STATE OF FLORIDA

DIVISION OP ADMINISTRATIVE HEARINGS

JANET FRIEDMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0076

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOAKD OF ARCHITECTURE ) AND INTERIOR DESIGN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 14, 1991, in West Palm Beach, Florida, before

J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul M. Zisholtz, Esquire

Crocker Center, Tower I 5200 Town Center Circle Suite 105

Boca Raton, Florida 33486

For Respondent: Arthur R. Wiedinger, Esquire

Office of the Attorney General Department of Legal Affairs Board of Architecture & Interior Design

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Janet Friedman, is qualified for licensure, without examination, as an interior designer pursuant to Chapter 88-383, Laws of Florida,

as amended by Chapter 89-19, Laws of-Florida, based upon her experience and employment history.

PRELIMINARY STATEMENT

By letter dated October 19, 1990, the Board of Architecture & Interior Design (the "Board") advised Petitioner that her application to be licensed, without examination, as an interior designer pursuant to Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida, was denied on the grounds that Petitioner had not sufficiently documented the requisite experience necessary for licensure. The Board's decision was reiterated in a letter dated November 9, 1990. By letter dated November 15, 1990, Petitioner requested a formal hearing on the Board's decision. The case was referred to the Division of Administrative Hearings (DOAH) which noticed and conducted the hearing.

At the hearing, Petitioner testified on her own behalf and also presented the testimony of Sandy Samole, a licensed interior designer in the State of Florida; Scott Heiken, who hired Petitioner in 1984 to do some work for his house; and Sabino Demieri, the president of Executive Caterers, a company for which Petitioner worked. Petitioner offered seven exhibits into evidence, all of which were accepted. Respondent's relevancy objection to Petitioner's Composite Exhibit 1 (two certificates of continuing education) was overruled.

Petitioner's Exhibits 3, 4, 5 and 6 were large poster boards which exceeded the size limitation for exhibits contained in Rule 221-6.027, Florida Administrative Code. At the hearing, the parties agreed that photographs would be taken of those exhibits and submitted subsequent to the hearing. The original exhibits have remained with Petitioner with the agreement of Respondent. The photographs were filed with DOAH on December 2, 1991. Petitioner was advised that she may be required to produce those original exhibits to the Board at the time it considers this Recommended Order.

Petitioner's Exhibit 7 was a composite of blueprints and drawings identified at the hearing by Petitioner. At the hearing, the parties agreed that those drawings would be transmitted to DOAH by Petitioner subsequent to the hearing. Several such drawings were filed of record with DOAH on December 3, 1991. In reviewing those drawings, it appears that some of the drawings identified at the hearing were not included in the transmittal. In addition, several of the drawings identified at

the hearing were apparently not prepared until March and April of 1990 and July of 1991. Since the applicable statute requires six years experience prior to January 1990, those blueprints prepared in March and April 1990 and July 1991 have not been considered in reaching the recommendation set forth herein. All the blueprints submitted have been transmitted to the Board with this Recommended Order.

Respondent presented the testimony of Curtis R. House, a licensed interior designer in the State of Florida. Respondent offered one exhibit into evidence, a certified copy of Petitioner's application, which was accepted without objection.

A transcript of the hearing has been filed. At the conclusion of the hearing, the parties agreed upon a schedule for filing proposed findings of fact and conclusions of law. Respondent timely filed such proposals. No proposals have been received from Petitioner. A ruling on each of Respondent's proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made.

1. By application dated August 31, 1989, Petitioner applied to the Board for licensure, without examination, as an interior designer pursuant to Chapter 88-383, Laws of Florida. Her application was received by the Board on September 7, 1989. Respondent does not dispute that Petitioner's application was timely filed.

   
   

2. The Board, by letter dated October 19, 1990, advised Petitioner of its intention to deny her application. The following explanation was given in the letter:

   
   

   A review of your application by the Interior Design Committee shows that you did not sufficiently document that you have met the definition of Interior Design for a six year period. The Committee is concerned with whether you were working full-time in the Interior Design field during the time you were in school. Also client reference forms previously provided do not give us

   sufficient interior design descriptions [ sic] .

   
   

3. Petitioner graduated with honors from Broward Community College with an AS degree in Interior Design in 1985. Petitioner attended Broward Community College from 1982 through June, 1985.

   
   

4. Petitioner took three years to complete a program that would usually take a full-time student two years to complete. Petitioner attended school on a part-time basis and generally did not take more than 9 credit hours at a time. Thus, she was usually not in class more than 9 hours per week. Some of her classes were at night and on weekends. She took classes straight through the summers.

   
   

5. Beginning in June of 1983, Petitioner started working with Executive Caterers. That position was a full-time job and she was paid on a weekly basis. Executive Caterers handled functions such as weddings, etc. for a synagogue. The company was responsible for managing and coordinating the renovations of the facilities at the synagogue. Her employer, Sabino Demieri, testified at the hearing and confirmed that he allowed Petitioner to arrange her work schedule around her classes. Petitioner was expected to and did work between 35 to 40 hours per week and sometimes more. Mr. Demieri also confirmed that Petitioner's employment with Executive Caterers was exclusively limited to coordinating renovations to the existing facilities and her duties consisted of interior design work.

   
   

6. Throughout the time that Petitioner worked with Executive Caterers, the company was involved in renovations of the facilities. Renovations were undertaken with respect to the ballroom, the reception area, the lobbies, two bathrooms and the bridal room. Petitioner no longer has any of the drawings related to these projects. As part of her work, Petitioner prepared electrical ceiling plans, lighting plans and a space plan. As part of her space planning, she created closets and moved non-load bearing walls. She picked wall coverings, colors and furnishings.

   
   

7. Petitioner worked for Executive Caterers from 1983 to sometime in l985. During that time, she also did interior design work for other groups and individuals on the side. In October of 1983, Petitioner prepared a floor plan showing the placement of tables and lighting for a proposed restaurant called the Grill. The restaurant was being developed by some of

   the people involved with Executive Caterers, however, Petitioner was paid separately for her work on the Grill. The plans prepared by Petitioner included a reflective electrical ceiling plan. For reasons not pertinent to this case, the developers of this restaurant decided not to go forward with the project and the facility was never constructed.

   
   

8. In December of 1983, Petitioner prepared plans for a proposed office renovation for Outpatient Services, a medical clinic. The plans included a floor plan and lighting plan for the lobby, clerical and reception areas. The plans included a space utilization plan and a reflective lighting plan. The plans were submitted for bid, but work was never commenced.

   
   

9. In December of 1984, Petitioner prepared a site plan for a home owned by Ken Williams. These plans (which were identified at the hearing, but were not transmitted with the rest of the blueprints in Petitioner's Composite Exhibit 7) included a floor plan with the electrical schedules shown on the plans, and house elevations.

l0. In 1984, while Petitioner was still employed by Executive Caterers, she was retained by Scott Heiken to design renovations for his house. The discussions regarding this work began sometime in 1983. Petitioner actually prepared the plans during 1984. While the plans relating to this work are no longer available, Mr. Heiken testified regarding Petitioner's preparation of those plans. As part of the plans, Petitioner designed the kitchen, living room and dining room areas. These plans involved moving certain non-load bearing walls and the design of a pass through area in the kitchen. Petitioner also prepared plans showing electrical fixtures and lighting fixtures prior to the commencement of the work. These plans were reviewed with the client and the work was successfully completed in 1984.

1. Petitioner began her own business, Interiors By Janet, sometime in 1984 or 1985. Petitioner has held occupational licenses for this business beginning with the year ending September, 1985 through the present.

   
   

2. Sandy Samole, a licensed interior designer, has known Petitioner since approximately 1985 and she has been aware of Petitioner functioning as an interior designer throughout the whole time that she has known her.

3. Petitioner is a member of the Interior Design Guild ("IDG") an organization made up of interior designers in South Florida. IDG has two levels of membership. Those individuals who do not meet the qualifications to be called designers are affiliate members as opposed to professional members. This distinction has been in place for several years. Petitioner is First Vice President and has a professional membership in IDG. In 1988, Petitioner passed an exam given to prospective design members of IDG. While passage of the IDG exam is not a basis for licensure under the statute, it does confirm Petitioner's focus on the design aspects of the business during the pertinent time period. There is apparently a rivalry between IDG and ASID. It has been suggested that there is a reluctance to accept and/or recognize design members of IDG for purposes of licensure. Those issues are beyond the scope of this hearing.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

   
   

5. A specific procedure for licensure as an interior designer without examination is provided by Section 21 of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida. This provision has not been codified in the Florida Statutes because it is time-limited and applies only to a particular group of potential applicants. In pertinent part, Section 21(1)(b) as amended provides for "grandfathering" certain individuals who apply for licensure as an interior designer prior to January 1, 1990. This "grandfather" provision is the basis of Petitioner's claim of entitlement to licensure without examination.

6. Section 21 of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida, provides, in pertinent, part, as follows:

   
   

   1. Any person who applies for licensure as a registered interior designer and remits the application and initial licensure fees by January 1, 1990, shall be licensed by the [D]epartment [of Professional Regulation] without taking the examination or otherwise meeting the qualifications of s.

      481.209(2), Florida Statutes, provided that the applicant:

      
      

      * * *

      
      

      (b) Has used or been identified by the title "interior designer" and has at least 6 years of interior design experience.

      
      

      * * *

      
      

      (3) A person shall be deemed to have used or been identified by the title "interior designer" within the meaning of this section if such person demonstrates to the satisfaction of the [B]oard [of Architecture and Interior Design3 that such person was, either on his own account, which means self- employed, or in the course of regular employment, rendering or offering to render to another person interior design services as defined in s. 481.203(8), Florida Statutes,. . . .

      
      

7. Since this is a case in which Petitioner is seeking to establish her qualifications for licensure without examination, the Petitioner has the burden of establishing her qualifications under Section 21(1)(b) by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981): Balino v. Department of Health and Rehabilitative Services, 348 So. 2d (Fla. 1st DCA 1977). Specifically, an applicant who seeks to establish that the initial review of her application was incorrect, must show that the agency's initial decision was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex ref. Glaser v. J.M. Pepper,

   155 So. 2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Professional Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

   
   

   A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic.

   Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

   
   

8. "Interior design services," as defined in Section 483.203(8), Florida Statutes, are "design services which do not necessarily require performance by an architect, including consultations, studies, drawings, and specifications in connection with reflected ceiling plans, space utilization, furnishings, or the fabrication of nonstructural elements within and surrounding interior spaces of buildings: but specifically excluding mechanical and electrical systems, except for specification of fixtures and their location in interior spaces."

   
   

9. "Interior design services," as defined in Section 483.203(8), Florida Statutes, are distinguishable from "interior decorating services," which are described in Section 481.229(6), Florida Statutes, as including "the selection or assistance in selecting surface materials, window treatments, wallcoverings, paint, floor coverings, surface mounted lighting, or loose furnishings not subject to regulation under applicable building codes." The latter services do not involve the performance of design-oriented tasks.

   
   

10. The Department has interpreted the six years of experience to mean six years of full-time employment. Additionally, the Department has determined that "interior design experience" requires a showing of experience such as conferring with clients to review their design needs, preparing drawings to depict a space meeting those needs, preparing color boards or their equivalent, outlining electrical and plumbing fixtures, selecting options for furnishings or cabinetry, selecting options for fabrics and paints, and preparing floor plans and reflected ceiling plans with all pertinent data shown.

11. In this case, Petitioner has shown by a preponderance of the evidence that she has at least six years experience as an interior designer. Additionally, Petitioner has demonstrated she has performed services for clients in each of the areas of experience outlined by the Department's expert, Mr. House, during the appropriate time period.

    
    

12. Respondent contends that some of Petitioner's experience while working at Executive Caterers, including choosing wall papers, draperies, rugs, etc., falls within the definition of interior decoration rather than interior design. Therefore, Respondent argues that Petitioner has not demonstrated six years of interior design experience. This contention is rejected. The evidence established that throughout the period that Petitioner worked for Executive Caterers, her work involved elements of both interior design and interior decorating. The boundaries between the two areas are often unclear and it is arbitrary to deny Petitioner credit for her full term of employment with Executive Caterers simply because some of the work could also be classified as interior decorating. Certainly, every job undertaken by a designer does not require the full range of skills expected of a designer. Petitioner has established that she has experience from 1983 to the present with the broad range of skills required of an interior designer. In sum it is concluded that the Petitioner's work experience complies with subparagraph (13(b) 1 of the licensure without examination section.

    
    

13. Accordingly, Petitioner's application for licensure, without examination, as an interior designer pursuant to Section

23 (1)(b) of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida, should be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMNENDED that the Board of Architecture and Interior Design enter a Final Order finding that Petitioner is qualified for licensure, without examination, as an interior designer pursuant to Section 21(1)(b) of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida.

DONE and ENTERED this 27 day of February, 1992, at Tallahassee, Florida.

J. STPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27 day of February, 1992.

COPIES FURNISHED:

Angel Gonzalez, Executive Director Department of Professional Regulation/ Board of Architecture & Interior Design Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Pau1 M. Zisholtz, Esquire Crocker Center, Tower I 52430 Town Center Circle Suite 105

Boca Raton, Florida 33486

Arthur R. Wiedinger, Esquire Off-ice of the Attorney General Department of Legal Affairs Board of Architecture

Interior Design

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

APPENDIX

Only Respondent submitted proposed findings of fact. The following constitutes my rulings on those proposals.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in the Preliminary Statement and in Findings of Fact 1,

2. Adopted in substance in Findings of Fact 2.

3. Addressed in Conclusions of Law 5 and 6.

4. Addressed in Conclusions of Law 5 and 6.

5, Addressed in Conclusions of Law 5 and 6.

1. Addressed in Conclusions of Law 5 and 6.

2. Adopted in substance in Findings of Fact

   3 and 4.

3. Adopted in substance in Findings of Fact 5.

4. Adopted in substance in Findings of Fact 6.

5. Adopted in substance in Findings of Fact 7.

6. Adopted in substance in Findings of Fact 7.

7. Adopted in substance in Findings of Fact 8.

8. Adopted in substance in Findings of Fact 9.

9. Adopted in substance in Findings of Fact 10.

10. Adopted in substance in Findings of Fact 6.

11. Subordinate to Findings of Fact 6.

12. Adopted in substance in Findings-of Fact

13. Adopted in substance in Findings of Fact 12.

14. Subordinate to Findings of Fact 12.

15. Subordinate to Findings of Fact 5 and 6.

16. Subordinate to Findings of Fact 5 and 6.

17. Subordinate to Findings of Fact 5.

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommenced Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000076

Orders for Case No: 91-000076