STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSSELL G. BRABEC, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6291

)

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on January 6, 1992, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, to consider whether the Petitioner had abandoned his application for licensure and, if not, was the Petitioner qualified for licensure.

APPEARANCES

For Petitioner: Mr. Russell G. Brabec, pro se

2079 Cynthia Drive

Tallahassee, Florida 32303

For Respondent: Arthur R. Wiedinger, Esquire

Assistant Attorney General The Capitol, Suite 1603

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUES

1. Did the Petitioner abandoned his application for licensure?

   
   

2. Does the Petitioner meet the qualifications for licensure?

PRELIMINARY STATEMENT

The Petitioner applied for licensure on December 14, 1989, filing with the Department of Professional Regulation a completed license application for interior designer together with the applicable fee. On January 2, 1990, the Department notified the Petitioner that it had not received his references and could not verify six years of work experience. Because Mr. Brabec lived in Tallahassee, he checked with the Department's office. The Department's personnel advised the Petitioner that the forms, which had been provided to the Petitioner by the Board to be sent to the Petitioner's clients, had not been received by the Board.

Subsequent to January 2, 1990, Mr. Brabec contacted his former clients and prevailed upon them to respond to the Board. The Department received a letter from Dr. Rayburn Blair, Pastor of Temple Baptist Church in Tallahassee, Florida dated January 3, 1990 and received by the Board on January 10, 1990. Another

form completed by Ben Engbrecht and notarized on January 16, 1990, was also included in Petitioner's file, although it does not bear the Department's date stamp.

An employment verification form notarized and signed by Ms. V. J. Putnam on January 30, 1990, was received by the Board which reflected the Petitioner's employment as an interior designer by the Putnams between 1975 and 1982. A client form completed and notarized on March 20, 1990 by Kate Christopulos also had been returned to the Board, although there is no indication when this form received by the Board.

Having received the information indicated above, the Department advised Mr.

Brabec on June 26, 1990, that the responses which had been provided by his clients in "weren't complete," and "weren't on the forms provided."

On November 5, 1990, the Board received a client form from Dr. J. J. Hintikka, to which was attached a lengthy statement prepared by Dr. Hintikka outlining the work performed for him by the Petitioner. Pastor Rayburn Blair completed the Department's form and forwarded to the Board on March 29, 1991 with a copy of his earlier letter attached. These submissions specifically addressed the concerns raised by the Board on June 26, 1990.

On January 30, 1991, the Department advised Mr. Brabec that he was being denied because his application did not show sufficient evidence that he had met the requirements of Chapter 481, Part I, and Chapter 89-19, Section 121, Laws of Florida.

On August 21, 1991, the Department declared that Mr. Brabec's application was abandoned, and advised him of his right to a hearing. Mr. Brabec timely requested a hearing, and the Department forwarded his request to the Division of Administrative Hearings in September of 1991.

During the hearing, to simplify the issues, the Hearing Officer made a partial finding of fact based upon the evidence which had been presented that the Petitioner had not abandoned his application.

The Respondent Board filed a proposed finding which was read and considered addressing the issue of Petitioner's qualifications. Appendix A states which of the proposed findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. The Petitioner, Russell G. Brabec, filed an application for licensure as an interior designer on December 14, 1989, together with the applicable fees, with the Board on December 14, 1989. Within 30 days, the Board advised the Petitioner that it had not received the client forms and reference forms required to assess his application.

   
   

2. After being placed upon notice that his application was incomplete, Mr. Brabec continued to have contact with the Board and its staff. Client forms and additional references continued to be filed on his behalf until March 1991. These materials are outlined in detail in the preliminary statement above, and incorporated by reference at this point in the Findings of Fact and amplified below. The record shows a continuing effort on the part of the Petitioner to perfect his application, and the Petitioner did not abandon his application.

3. The Board received a client form from Ben H. Engbrecht indicating the Petitioner had consulted on the renovation of several areas of an educational building, developing a master plan for the entire building. The Petitioner was able to direct the completion of phases 1 and 2 of the renovation. Although the form does not indicate the institution at which the work was performed, the Petitioner's testimony clarified that Mr. Engbrecht's references were to Sioux Falls Teacher College where the Petitioner had been a member of the faculty.

   The information provided by Engbrecht establishes that the Petitioner consulted on design work between February of 1984 and July of 1985.

   
   

4. The Board received a client form completed by Kate Christopulos on March 26, 1990, which indicated that the Petitioner had done three projects for the client. In 1983, the Petitioner was in charge of design and renovation of a restaurant and coordinated all contractors in interior design for the client who stated that the did a "great job." In 1985, the Petitioner assisted in the design of another restaurant. The client stated that he was easy to work with and "came up with great ideas." In 1986, the Petitioner designed the interior of the client's home.

   
   

5. At the hearing, the Petitioner had photographs of the restaurants he had planned for the Christopulos' upon which he pointed out the walls, the ceilings and the serving fixtures which he had designed. The Petitioner's testimony is consistent with, and substantiated by, a letter dated June 27, 1990, from Kate Christopulos which is contained in the Board's file. Said letter reflects that the Petitioner's firm, Brabec Interiors, was first retained by the client in 1983 to complete their new home and their first restaurant, Chris' Grill. The Petitioner not only designed the interior, including the carpets, tables, chairs and draperies, but selected the tableware. The letter continues to point out that in 1986, the Petitioner designed the Time Out Restaurant, integrating a athletic theme which the client described as "looking great and being timeless." Kate Christopulos closes her letter by pointing out that the Petitioner had done six other projects for her, and that if the Board desires more detail, they can call her.

   
   

6. The Board received an employment verification form completed by Valerie

   J. Putnam on January 19, 1990. The form indicates the Petitioner was employed as an interior decorator from 1975 until 1982. The Petitioner testified regarding work done for the Putnams, and clarified that they were clients as opposed to his having been employed within a business operated by the Putnams. The Putnams' response, albeit on the wrong form, substantiated that the Petitioner was holding himself out as an interior decorator between 1975 and 1982. Ms. Putnam indicated in her answers to the form's detail questions that the Petitioner had substantial experience in programming (consultation and analysis), design concept analysis, and specifying furnishings and materials, and adequate experience in preparing drawings, drafting, consulting with other contractors, and project management. Notwithstanding Putnam's terming the Petitioner an "interior decorator," the work she described is consistent with the activities of an interior designer.

   
   

7. The Board received a client form from Dr. Jaako J. Hintikka on November 5, 1990. The form and its attachments indicate that between June and August of 1988, the Petitioner planned and supervised the complete redecoration of a 4500 square foot home on Tipperary Drive in Tallahassee, Florida. This project involved the creation of two libraries, extensive new flooring, extensive wallpapering and painting, the placement of furniture and the acquisition of new furnishing, and placement of works of art, et cetera. The Petitioner, referring to photographs of this project, pointed out details of the design work he

   performed to include lighting design and planning an environment with constant humidity. The form also addresses the period January to May 1990 when the Petitioner designed and supervised the interior construction and decoration of a new residence which the client had built for him by Gritsmill Construction Company in Marlborough, Massachusetts. Hintikka states that this project literally involved all aspects of the interior of the house from finalization of the floor plans through placement of works of art. The Board's file contains a xerox copy of pictures of the exterior of a home and interior of one room, together with notes by the Petitioner to the client discussing a range of issues from dehumidifiers to dutch tiles and the fireplace. It closes with an indication that the Petitioner had been in contact with a landscape designer, and was in the process of developing a long-range landscape plan for the new house. See transcript, pages 95 and 100, where the Petitioner details the work which he did for Dr. Hintikka on the two houses in which he designed the interiors.

   
   

8. The Board received an employment verification form on July 31, 1990, from Collier Interiors in Tallahassee, Florida. This form indicated that Collier had employed the Petitioner from November of 1987 until July 30, 1990. The Board appeared to be satisfied with the nature of his practice while with Collier as no questions were raised concerning this period of time.

   
   

9. The Board's file contains two submissions from Rayburn Blair, Pastor of the Temple Baptist Church in Tallahassee, Florida. Pastor Blair wrote the Board a letter dated January 3, 1990, in which he states that he has been acquainted with the Petitioner as a full-time practicing interior designer since 1989. Blair states that he met regularly with Brabec who was the church's chief consultant on matters of design and decoration at the church, at North Florida Christian School, and at W65BG Television Station. On March 25, 1991, Pastor Blair submitted the client form which stated that the Petitioner provided Temple Baptist Church with consultations and studies leading to drawings for the new platform. In the Petitioner's testimony he identified on a picture, which was introduced, the stage, wall units, lights, podium, microphones in the podium, and wiring for the podium lights and microphone which Petitioner designed, together with the stairs servicing the balcony. The Petitioner also completed plans for the baptistry and stair wells. The Petitioner's testimony is consistent with Pastor Blair's letter.

   
   

10. In addition to his testimony about the clients above who responded to the Board, the Petitioner also produced photographs at the hearing of additional work in had done during the period 1980 through 1985. This included work for Bob Larson for whom the Petitioner developed an overall design and laid out of a restaurant, and supervised the installation of the electrical lights and plumbing, to include steam tables. Petitioner's work included graphics, design of menus, interior wall covers, et cetera. Petitioner also designed a second set of restaurants called "Rembrandt's" for the same client. See Transcript, pages 82 and 91.

    
    

11. The Petitioner stated that he spent a year in graduate school at Florida State during which time he did a number of projects for churches, offices and homes in the area. Thereafter, he was employed as a designer with Collier Interiors. See Transcript, Page 91.

    
    

12. In summary, the Putnam response covers the period between 1975 and 1982. The Christopulos letter and form cover the period 1983 through 1986. The Engbrecht form covers the period February 1984 through July 1985. The Collier form covers the period 1987 through December of 1989. The Blair letter and form

    covers the period from 1989 until 1991. The Hintikka form and letter covers the period June to August 1988 and January to May 1990. During the period from 1982 until present, the Petitioner has held himself out regularly as an interior designer based upon the responses received by the Board and Petitioner's testimony about the work done for the clients. His testimony is substantiated by the responses received by the Board, and is uncontroverted. Not a scintilla of evidence was introduced by the Board that the Petitioner did not perform the work about which he testified.

    
    

13. On January 30, 1991, the Board sent the Petitioner a letter which the Petitioner received. This letter stated that the Petitioner's application was denied because the application did not show sufficient evidence that the Petitioner met the requirements of "Florida Statutes 481, Part I and Chapter Law 89-19, Section 21." The letter continues,

    
    

    A review of your application by the Interior Design Committee shows that you did not sufficiently document six years of Interior Design experience. In order to receive reconsideration you must submit three additional detailed client reference forms that span six years of experience. These letters must contain both the time and time frame and a detailed description of services provided. You must prove that you meet the definition of interior designer for a full six year period. The Committee has also requested that you send in samples of your interior design plans and drawings.

    
    

14. On August 21, 1991, the Board sent the Petitioner a letter which the Petitioner received indicating that the Board deemed the Petitioner's application abandoned and advising the Petitioner of his right to a hearing on the denial of his application.

    
    

15. The information provided by the responding clients and the Petitioner reveal that the Petitioner has been asked by several clients to perform additional projects for them. Clients for whom he did commercial work, engaged him to do work in their homes, and vise versa. One of his clients has transported the Petitioner from Tallahassee to Massachusetts in order that the Petitioner could continue to supervise completion of the interior of the client's home. These facts speak positively to the quality of the Petitioner's work.

    
    

16. The record above shows that Mr. Brabec did not abandon his application, but sought to have clients provide the Board with the information sought until such time as this appeared to be a futile effort. Sufficient information had been provided to the Board by January 30, 1991 for it to make a determination of whether the Petitioner has the requisite experience. The information provided, as summarized above, reflects that the Petitioner has engaged in consulting, performing studies, drawing plans and providing specifications for space utilization of restaurants, churches, offices and homes in Florida, South Dakota and Massachusetts since 1982.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. This Order is entered pursuant to Section 120.57, Florida Statutes.

    
    

18. The initial issues in this case were whether the Petitioner had abandoned his application, and whether the Petitioner had held himself out as an interior designer for six years qualifying for licensure without examination.

    
    

19. As the case was being presented, it became evident that the facts revealed a continuing effort by the Petitioner to perfect his application, and that leaving the abandonment issue unresolved was interfering with the presentation by both parties of the evidence on the issue of the Petitioner's qualifications. Therefore, a finding was made on the abandonment issue at the hearing, and that decision is recapitulated within the framework of this order. The facts revealed a continuing effort to comply with the Board's requests until it became apparent that providing additional information was futile. At that point, sufficient evidence was contained in the file for the Board to reach a determination upon the merits, advise the Petitioner of that decision, and provide him with a point of entry to challenge the Board's determination. The Petitioner never abandoned his application.

    
    

20. Section 21, Chapter 88-19, 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 department (of professional regulation) without taking the examination 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 be identified by the title "interior designer" ... if such persons demonstrates

       ... that such person was, either on his own account (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.

       
       

21. Section 481.203(8), Florida Statutes, provides:

    
    

    (8) "Interior design" means 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

    . . . .

    
    

22. Although the record reveals that the Petitioner had designed or drawn plans for some of the projects, every one of the clients' responses evidenced at least consultation on space utilization or furnishings or fabrication of nonstructural elements within buildings. "Consultation" is defined commonly as "conferring" or "discussing." Therefore, if the Petitioner discussed or offered himself to the public to discuss a project involving space utilization, furnishings, or fabrication of nonstructural elements within a building, he engaged in "interior designing."

    
    

23. The material contained in the Board's file shows that the Petitioner rendered or offered to render interior design services from the 1982 through the date of the hearing. The Petitioner's testimony reveals that during this period the Petitioner consulted with clients, performed studies for clients, prepared proposals for clients on space utilization, furnishings, lighting, sound systems, and fixtures. In some instances, he was retained to supervise the completion of the interior. His services were utilized by satisfied clients on more than one occasion. The Petitioner's substantial, competent evidence regarding his activities was un-rebutted by the Respondent.

    
    

24. It is determined that by rendering or offering to render to another person interior design services to include consultations, studies, drawings, and specifications in connection with reflecting ceiling plans, space utilization, furnishings or the fabrication of non-structural elements within and surrounding interior spaces of buildings from 1982 until the present the Petitioner met the criteria stated in Section 21, Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida.

    
    

25. The Respondent's Proposed Recommended Order correctly states that the burden is upon the Petitioner to establish his qualifications for licensure without examination. The Respondent's conclusion of law that the applicant who seeks to establish that the initial review of his application was incorrect must show that the agency's initial decision was arbitrary and capacious is in error. The case of Harrick vs. Department of Professional Regulation, 484 So.2d 133, (Fla. 3d DCA 1968), cited for that proposition is not an application case, but an examination case. An applicant, as opposed to an examinee, need only establish by the preponderance of the evidence in a de novo proceeding that he is qualified for licensure.

    
    

26. The proposed recommended order also incorrectly interprets the exemption provided in Section 481.229(6), Florida Statutes, which exempts from the provisions of Chapter 481 those persons offering "interior decorator services" such as the selection or assistance in selecting surface materials, window treatments, wall coverings, paint, floor coverings, surface mounted lighting, or loose furnishings not subject to regulation under applicable building codes. It is incorrect to consider the selection of surface materials, window treatments, wall coverings, paint, floor coverings, surface mounted lighting, or loose furnishings as outside the sphere of interior design. An interior designer might assist a client with any of these selections; however, interior design goes beyond these exempted activities to provide the services mentioned in Section 481.203(8), Florida Statutes.

27. The proposed recommended order also states that the Board has interpreted the requirement that the Petitioner must demonstrate six years of interior design experience to require experience "spanning six years, rather than isolated experiences over some six-year period." It is unclear what the Board means by the term "experience spanning six years" and "isolated experiences over some six-year period." The proposed recommended order concludes, "Petitioner must establish 72 months of interior design experience to qualify for licensure without examination." If the Board interprets "has at least 6 years of interior design experience", as used in the statute, to require six continuous years of experience, its construction is not consistent with the statute. While the Board may interpret ambiguous provisions of the law, those which are unambiguous are not subject to such interpretations. If the legislature had intended to require continuous years of experience, the legislature would have said "six continuous years of experience." This is not a area in which special expertise is controlling because everyone has a working knowledge of the English language. See Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454, at 457, ( 1st DCA-1980).

    
    

28. The Petitioner established that he rendered or offered to render consultations, studies, drawings, and specifications in connection with reflected ceiling plans, space utilization, furnishings, or fabrication of non- structural elements within and surrounding interior spaces of buildings continuously from 1982 until the date of the hearing in January 1992. A period far in excess of the 72 months or six years referenced by the Board. The attention of the Board is specifically invited to the provisions of Chapter 89- 19, Laws of Florida, quoted by the Board in its proposed recommended order which states:

    
    

    (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 . . . that such person was . . . rendering or offering to render to another person interior design services as denied in Section 481.203(8), Florida Statutes, . . ..

    
    

29. The statute distinguishes between rendering the service or offering to render the service. The Petitioner has established that during the period 1982 to 1992 he was engaged in rendering this service to the clients who filed client forms. If he rendered these services to t In the absence of any evidence to the contrary, the Petitioner has met the criteria set forth in Section 21 of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board of Architecture and Interior Design license the Petitioner.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of April 1992.

COPIES FURNISHED:

Mr. Russell G. Brabec, pro se 2079 Cynthia Drive

Tallahassee, Florida 32303

Arthur R. Wiedinger, Esquire Assistant Attorney General The Capitol, Suite 1603

STEPHEN F. DEAN

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 10th day of April 1992.

Tallahassee, Florida 32399-1050

Angel Gonzalez, Executive Director Board of Architecture & Interior Design Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

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 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: 91-006291

Orders for Case No: 91-006291