STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIVIAN HOOVER HEEKE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7549

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) ARCHITECTURE AND INTERIOR DESIGN, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 6, 1991, in West Palm Beach, Florida, before Donald D. Conn, who was at the time a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kathryn M. Beamer, Esquire

Suite 560 Flagler Federal Tower 1700 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401

B. Allen Heeke, Jr., Esquire

324 Royal Palm Way, 3rd Floor Palm Beach, Florida 33480-4352

For Respondent: Arthur R. Wiedinger, Jr., Esquire

Assistant Attorney General The Capitol, Suite 1603

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

Whether Petitioner 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 employment history?

PRELIMINARY STATEMENT

By letter dated August 14, 1990, Petitioner requested a formal hearing regarding the Board of Architecture and Interior Design's (Board's) preliminary determination to deny 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. On November 29, 1990, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the hearing Petitioner had requested. Hearing Officer Donald

D. Conn was subsequently assigned the case.

At the formal hearing held in this matter on February 6, 1991, Petitioner testified on her own behalf. She also presented the testimony of Jerry McFarland, who was the Vice-President of Administration at Petit Contract Interiors, Inc., when Petitioner was employed there. In addition, Petitioner offered two exhibits into evidence, both of which were received by the Hearing Officer. Respondent presented no evidence at the hearing.

On March 18, 1991, Hearing Officer Conn issued his Recommended Order in the instant case. In his Recommended Order, he recommended that the Board "enter a Final Order dismissing Petitioner's challenge to the determination that she is not qualified for licensure as an interior designer" pursuant to Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida.

On August 8, 1991, the Board issued an order remanding the case to the Division of Administrative Hearings "for the entry of an Amended Recommended Order based upon the record developed at the February 6, 1991 hearing [conducted in this case by Hearing Officer Conn]." 1/ The Board explained in its order that it was remanding the matter because "the Hearing Officer apparently may have erroneously excluded evidence of individuals from his consideration because of his apparent opinion that a certain licensure status was necessary in order for . . . testimony to be competent." In addition, in an effort to eliminate "confusion as to how the Board would credit part-time interior design employment," the Board indicated in its order that it was its position, "as a matter of law, that, so long as an individual is engaged solely in the practice of interior design, then part-time employment may be credited at its pro-rata share of the normal work week."

Hearing Officer Conn had left the employ of the Division of Administrative Hearings prior to the Division's receipt of the Board's August 8, 1991, remand order. Accordingly, the case was assigned to the undersigned Hearing Officer. In view of Hearing Officer Conn's unavailability to issue the Amended Recommended Order sought by the Board, Petitioner, on August 26, 1991, filed a motion requesting that the Division "remand the cause back to the [Board] for final agency determination" inasmuch as "Donald D. Conn . . . is no longer a hearing officer" and therefore "not legally able to give a clarification on remand." Petitioner argued in her motion that "[i]t would be highly prejudicial and improper for a non-hearing officer or another hearing officer to review the file since this was a hearing held in front of Donald D. Conn [and] only his opinion can be given to clarify the points on remand." According to the motion's certificate of service, a copy of the motion was served on Respondent by United States Mail on August 21, 1991.

On August 30, 1991, the undersigned Hearing Officer issued an order directing Respondent to respond in writing to Petitioner's motion on or before September 6, 1991. The order further provided, in pertinent part, as follows:

In its response, Respondent shall indicate what course of action it believes the Division should take in the instant case, given the unavailability of the previously assigned Hearing Officer. If no timely response is filed, the assumption will be made that Respondent is in agreement that the Division should relinquish jurisdiction of this matter.

On September 6, 1991, Respondent filed a response in opposition to Petitioner's motion for remand. In its response, Respondent argued that "a successor Hearing Officer could effectively perform the tasks requested in the Board's remand, however, in light of Petitioner's objection to consideration on

the existing record, the only other option would be a hearing de novo on the issue of qualification of the Petitioner for licensure."

A hearing on the issues raised in Petitioner's motion for remand was held by telephone conference call on September 9, 1991. On September 11, 1991, the undersigned Hearing Officer issued an order denying Petitioner's motion for remand 2/ and directing the parties to advise him in writing on or before September 24, 1991, "of their respective positions on the issue of whether, in light of the Hearing Officer's ruling on Petitioner's motion for remand, additional evidentiary proceedings should be conducted in this matter." On September 24, 1991, Petitioner filed a response to the undersigned Hearing Officer's September 11, order. In her response, Petitioner declined to state a position on the issue of whether additional evidentiary proceedings should be conducted in this cause. Respondent filed its response to the Hearing Officer's September 11, 1991, order on September 25, 1991. Respondent, in its response, expressed a willingness "to present any additional argument or evidence which the hearing officer finds necessary," but indicated that it held the position that "the existing record is adequate" and that the undersigned Hearing Officer should base his Amended Recommended order "upon the existing record and the Respondent's Order of Remand."

Having carefully considered the entire record in the instant case, the undersigned Hearing Officer is of the view that additional evidentiary proceedings are unnecessary and that the instant Amended Recommended Order should be based upon the existing evidentiary record, as directed by the Board in its remand order.

FINDINGS OF FACT

Based upon the record evidence, the following Findings of Fact are made:

3/

1. By application dated September 19, 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 25, 1991.

   
   

2. The Board, by letter dated July 25, 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 do not have

   6 years of experience and you do not meet the definition of Interior Design. The Committee felt that it was impossible for you to have 6 years of full-time, full-scale Interior design experience since you were in school full time in 1983 and 1984. They also felt that being a librarian in a design firm, a show room manager, and assistant designer would not qualify as

   full-scale interior design.

   
   

3. Prior to January 1, 1990, Petitioner used, and was identified by, the title "interior designer."

4. Prior to January 1, 1990, Petitioner was employed by: Carriage House Interiors, d/b/a Eclectic International (Eclectic) for 13 months; Curzon Designs (Curzon) for five months; J.J. Chalk (Chalk) for 25 months; and Stevenson Design and Builders (Stevenson) for 5 months. These were all full- time positions which regularly involved the rendering of interior design services, including consulting with clients concerning the utilization of interior spaces and preparing for them blueprints and drawings containing Petitioner's recommendations regarding how these spaces should be utilized.

   
   

5. For 14 months during 1984 and 1985, Petitioner was employed on a full- time basis by Petit Contract Interiors, Inc. (Petit), a design firm which also manufactured and sold furniture.

   
   

6. During a typical workday, she performed the duties of an assistant designer, showroom manager and librarian.

   
   

7. Approximately 60-70 percent of her workday generally was spent as an assistant designer, during which time she did interior design work similar in nature to the work she did at Eclectic, Curzon, Chalk and Stevenson.

   
   

8. As a showroom manager and librarian, she also rendered interior design services on a regular basis.

   
   

9. When she was acting in her capacity as the showroom manager, Petitioner met with walk-in clients and discussed their needs. Following such consultations and based upon the information provided by the clients, she prepared drawings depicting her plans as to how the clients could best utilize the interior spaces under discussion. She then assisted the clients in making their purchases.

   
   

10. Petit had one of the largest design libraries in the southeastern United States. It was stocked with source materials utilized by the interior design community.

    
    

11. As the librarian, Petitioner was responsible for organizing the library and updating its materials, tasks that she often had to perform during her overtime hours. In addition, Petitioner assisted those interior designers who used the library. The assistance that she provided at times involved consulting with clients and preparing drawings. It was essential for Petitioner to have a working knowledge of interior design to fulfill her librarian duties.

    
    

12. Petitioner attended the Florida Art Institute (Institute) from March, 1982, until June, 1984, when she graduated with an Associate Arts degree in interior design. During her first two or three semesters at the Institute, she had classes from 1:00 p.m. to 5:00 p.m., Monday through Friday. Thereafter, her classes were scheduled only in the morning, from 8:00 a.m. to 12:00 noon each weekday.

    
    

13. While a student at the Institute, she was "head manager" of three student interior design projects. 4/

    
    

14. Petitioner was employed at least a portion of the time that she was enrolled as a student at the Institute. During this period of time, she worked for Roy F. Sklarin Interiors (Sklarin), Mark B. Meyer and Associates (Meyer), and the Good Wood Frame Shop (Good Wood).

15. Petitioner worked for Sklarin for six months rendering interior design services under the supervision and direction of Mr. Sklarin. She held a part- time position. Typically, she had a 20 to 25 hour work week.

    
    

16. Petitioner's employment with Meyer lasted 11 months. Her position was a full-time one.

    
    

17. Meyer has a large showroom in which it displays carpeting, fabric, wall covering and furniture. Petitioner was the manager of the showroom. It was her responsibility to maintain the showroom and make sure all items were in their proper place. As the showroom manager, Petitioner consulted with interior designers and their clients and assisted them in selecting merchandise. This involved reviewing specifications, floor plans and other drawings.

    
    

18. Petitioner was employed for 12 months at Good Wood. 5/ She served as a designer, appraiser and artistic consultant. Her duties included the appraisal of art work for clients. In addition, she consulted with clients and gave them advice regarding the display and placement of their art work. This involved the drawing of elevations and floor plans.

    
    

19. Prior to attending the Institute, Petitioner worked at Pierre Deux, the Norton Art Gallery (Norton) and the James Hunt Barker Art Gallery (Barker).

    
    

20. Pierre Deux is a boutique that sells specialized fabrics and antiques. Petitioner worked there on a full-time basis for 16 months as designer/sales person. In discharging her duties, she regularly met with clients and ascertained their needs. If they wanted window treatments, table skirts, bedspreads or other soft furnishings, Petitioner went to their homes to take the appropriate measurements and, based upon these measurements, prepared specifications and the design to be used in making these items.

    
    

21. While employed at Norton and Barker, Petitioner assisted the curator in deciding where exhibits should be located. 6/

    
    

    CONCLUSIONS OF LAW

    
    

22. 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 Design] 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, . . . .

       
       

23. "Interior design services," as defined in Section 481.203(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."

    
    

24. "Interior design services," as defined in Section 481.201(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.

    
    

25. An applicant, such as Petitioner, seeking a license pursuant to Section 21(1)(b) of Chapter 88-383, Laws of Florida, as amended by Chapter 89- 19, Laws of Florida, has the burden of proving by a preponderance of the evidence that he or she qualifies for such a license. See Florida Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino

    v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner has met this burden in the instant case.

    
    

26. She has shown that, prior to January 1, 1990, she had used, and had been identified by, the title "interior designer" and had accumulated at least a total of 81 months of "interior design experience:" 13 months at Eclectic; 5

    months at Curzon; 25 months at Chalk; five months at Stevenson; 7/ 14 months at Petit; 8/ three months at Sklarin; 9/ and 16 months at Pierre Deux. 10/

    
    

27. Accordingly, Petitioner's application 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, should be granted.

RECOMMENDATION

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

RECOMMENDED 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 in Tallahassee, Leon County, Florida, this 27th day of September, 1991.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1991.

ENDNOTES

1/ Although the Board issued its remand order on August 8, 1991, it was not until September 17, 1991, that the evidentiary record referenced in the order was returned to the Division of Administrative Hearings.

2/ In denying Petitioner's motion, the undersigned Hearing Officer cited Section 120.57(1)(b)11, Florida Statutes, which provides that "[i]f the hearing officer assigned to the hearing becomes unavailable, the division shall assign another hearing officer who shall use any existing record and receive any additional evidence or argument, if any, which the new hearing officer finds necessary."

3/ The proposed findings of fact set forth in the proposed recommended orders previously filed by the parties in this cause have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

4/ The evidentiary record does not reveal how much time she spent on these projects.

5/ The evidentiary record does not reveal the number of hours that Petitioner worked per week at Good Wood. Given the Board's policy of giving only partial credit for part-time work, it therefore is impossible to quantify the interior design experience she attained at Good Wood.

6/ The evidentiary record does not reveal how long she worked at either Norton or Barker; nor does it reflect what her working hours were when she worked at these two art galleries.

7/ That Petitioner should be credited with a total of 48 months of "interior design experience" for the time that she worked at Eclectic (13 months), Curzon (5 months), Chalk (25 months), and Stevenson (5 months) is conceded by Respondent in its proposed recommended order.

8/ While Petitioner devoted only a portion of a typical workday at Petit to her duties as an assistant designer and she spent the remainder of the day acting in her other roles as Petit's showroom manager and librarian, in discharging the duties of these latter two positions she regularly rendered "interior design services" similar to those that she rendered as an assistant designer.

Accordingly, she should receive full credit for her 14 months of full-time employment at Petit.

9/ Petitioner occupied a half-time position at Sklarin. Accordingly, under the policy announced by the Board in its remand order, Petitioner should be credited with three months of "interior design experience" for the six months that she rendered "interior design services" at Sklarin.

10/ Respondent argues in its proposed recommended order that "Petitioner's work at Mark B. Meyer, the Good Wood Frame Shop and Pierre Deux does not meet the definition of interior design but more closely follows the definition of interior decoration." The undersigned Hearing Officer disagrees with this statement to the extent that it purports to characterize Petitioner's job duties at Good Wood and Pierre Deux. Petitioner's testimony establishes that her duties at these establishments went beyond the mere providing of "interior decorating services" and included the regular performance of design-oriented tasks that meet the definition of "interior design services" found in Section 481.203(8), Florida Statutes. The evidence further demonstrates that, for the

16 months that she worked at Pierre Deux, she held a full-time position. The record does not reveal, however, the hours that she worked during the 12-month period that she was employed at Good Wood. Accordingly, Petitioner should receive full credit for the 16 months tht she worked at Pierre Deux and, in the absence of information sufficient to quantify the experience she attained at Good Wood, no credit for the time she was employed at this latter establishment.

APPENDIX TO AMENDED RECOMMENDED ORDER IN CASE NO. 90-7549

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:

Petitioner's Proposed Findings of Fact

1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

2. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. First paragraph, first sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; First paragraph, second, third, fourth, sixth, seventh and ninth sentences: Accepted and incorporated in substance; First paragraph, fifth sentence: To the extent that it states that Petitioner was employed at Chalk for 26, not 25, months, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence; First paragraph, eighth sentence: To the extent that it states that Petitioner was employed at Meyer for six, not 11, months, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence; Second paragraph, first and second sentences: Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Second paragraph, third sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact.

1. Accepted and incorporated in substance.

2. First sentence: Rejected because it is a summary of testimony rather than a finding of fact; Second, fourth and seventh sentences: Accepted and incorporated in substance; Third, fifth and sixth sentences: Rejected because they would add only unnecessary detail to the

   factual findings made by the Hearing Officer.

3. First sentence: Rejected because it is more in the nature of a statement of the case than a finding of fact; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact.

4. Accepted and incorporated in substance.

5. Rejected because it is more in the nature of argument than a finding of fact.

6. Rejected because it is more in the nature of a statement of the case than a finding of fact.

Respondent's Proposed Findings of Fact

1-2. Accepted and incorporated in substance.

1. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is a conclusion of law rather than a finding of fact.

2. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that it states that "[t]he services performed were similar to those performed at Eclectic Designs," this proposed finding has been accepted and incorporated in substance. To the extent that it states that these services "constitute interior design services as defined in Chapter 481, Part I," this proposed finding has been rejected because it is a conclusion of law rather than a finding of fact.

3. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that it states that "Petitioner's experience at J.J. Chalk was similar to that at Eclectic and Curzon," this proposed finding has been accepted and incorporated in substance. To the extent that it states that these services "qualified as interior design services under Chapter 481, Part I," this proposed finding has been rejected because it is a conclusion of law rather than a finding of fact.

4. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that it states that "[t]he services performed were similar to those performed at Eclectic, Curzon and J.J. Chalk," this proposed finding has been accepted and incorporated in substance. To the extent that it states that these services "qualified as interior design services under Chapter 481, Part I," this proposed finding has been rejected because it is a conclusion of law rather than a finding of fact.

5. Accepted and incorporated in substance.

6. First sentence: Rejected because it is a summary of testimony rather than a finding of fact; Second and third sentences: Rejected because they are summaries of evidence rather than findings of fact; Fourth sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

9-14. Accepted and incorporated in substance. COPIES FURNISHED:

Kathryn M. Beamer, Esquire Suite 560 Flagler Federal Tower 1700 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401

B. Allen Heeke, Jr., Esquire

324 Royal Palm Way, 3rd Floor Palm Beach, Florida 33480

Arthur R. Wiedinger, Jr., Esquire Assistant Attorney General

The Capitol, Suite 1603 Tallahassee, Florida 32399-1050

Angel Gonzalez, Executive Director

Board of Architecture and Interior Design 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-079

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 OF TIME 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 RECOMMENDED 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: 90-007549

Orders for Case No: 90-007549