failed to ensure that the website of the practice, Menza Architecture Limited, promoted his professional services in a truthful and responsible manner;

Allegation 3: Acted without integrity by inappropriately suggesting in a letter to the Board dated 11 March 2016 that he would only return the money overpaid to him if the complainant agreed to withdraw the complaint to the Board;

Allegation 4: For a period since approximately September 2015, he has failed to account, or has delayed in accounting, to his client, Mrs SR, in respect of monies she had overpaid to him;

Allegation 5: Failed to co-operate fully and promptly with the Board’s enquiries, in that he failed to provide evidence to the Board that he retained client money in a separate client account, as required by Standard 7 of the Architects Code, “Trustworthiness and safeguarding clients’ money” when requested to do so in a letter from the Board dated 21 April 2016 and in an email dated 9 May 2016

 

and that by doing so, the respondent acted in breach of Standards 1, 3, 7, 10 and 11 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).

 

Background:

 

  1. A complaint has been made by Ms AR on behalf of her mother, Mrs SR (“the complainant”), in respect of the professional services carried out by the respondent. At the material time, he was practising as an Architect under the name of Menza Architecture Ltd.

 

  1. The background to the allegations is that the complainant engaged the respondent to design an extension to her property. She was sent terms and conditions by the respondent in relation to his fees and the payment structure for paying them. In summary, it is alleged that the complainant overpaid the respondent’s fees and despite numerous requests for repayment, the respondent did not reimburse the complainant.

 

  1. During the course of the Board’s investigations, concerns were raised as to the promotion of the respondent’s services via the firm’s website, in that it is alleged that it described the firm as having “a team of ARB registered Architects”, when in fact, the respondent was the only registered architect at the practice.

 

  1. During the course of the Board’s correspondence with the respondent, it is alleged that the respondent stated that he would only repay any overpaid money to the complainant if she withdrew her complaint. Concerns regarding the respondent being able to evidence that client money was being held in a separate designated client account form the basis of the fifth allegation.

 

  1. All the factual allegations are denied.

 

  1. In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the bundle of documents exhibited to it. The complainant, Tanya Davies of the Board and the respondent also gave live evidence. The complainant’s evidence and that of Ms Davies, was measured, clear and consistent. By contrast, the Committee considered the respondent’s evidence to be inconsistent and lacked credibility in that, by way of example, (but not limited to) the following:

 

  • The respondent accepted that an overpayment had been made and that he wished to return the overpayment to the respondent, yet sought to justify failing to do so;
  • The respondent appeared to suggest that the complainant owed him money for additional work and interest, but he accepted that the complainant had not been invoiced for any further work and he had not suggested in his correspondence with the complainant that he would be further invoicing her. In addition, he has not quantified the amount of interest payable;
  • He stated that he was justified in not returning the overpayment because the complainant had made a complaint against him. However, the complaint was made some time after he had initially stated he would return the money to her when he had been given her bank details;
  • He stated that he would have sent the Board details of his bank account but he did not because it contained confidential information. However, the Board had specifically stated that any such information could be redacted to preserve confidentiality;
  • He initially stated that he worked with other ARB registered architects, but subsequently conceded that that was not the case.

 

  1. The Committee has accepted the legal advice given by the clerk. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies, notwithstanding the respondent’s admission.

 

Findings of fact:

 

  1. The Committee makes the following findings of fact:

 

Allegation 1

 

  1. The Committee finds the facts proved for the following reasons.

 

  1. It is not disputed by the respondent that the complainant overpaid him, although the precise amount of the overpayment is disputed. It is clear from the documents before the Committee that the respondent has accepted in his text and email messages to the complainant and in his correspondence with the Board, that an overpayment has been made. This was also accepted by the respondent in evidence. Being an overpayment, the panel finds that the complainant’s demand for repayment of it was reasonable.

 

  1. The complainant first requested repayment of the overpaid amount by text on 28 September 2015 (in which she gave her account details), and again on 9 and 11 October 2015. The exhibited text messages show that the respondent replied stating that he “would be in touch soon”. The complainant’s daughter emailed the respondent on 18 October again requesting a refund. The complainant’s daughter stated that the respondent subsequently spoke to her but was aggressive and insulting and avoided dealing with the question of the overpayment refund. The respondent subsequently sent the complainant emails claiming that he had had to chase her for money and that she was in financial difficulties. The exhibited emails show that the complainant again wrote to the respondent on 28 October requesting the refund by 12 November 2015. In his email dated 3 November, the respondent clearly acknowledges that a refund is due to the complainant stating “Money will be transferred to your account”. As the refund was not made by 10 November, the complainant chased the respondent again. The correspondence shows that the respondent replied stating that he would repay the overpayment, but less interest for late payments and for time spent dealing with her on this issue. No figure for these elements was indicated. The respondent in evidence accepted that the complainant had overpaid him. He was also unable to quantify the interest he says had accrued and which he stated was deductible from any money owing.

 

  1. The complainant emailed the respondent again on 25 January 2016 as no money had been received by her from the respondent. No response was received from the respondent.

 

  1. In the circumstances, the Committee has concluded that, despite the initial request for the refund being made in September 2015, no refund was made, notwithstanding that the respondent repeatedly accepted by text, email and in correspondence with the Board, that the complainant was due a refund (subject to the question of the amount of the refund being agreed). The complainant’s case is that she has overpaid the respondent £2,482 which represents £6900 paid, less £5000 due, plus an additional £582 she paid for a builder provide sketches that she claims was the respondent’s responsibility. The respondent has not identified the amount of the overpayment he accepts is due. The Committee is not tasked with establishing the exact amount of the overpayment, only whether one exists.

 

  1. Standard 10.2 of the Code states:

 

Standard 10 – Deal with disputes or complaints appropriately

 

10.2        Complaints should be handled courteously and promptly at every stage; and as far as practicable in accordance with the following time scales:

a             an acknowledgement within 10 working days from the receipt of a complaint; and

b             a response addressing the issues raised in the initial letter of complaint within 30 working days from its receipt.

 

  1. By failing to make any repayment which was reasonably demanded, the Committee finds that the respondent has failed to deal with the complaint appropriately or promptly in breach of Standard 10 of the Code.

 

Allegation 2

 

  1. The Committee finds the facts proved for the following reasons.

 

  1. During the course of the Board’s investigations into the respondent’s conduct, the Board visited the website of Menza Architecture. Printouts of the landing page are exhibited in the documentation. The profile of the website states: “MENZA Architecture is a team of ARB Registered Architects. Our work varies from conversions, refurbishments to new builds and extensions. Our approach is to explore every available option to achieve the best outcome in terms of the clients and context”. A search of the Register of Architects by the Board disclosed that the respondent is the sole architect associated with the practice. The correspondence discloses that the Board asked the respondent who the other architects were. He responded by email stating that “Menza architecture is a team of architects as there is at least one architect registered with ARB”. It is the Board’s case that that the website suggests that the practice has more than one registered architect working there, thereby suggesting to the public that that the firm is a larger organisation than is in fact the case. This, it is alleged is misleading and confusing.

 

  1. The respondent, in his correspondence with the Board, has not stated that, other than himself, another registered architect works at the firm. In evidence, he stated that, when appropriate, he would work with other architects on a freelance basis, and therefore, his website was accurate. In response to a question from the Committee, however, he accepted that these individuals were “close friends” and that he “was not really sure if they were registered”, and that he was, in fact, the only registered architect at the practice.

 

  1. Standard 3 of the Code states:

 

“Standard 3 – Promote your services honestly and responsibly

 

1              You are expected to promote your professional services in a truthful and responsible manner.

2              ……

3              The business style of a practice should not be misleading.

 

  1. The Committee finds that the wording of the website does suggest that more than one ARB registered architect works at the practice. The Committee has accepted the evidence of the Board that a search of the register shows that only the respondent works there, and this was conceded by the respondent as set out above.

 

  1. By acting as found proved, the Committee finds that the respondent did not promote his services in a truthful and responsible manner, and that the business style of the practice was misleading. As such, the respondent acted in breach of standard 3 of the Code.

 

Allegation 3

 

  1. The Committee finds the facts proved for the following reasons.

 

  1. The Committee has considered the contents of the correspondence passing between the respondent and the Board regarding the complaint raised by the complainant regarding the respondent’s failure to refund her the overpayment requested.

 

  1. In his letter to the Board dated 11 March 2016, the respondent stated:

 

So therefore, as mentioned in my last letter, the excess of money transferred by Ms Rokad to Menza’s account will be returned to her minus interest charges once the complainant agrees and drops the ARB complaint. Otherwise, I will be expecting your resolution at your earliest convenience”.

 

  1. Following further correspondence with the Board, the respondent sought to clarify his position as set out above by stating on 6 May 2016 that: “In other words, interest charges would be ignored as long as the complaint is ignored” and that “the main purpose of this action was to find an agreement and a peaceful resolution for both parties”.

 

  1. Having considered the correspondence, the Committee considers that the only logical interpretation of the respondent’s letter of 11 March is to state that the overpayment would only be refunded if the ARB complaint was withdrawn. This was accepted by the respondent in evidence, although he denied that he was acting inappropriately.

 

  1. Standard 1 of the Code states:

 

Standard 1 – Be honest and act with integrity

 

1              You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.

2              You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to the profession.

 

  1. The Committee finds that by linking these two unconnected and discrete issues, it was inappropriate to make the refund conditional on the complaint being withdrawn. The Committee finds that the respondent lacked integrity in that he had given assurances that he would repay the overpayment yet refused to do so while his client pursued her complaint that he had refused to make the repayment. For the same reasons, the Committee further finds that the respondent made a statement that was unfair to the complainant and was discreditable to the profession. As such, the Committee finds that the respondent acted in breach of Standard 1 of the Code.

 

Allegation 4

 

  1. The Committee finds the facts proved for the following reasons.

 

  1. For the reasons set out in respect of allegation 1, the Committee finds that the respondent failed to refund an overpayment due to the complainant in circumstances where the respondent accepted that a refund was due to her. By reason of that finding, the Committee finds that the respondent, since approximately September 2015, failed to account, or delayed in accounting to his client, Mrs SR, in respect of monies she had overpaid him.

 

  1. Standard 7 of the Code states:

 

Standard 7 – Be trustworthy and look after your clients’ money properly

 

7.1          You are expected to keep proper records of all money held by you which belongs to a client or other third party, and to account for it at all times

7.2          You should keep such money in a designated interest-bearing bank account, called a “client account” which is separate from any personal or business account.

 

  1. By acting as found proved, that Committee finds that the respondent was not trustworthy and did not look after his client’s money properly and account for it at all times in breach of standard 7 of the Code.

 

Allegation 5

 

  1. The Committee finds the facts proved for the following reasons.

 

  1. During the course of correspondence with the respondent regarding the refund of moneys due to the complainant, the Board requested that the respondent provide evidence that client money was being held in a separately designated client account as required by standard 7 of the Code. They stated that the evidence could be in the form of a redacted bank statement.

 

  1. On 6 May, the respondent replied to that request stating: “On the other hand, I confirm that the complainant’s money is being held separately at the company’s account”. No evidence of that being supplied, the Board emailed the respondent requesting evidence that a client account existed, but no further evidence has been supplied by the respondent despite his assertion as stated above.

 

  1. In his evidence, the respondent accepted that he did not hold a separate client account. He stated that the money paid by the complainant was kept in his business account which was used to pay the practice’s expenses. Given that the complainant had overpaid money to the respondent which was not the subject of an invoice, the amount of the overpayment was clearly client money. As such, it should have been retained in a designated client account. As the respondent did not have such an account, he was therefore unable to evidence that the overpayment was held in such an account. His explanation for not forwarding the account details was that it contained confidential information. However the Committee notes that the Board made it clear that the information could be supplied in appropriately redacted form.

 

  1. Standard 11 of the Code states:

 

Standard 11 – Co-operate with regulatory requirements and investigations

 

1              You are expected to co-operate fully and promptly with the Board, and within any specified timescale, if it asks you to provide information which it needs to carry out its statutory duties, including evidence that you are complying with these Standards.

 

  1. By failing to provide the evidence as requested by the Board, the Committee finds that the respondent failed to co-operate fully and promptly with the Board in circumstances where the respondent was being asked to provide information which it needed to carry out its statutory duties, including evidence that the respondent was complying with the standards of the Code. As such, the Committee finds that the respondent acted in breach of Standard 11 of the Code.

 

Finding on Unacceptable Professional Conduct:

  1. Having found all the allegations proved, the Committee went on to consider whether the respondent’s conduct amounts to UPC. UPC is defined as “conduct which falls short of the standard required of a registered person”.

 

  1. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the clerk. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.

 

 

  1. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

 

  1. It is the Committee’s finding that the facts found proved, are serious failings. The respondent, despite having accepted that his client was due a refund for an overpayment, and having given repeated assurances that he would repay her, nevertheless failed to do so. The public should rightly be able to expect professionals to keep to their word and the respondent wholly and deliberately failed in this regard. The Committee notes that the overpayment has still not been repaid. He subsequently used the fact that he owed money to the complainant, as leverage to get the complaint against him withdrawn. He failed to promote his practice in a truthful and responsible manner and, in correspondence with the Board undertaking its proper regulatory function, he was evasive and uncooperative. The allegations found proved and the corresponding breaches of the Code, both individually and collectively, amount to a serious falling short of the standard expected of a registered Architect. Such conduct significantly adversely impacts both on the reputation of the respondent and the profession generally. The Committee has not heard anything that gives it reassurance it would not be highly likely that his failings would be repeated if the respondent were faced with the same circumstances in future.

 

  1. In the circumstances, such failings can quite properly be categorised as UPC. The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.

 

Sanction:

  1. The respondent attended the second day of the hearing, albeit over an hour late. He addressed the Committee in mitigation. He submitted that he did not consider that a sanction was required or appropriate.

 

  1. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the respondent’s interests, the indicative sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

 

  1. Having taken into account all the evidence before it, the Committee has identified the following mitigating factors:

 

  • he has engaged in the regulatory process;
  • he has no adverse regulatory findings recorded against him in his ten year career.

 

  1. The Committee has identified the following aggravating factors:

 

  • the respondent has offered no apology for his actions, either to the complainant or the Board. In mitigation, he continued to deny the allegations against him;
  • he has shown no insight into his professional responsibilities towards both his client and his regulator. On the contrary, the respondent was resolute that he would not repay the complainant any monies owing to her. In his correspondence to the Board, he has referred to the complainant’s actions as “disrespectful, rude and shameful attitude by the complainant with her disgraceful demands and threatens (sic) with her abusive offences and completely (sic) lack of understanding and disregard at reaching an agreement” and her “brainless approach at overpaying “on purpose” and then demanding her money back through queries and shameful offences is just baffling”. Given the Committee’s findings, it considers this assessment of the complainant’s conduct to be wholly unjustified. Even in mitigation, the respondent continues to blame the complainant for him not having made the refund to her based on the service he provided. He restated that he does not consider it fair to repay the complainant and that he will not be making a refund to the complainant. Given his lack of insight, as stated above, the Committee considers the risk of the respondent repeating his UPC to be high;
  • the respondent’s UPC covered a wide range of failings relating to his relationship with his client, his regulator, mismanagement of client money and potentially misleading the public through his firm’s website;
  • despite accepting that the complainant is owed repayment of the overpayment, he has still failed to repay her, and throughout this hearing, has restated that he would not do so while the complaint against him was ongoing. In the light of his steadfast and ongoing refusal to repay the complainant, the Committee considers that the respondent has displayed an entrenched and severe lack of integrity;
  • the respondent’s actions have caused the complainant significant financial and emotional stress and she had found the respondent’s manner particularly upsetting.

 

  1. The Committee notes that the extent and breadth of the matters found proved are serious to the extent that Mr Mendoza Cruz’s failings seriously diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

 

  1. The Committee first considered whether to impose a reprimand. Given the seriousness of the UPC found proved, the Committee considered the respondent’s failings too serious for such a sanction to be either appropriate or proportionate.

 

  1. The Committee then considered whether to impose a penalty order but discounted this as an appropriate sanction for the same reasons.

 

  1. The Committee then considered whether to impose a suspension order. The Committee considers his failings fundamentally incompatible with remaining a registered Architect. As previously stated, these were serious failings which posed a clear risk to clients and to the reputation of the profession generally. Because of the seriousness of the UPC found proved, the Committee did not consider that a suspension order would be the appropriate or proportionate sanction to impose to protect the public and the reputation of the profession and to declare and uphold professional standards of behaviour and conduct. Given the respondent’s lack of insight, the Committee cannot therefore have any confidence that any lesser sanction than erasure would have the desired effect of ensuring future compliance.

 

  1. The Committee therefore imposes an erasure order. The Committee considers that, in all the circumstances, only permanent removal from the register will protect the public and the reputation of the profession. In view of the aggravating factors and hence, the seriousness of the UPC found proved, the Committee recommends that the respondent should not be considered for readmission to the profession for a minimum period of three years.

 

  1. That concludes this determination.

 

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