STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VIVIAN HOOVER HEEKE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-8263F

)

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 1, 1992, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kathryn M. Beamer, Esquire

One Clearlake Centre, 12th Floor

250 Australian Avenue South 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

1. Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs incurred in her administrative challenge to Respondent's preliminary determination that, based upon her employment history, she was not 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?

   
   

2. If so, what is the amount of fees and costs to which she is entitled?

PRELIMINARY STATEMENT

On December 23, 1991, following the entry of a final order by the Board of Architecture and Interior Design (Board) finding Petitioner "qualified to be licensed as an interior designer without examination pursuant to Chapter 88-383,

Laws of Florida, as amended by Chapter 89-19, Laws of Florida" (Grandfather Clause), Petitioner filed a petition with the Division of Administrative Hearings requesting that she be awarded attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs incurred in her administrative challenge to the Board's preliminary determination that she was not so qualified. The Board filed a response to the petition on December 31, 1991. In its response, the Board contended, among other things, that its initial determination was substantially justified and that "Petitioner's current counsel, her husband, B. Allen Heeke, . . . improperly included as attorney's fees, services which he provided prior to any written or personal appearance as counsel of record" in the underlying case. On January 2, 1992, Petitioner filed an amended petition for attorney's fees and costs. In her amended petition, Petitioner requested the same relief as she had her original petition, but she provided more detailed allegations in support of her request that she be granted such relief.

At the outset of the final hearing held in the instant cause, the parties agreed that the only issues that needed to be litigated were whether the Board "was substantially justified [in preliminarily determining that Petitioner was not qualified for licensure pursuant to the Grandfather Clause] and whether attorney's fees [incurred] prior to [Attorney Heeke] filing [his] notice of appearance are awardable." Petitioner further indicated that she intended to supplement her amended petition by requesting compensation for additional attorney's fees and costs incurred in connection with this proceeding. The Hearing Officer thereupon advised that the Board would have 20 days from the date of the filing of such a supplement to file a written response disputing the reasonableness of any of these additional fees and costs requested by Petitioner.

A total of four witnesses testified at the final hearing in this cause: Glenn Torcivia, an attorney who practices in Palm Beach County; Thomas DeCarlo, another Palm Beach County attorney; Carl Gerken, a member of the Board of Architecture and Interior Design; 1/ and Susan May, who previously served as a staff assistant for the Board. In addition to the testimony of these witnesses, a total of eight exhibits, seven of which were joint exhibits, were offered into evidence and received by the Hearing Officer. At the conclusion of the evidentiary portion of the final hearing on April 1, 1992, the Hearing Officer announced on the record that post-hearing submittals had to be filed no later than 20 days following the Hearings Officer's receipt of the transcript of the hearing.

On April 6, 1992, and again on April 23, 1992, Petitioner filed separate supplements to her amended petition for attorney's fees and costs. To date, the Board has not filed any response to these supplements.

The hearing transcript was filed on April 17, 1992. The Board and Petitioner filed proposed final orders on May 7, 1992, and May 8, 1992, respectively. The proposed findings of fact set forth in these proposed final orders have been carefully considered and are specifically addressed in the Appendix to this Final Order.

FINDINGS OF FACT

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

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, 1989.

   
   

2. Section 11 of the application form filled out by Petitioner addressed work experience. The form provided the following instructions for completion of this section of the application:

   
   

   On the attached experience record give full information concerning periods of employment which have contributed to your experience as an Interior Designer. Start with your present position and work back, explaining clearly your exact duties and other details of job.

   "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 THE SURROUNDING INTERIOR SPACES OF BUILDINGS;

   BUT SPECIFICALLY EXCLUDING MECHANICAL AND ELECTRICAL SYSTEMS, EXCEPT FOR SPECIFICATION OF FIXTURES AND THEIR LOCATION WITHIN INTERIOR SPACES.

   (IF YOU DID NOT TAKE OR PASS THE NCIDQ EXAM, BUT ARE STILL CLAIMING UNDER SECTION 21, YOU MUST PROVE 6 YEARS OF EXPERIENCE).

   
   

3. Petitioner completed the attached experience record. She indicated thereon that from "1988- ," for a period of eight months, she had been employed as an "Interior Designer" by Eclectic International (Eclectic); from "1988-1988," for a period of five months, she had been employed as the "Director of Design" by Curzon Designs (Curzon); from "1986-1988," for a period of 25 months, she had been employed as an Interior Designer" by J.J. Chalk (Chalk); from "1985-1986," for a period of five months, she had been employed as an "Assistant Designer" by Stevenson Builders and Design (Stevenson); from "1984- 1985," for a period of 13 months, she had been employed as an "Assistant Designer, Librarian [and] Showroom Mgr." by Petit Contract Interiors (Petit); from "1983-1984," for a period of six months, she had been employed as an "Assistant Designer [and] Draftsman" by Roy F. Sklarin Interiors (Sklarin);

   from "1983-1983," for a period of six months, she had been employed as a "Designer [and] Librarian" by Mark B. Meyer and Associates (Meyer); from "1982- 1983," for a period of 12 months, she had been employed as a "Designer & Appraiser [and] Artistic Consultant" by the Good Wood Frame Shop (Good Wood); from "1980-1982," for a period of 16 months, she had been employed as a "Designer [and] Salesperson" by Pierre Deux; from "1979 -1980," for a period of three months, she had been employed as a "Curatorial [Worker]" by the Norton Art Gallery (Norton); and from "1977-1978," for a period of 12 months, she had been employed as the "Manager" by the James Hunt Barker Art Gallery (Barker).

   
   

4. Petitioner provided on her completed experience record the following information regarding the nature of the work she had performed in these various positions:

   Eclectic- All aspects of Interior Design including consulting and advising, drafting, specif[y]ing cabinet plans, space planning, purchasing, furnishing, accessori[z]ing & installation in homes and offices.

   Overseeing construction in all phases and showroom display.

   Curzon- All aspects of Interior Design; consulting with clients, advising space planning & light planning, specif[y]ing cabinet plans, presentations, pricing, purchasing, overseeing construction, furnishing, accessori[z]ing & installation of residential & commercial projects.

   Chalk- All aspects of interior design including consulting & advising, pricing, space planning, electrical & light planning, specif[y]ing cabinet plans, overseeing construction, purchasing, furnishing and accessori[z]ing, and installation of residential and commercial projects.

   Stevenson- Assisting in all aspects of design including consulting, drafting,

   space planning, electrical & light planning, cabinet plans, specif[y]ing, overseeing construction, purchasing, furnishing, accessori[z]ing & installation of residential projects.

   Petit- Assisting in all aspects of design including consulting, drafting, space planning, electrical & light planning, overseeing construction, purchasing, furnishing, accessori[z]ing & installations of commercial projects. Overseeing & managing library and showroom.

   Sklarin- Assisting Mr. Sklarin in all aspects of drafting, space planning, lighting & electrical planning, cabinetry & interior and exterior elevations. Assist in

   fabric choices, furniture choices & purchasing.

   Meyer- Consulting with designers in areas of flooring, wall covering, furniture fabrics, accessories and purchasing of same. Overseeing display in the showroom & taking care of all store samples.

   Good Wood- Appraising art work. Consulting clients over art work, proper display and placement of art work. Drafting & space planning for artwork, accessori[z]ing for residential & commercial projects. [O]verseeing showroom display.

   Pierre Deux- Consulting with clients and designers in fabric & furniture selections, purchasing, ordering of soft furnishings & installation. Desig[n]ing and ordering new soft furnishings for the Boutique, showroom display, inventory, pricing & accounting.

   Norton- Assistant to Curator including all aspects of museum work, consulting, space planning, installation of new exhibits, appraising and cat[e]gorizing, inspecting art work, overseeing d[o]cents, planning education programs for children and adults, inventory, ordering proper maintenance & display.

   Barker- Consulting with clients in appraisal, purchasing, displaying and placement of art work, including space planning, consulting with artists & planning exhibits from space plan to installation.

   Sales and installation displays and secretarial duties.

   
   

5. Appended to Petitioner's completed application form was her resume, which indicated, among other things, that from "1982-1984" she had attended the Art Institute of Fort Lauderdale and during that period of time had received the following "ACADEMIC HONORS:"

   
   

   Award for outstanding academic achievement- Summer 1984.

   First Place- Student Art Competition- Spring 1984.

   Recipient Erlaine Pitts Scholarship- Spring 1984.

   Student Chairman for "Office For Success." Student Chairman of Opus House Showcase Committee- Spring 1984.

   ASID Board of Directors- 1983-1984. President of ASID Student Chapter- 1983-1984. Vice President of ASID Student Chapter- 1982- 1983.

   Award of Merit in Spring Poster Competition- 1983.

   
   

6. Her resume also included the following brief summary of her work experience:

   
   

   1989.

   Eclectic International West Palm Beach, Florida.

   POSITION: Interior Designer. 1988.

   Curzon Designs

   Boca Raton, Florida. POSITION: Director of Design. 1986-1988.

   J.J. Chalk

   West Palm Beach, Florida.

   POSITION: Project Manager and Designer. 1985-1986.

   Stevenson Builders and Design. Boca Raton, Florida.

   POSITION: Assistant Designer. 1984-1985.

   Petit Contract Interiors West Palm Beach, Florida.

   POSITIONS: Design Assistant, Librarian and Showroom Manager.

   Fall 1983.

   Roy F. Sklarin Interiors Ft. Lauderdale, Florida. POSITION: Draftsman.

   1983.

   Mark Meyer Associates West Palm Beach, Florida. POSITION: Librarian

   1982.

   Good Wood Frame Shop Ft. Lauderdale, Florida

   POSITION: Curatorial Assistant. 1980-1982.

   Pierre Deux

   Palm Beach, Florida POSITION: Salesman. 1979-1980

   Norton Art Gallery

   West Palm Beach, Florida. POSITION: Intern Curator. 1977-1978.

   James Hunt Barker Gallery Palm Beach, Florida.

   POSITION: Weekend Manager.

   
   

7. In addition, the Board received letters of recommendation in support of Petitioner's application. These letters were from Lewis Kapner, an attorney; Kathleen Shackman, Kapner's administrative assistant; and Stanley Stein, the President of Chalk, one of Petitioner's former employers. In their letters, Kapner and Shackman praised Petitioner for the assistance she provided in "decorating" and "accessorizing" Kapner's new law office. In his letter, Stein wrote:

   
   

   Miss Vivian Hoover Heeke was employed by

   this firm since April 6, 1986 to May 20, 1989 and was responsible for every phase of design required for the successful completion of a design project.

   Vivian is not only qualified as a fine designer but, is also a dedicated and caring person.

   
   

8. Petitioner also had college transcripts sent to the Board.

   
   

9. In the fall of 1989, Susan May was employed as a staff assistant with Board.

   
   

10. May was assigned to assist in the processing of Petitioner's application.

    
    

11. On October 18, 1989, May sent Petitioner a letter acknowledging the Board's receipt of Petitioner's application. May further indicated in her letter that, in order for Petitioner's application to be considered complete,

    Petitioner needed to have at least three completed client reference forms submitted from clients for whom she had performed work "span[ning] a six year period."

    
    

12. May enclosed with her letter blank client reference forms. The forms requested the current or former clients completing them to answer "yes" or "no" to the following three questions (Questions 1-3):

    
    

    Did the Interior Designer successfully consult with you as a client about your project requirements?

    Did the Interior Designer present a solution to your project requirements, such as: floor plans; furniture specifications; fabric and finish selections; lighting?

    Did the Interior Designer complete the project and conduct him/herself in a professional and ethical manner?

    
    

    The clients were then asked to "provide the dates, or time frame [they] enlisted the service of the before mentioned Interior Designer," "a brief but detailed description of what his duties were" and any "additional comments" they wished to make. Finally, they were asked whether they recommended the applicant as "qualified and competent" for licensure and, if not, to explain the basis of their recommendation against licensure.

    
    

13. Along with her October 19, 1989, letter, and the above-described blank client reference forms, May also sent Petitioner blank employment verification forms. These latter forms requested the current or former employers completing them to indicate whether the applicant gained "[s]ubstantial experience," "[a]dequate experience," "[m]inimal experience," "[p]oor [experience]" or "[n]o experience" in the following six areas (Areas 1-6) of interior design during his or her employment:

    
    

    1. Programming, such as: client consultation, project analysis, determination of project requirements, site visits, field measurements, existing furnishings inventory

    2. Design analysis and development, such as: development of design concept, space planning.

    3. Specification of furnishings and materials, such as: selection and/or specification of furniture, furnishings, fabric, finishes, lighting, graphics and equipment.

    4. Consultations with other related professionals, such as: architects, engineers, lighting consultants, art consultants, acoustical consultants, communications consultants, historic preservation consultants.

    5. Preparation of drawings and documents such as: drafting plans, elevations, details; producing specifications and/or purchase orders.

    6. Project management, such as: inspection of work in progress, installation

       supervision, post installation evaluation and client service.

       
       

       The employers were then asked to indicate the dates of the applicant's employment and the position or positions held by the applicant during said employment. Finally, they were asked whether they recommended the applicant as "qualified and competent" for licensure and, if not, to explain the basis of their recommendation against licensure.

       
       

14. On December 14, 1989, the Board received an employment verification form completed by Jerry McFarland, who was the Vice-President of Administration at Petit when Petitioner was employed there. McFarland certified that Petitioner had been employed at Petit as an "Assistant Designer" from September, 1984 to November, 1985. He further indicated that, in his opinion, Petitioner had gained "[a]dequate experience" in the areas of "design analysis and development" (Area 2), "[c]onsultations with other related professionals" (Area 4), and "[p]reparation of drawings and documents" (Area 5) and "[m]inimal experience" in the areas of "[p]rogramming" (Area 1) and "[s]pecification of furnishings and materials (Area 3), as a result of her employment at Petit. He gave no indication on the form as to the experience, if any, Petitioner had attained at Petit in the area of "[p]roject management" (Area 6). McFarland recommended Petitioner for licensure. Appended to McFarland's completed employment verification form was a handwritten letter of recommendation he had prepared, which read as follows:

    
    

    May this letter serve as a recommendation for Vivian Hoover Heeke as an interior designer. She worked in almost all aspects of our business beginning as a librarian and moving up to showroom mgr & assistant designer. She

    was very competent in all tasks we asked of her.

    
    

15. On December 26, 1989, the Board received an employment verification form completed by C. David Williams, a Senior Designer at Stevenson. Williams certified that Petitioner had been employed at Stevenson as an "Assistant Designer." He did not indicate the period of her employment, however. Williams expressed the opinion that Petitioner had gained "[s]ubstantial experience" in Areas 2 and 5, "[a]dequate experience" in Areas 1, 4 and 6 and "[m]inimal experience" in Area 3, as a result of her employment at Stevenson. Williams recommended Petitioner for licensure.

    
    

16. On February 13, 1990, May sent Petitioner the following letter regarding the status of her application:

    
    

    This letter is to inform you of the status of your application. After an initial administrative review of your application, your file appears to be incomplete. Your file will be held in abeyance until you satisfy the requirements pursuant to Chapter 481, Part I, Section 21, Florida Statutes.

    You are required to provide certified proof of 6 years experience. Enclosed is the Client Verification form. Please have 3 client[s] complete this form and mail directly to the Board Office. These client verifications should span at least a 6 year

    period. The Interior Design Committee is looking for both type of experience and length of experience.

    Upon completion of the Client Verification forms, your application will be scheduled for the next Committee review. Please return the enclosed forms to the Board Office as promptly as possible.

    If you do not have the required 6 years experience and wish to become a candidate for examination, please notify the Board Office in writing and your file will be evaluated

    and if eligible your name will be added to the list of candidates for the next exam. The first State Board Exam will be administered

    in early 1990.

    If you have any questions, please feel free to contact this office.

    
    

17. On February 15, 1990, the Board received an employment verification form completed by Steven C. Marks, the Treasurer at Eclectic. Marks certified that Petitioner had been employed at Eclectic as a "Designer" from December, 1988 to January, 1990. Marks expressed the opinion that Petitioner had gained "[s]ubstantial experience" in Areas 1-3, 5 and 6 and "[a]dequate experience" in Area 6, as a result of her employment at Eclectic. Marks recommended Petitioner for licensure.

    
    

18. On February 15, 1990, the Board also received an employment verification form completed by Sharyn Crockett-Peet, the Corporate Curator at Good Wood. Crockett-Peet certified that Petitioner had been employed at Good Wood as a "Designer/Consultant/Appraiser" from March, 1982 to March, 1983. Crockett-Peet expressed the opinion that Petitioner had gained "[s]ubstantial experience" in Areas 1-4 and "[a]dequate experience" in Areas 5 and 6, as a result of her employment at Good Wood. Crockett-Peet recommended Petitioner for licensure.

    
    

19. On February 16, 1990, the Board received an employment verification form completed by Thomas French, the President of Meyer. French certified that Petitioner had been employed at Meyer from February, 1983 to December, 1983. He did not indicate, however, what position or positions Petitioner held. French expressed the opinion that Petitioner had gained "[s]ubstantial experience" in Areas 1 and 3-5 and "[a]dequate experience" in Areas 2 and 6, as a result of her employment at Meyer. French recommended Petitioner for licensure.

    
    

20. On February 22, 1990, the Board received an employment verification form completed by the aforementioned Stanley Stein, the President of Chalk. Stein certified that Petitioner had been employed as an "Interior Designer" at Chalk from April 4, 1986 to May 20, 1988. Stein expressed the opinion that Petitioner had gained "[s]ubstantial experience" in Areas 1-4 and 6 and "[a]dequate experience" in Area 5, as a result of her employment at Chalk. Stein recommended Petitioner for licensure.

    
    

21. In March of 1990, the Board received four client reference forms completed by current and/or former clients of Petitioner. Each of the clients who filled out these forms answered "yes" to Questions 1-3.

22. Two of the forms were completed by the aforementioned Kathleen Shackman. On one of the forms she wrote:

    
    

    8-89 to present. Vivian is very professional. She follows up- she goes out of her way to bring accessories to us (we're a law firm). She calls regularly when new items are available which may be of interest. She was consulted on accessorizing our offices and furnishings.

    
    

    She wrote the following on the other form:

    
    

    12/89 to present. Vivian was consulted regarding furnishing our home. Working with our theme of "Out of Africa" Vivian selected perfect tables & other furniture and she continues to "hunt" for accessories matching our theme.

    
    

    On both forms, Shackman indicated that she recommended Petitioner for licensure.

    
    

23. Another of the forms received by the Board was completed by Shaun and Virginia Kavanagh. They too recommended Petitioner for licensure. In addition, they appended to their completed form the following typewritten comments made by Mr. Kavanagh:

    
    

    Last year [1989] my wife and I moved down to Florida from New York to our new home. One of our neighbors told us about Ms. Heeke and said she would help us decorate our home.

    Well she did the most wonderful job in design for us and what's most important, she worked within our budget.

    Our friends and neighbors cannot believe what a top notch job she did, we are very pleased.

    
    

24. The remaining client reference form received by the Board contained the following remarks made by the client who had completed the form:

    
    

    I asked Vivian Heeke in 1983 to help me design and decorate my home in Palm Beach. She was hired by me and provided full plans for placing of furniture and window treatments. She also placed the furniture according to the plans and the window treatments according to the plans.

    
    

25. On May 4, 1990, May sent a letter to Petitioner advising her of the status of her application. In her letter, May informed Petitioner that Petitioner's file still "appear[ed] to be incomplete" inasmuch as the client reference forms received by the Board "[did] not span a 6 year period or [did] not provide sufficient detail of design experience." Accordingly, May requested that Petitioner "have 3 more clients complete this form and mail [the completed form] directly to the Board office."

26. More than a month passed without the Board receiving any additional completed client reference forms. Accordingly, Petitioner was sent another letter on June 14, 1990. The letter advised Petitioner that her file "remain[ed] incomplete" because the completed client reference forms that had been submitted in support of her application "d[id] not span 6 years" and contained either "borderline" or "no design detail." Petitioner was instructed that this deficiency in her application needed to be cured no later July 31, 1990.

    
    

27. On July 11, 1990, the Board received three additional client reference forms completed by former clients of Petitioner. Each of the clients who filled out these forms answered "yes" to Questions 1-3 and recommended Petitioner for licensure They also described in some detail the design projects that Petitioner had worked on for them. One client detailed a project undertaken in 1982, another client described a 1986 project and the third client discussed work done in 1989.

    
    

28. Following the Board's receipt of these additional completed client reference forms, May again reviewed Petitioner's application file. Thereafter, she submitted the file to the Interior Design Committee of the Board for its review, with the following written "recommendation/comments:"

    
    

    Deny: I do not think she qualifies for 6 yrs. She went to school full time during 83-84, and her 1st few employers say she was a librarian, showroom manager, Assist Designer. Prob. could qualify for exam. In recommending that Petitioner's work experience with her "1st few employers" be discounted, May took into account that neither experience as a librarian, nor experience as a showroom manager, is

    considered design experience by the national testing organization, NCIDQ, or by the American Society of Interior Designers.

    
    

29. The Board's Interior Design Committee (Committee) was comprised of three Board members: Carl Gerken, a licensed architect, and two other Board members who were interior designers by profession. The Committee was responsible for approving or denying applications from those, such as Petitioner, seeking licensure as an interior designer pursuant to the Grandfather Clause.

    
    

30. Gerken was the first Committee member to review Petitioner's application file. For the same reasons expressed by May in her written recommendation of denial, Gerken was of the view that Petitioner's application should be denied and he so indicated on the "Checklist for Interior Design Application" (Checklist) that May had appended to Petitioner's application file. The file, along with the Checklist, was then given to another Committee member, who, following review of these materials, concurred that Petitioner's application should be denied. 2/

    
    

31. On July 25, 1992, Pat Ard, who was then the Executive Director of the Board, prepared a letter advising Petitioner that her "[a]pplication for registration to be licensed as an Interior Designer in the State of Florida must be denied, due to the fact that [her] application d[id] not show sufficient evidence that [she] met the requirements of Florida Statute 481 Part I, Chapter

    Law 88-383, Section 21." This advisement was followed by the following elaboration upon the reasons for the Board's intended action:

    
    

    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 showroom manager, and assistant designer would not qualify as full-scale interior design.

    
    

    Ard ended her letter by informing Petitioner of the availability of the following options:

    
    

    You may request reconsideration by submitting supplemental information to your application. Requests for reconsideration by the Board must be made in writing.

    In addition you may request a hearing. In accordance with Section 120.60, Florida Statutes, you have the right to request a hearing on the denial of your application. The hearing will be conducted pursuant to Section 120.57(1), F.S. and Rule 22I-6.004,

    F.A.C. A request for hearing must be received by the Department of Professional Regulation within 21 days of receipt of the Notice of Denial. If you have any questions please contact Matt Croghan.

    
    

32. Ard's letter was sent to Petitioner by certified mail on July 27, 1990.

    
    

33. Petitioner opted not to "request reconsideration by submitting supplemental information to [her] application." Instead, by letter dated August 14, 1990, Petitioner requested a formal hearing on the Board's preliminary determination to deny her licensure application.

    
    

34. 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. It was docketed as Case No. 90-7549. Hearing Officer Donald Conn was subsequently assigned the case.

    
    

35. At the final hearing held in Case No. 90-7549 on February 6, 1991, Petitioner testified on her own behalf. She also presented the testimony of the aforementioned Jerry McFarland, the former Vice-President of Administration at Petit. In addition, Petitioner offered two exhibits into evidence, both of which were received by the Hearing Officer. Respondent presented no evidence at the hearing.

    
    

36. The evidence adduced at this hearing provided key details concerning Petitioner's work experience that were not contained in the information the

    Board had available to it at the time it preliminarily determined to deny Petitioner's application.

    
    

37. On March 18, 1991, Hearing Officer Conn issued his Recommended Order in Case No. 90-7549. 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 the Grandfather Clause. Petitioner filed exceptions to the Recommended Order.

    
    

38. 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]." 3/ 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."

    
    

39. 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."

    
    

40. 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. On September 6, 1991, Respondent filed a response in opposition to Petitioner's motion for remand.

    
    

41. On September 11, 1991, following a hearing on the matter held by telephone conference call, the undersigned Hearing Officer issued an order denying Petitioner's motion for remand. 4/

    
    

42. On September 27, 1991, the undersigned Hearing Officer issued an Amended Recommended Order based upon the evidentiary record developed at the February 6, 1991, hearing conducted by Hearing Officer Conn.

    
    

43. The undersigned Hearing Officer found that Petitioner had 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; 14 months at Petit; 5/ three months at Sklarin; 6/ and 16 months at Pierre Deux. 7/ Accordingly, the undersigned Hearing Officer recommended that Petitioner's application for licensure be granted.

44. No exceptions to the undersigned's Amended Recommended Order were filed.

    
    

45. On November 19, 1991, the Board issued a final order adopting the Hearing Officer's Amended Recommended Order and determining that Petitioner "is qualified to be licensed as an interior designer without examination" pursuant to the Grandfather Clause.

    
    

46. By letter dated December 13, 1992, the Executive Director of the Board informed Petitioner that her application for licensure had been approved and that she would be issued a license upon remittance of a $200.00 licensure fee.

    
    

    CONCLUSIONS OF LAW

    
    

47. Petitioner is seeking an award of attorney's fees and costs in the instant case in the amount of $20,670.02 pursuant Section 57.111, Florida Statutes, 8/ subsection (4)(a) of which provides as follows:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

48. A party seeking such an award has the initial burden of proving that it is a "small business party," within the meaning of the statute, which had prevailed in an earlier "adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency." Once such proof has been submitted, the burden shifts to the agency to establish by a preponderance of the evidence that its actions in initiating the proceeding "were substantially justified or special circumstances exist which would make the award unjust." See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717-18 (Fla. 1st DCA 1989). An agency meets its burden of demonstrating that its actions were "substantially justified" by showing that the proceeding "had a reasonable basis in law and fact at the time it was initiated." Section 57.111(3)(e), Fla. Stat.; Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

    
    

49. In the instant case, it is undisputed that Petitioner is a "small business party" who was the "prevailing party" in an "administrative proceeding pursuant to chapter 120 initiated by a state agency," to wit: the Board, when it notified Petitioner of its preliminary determination, based upon its review of the materials in Petitioner's application file, to deny Petitioner's application for licensure, without examination, as an interior designer pursuant to the Grandfather Clause. Accordingly, Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, unless the preponderance of the evidence establishes either that the Board's preliminary determination had a reasonable basis in fact and law at the time it was made or that there exist other special circumstances making such an award unjust.

50. In making its preliminary determination to deny Petitioner's application for licensure, the Board had to interpret and apply the following provisions of the Grandfather Clause:

    
    

    (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, . . . .

    
    

51. "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."

    
    

52. "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.

    
    

53. An applicant seeking a license pursuant to the foregoing provisions of the Grandfather clause bears the burden of proving 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).

    
    

54. Based upon its review of the materials in Petitioner's application file, the Board initially determined that Petitioner had not met her burden of showing that she had the "6 years of full-time, full-scale Interior Design experience" it believed the Grandfather Clause required. As its former Executive Director explained in her July 25, 1990, letter to Petitioner, the

    Board came to this preliminary conclusion because the materials in Petitioner's application file reflected that she had been "in school full time in 1983 and 1984," years for which she was claiming interior design experience, and because, in the Board's view, "being a librarian in a design firm, a showroom manager, and assistant designer would not qualify as full-scale interior design."

    
    

55. The Board's determination that the 6 years of experience that Petitioner needed to qualify for licensure without examination had to be "6 years of full-time, full-scale Interior Design experience" was a reasonable and permissible interpretation of the Grandfather Clause, notwithstanding that the Board subsequently decided, after initiating an administrative proceeding and receiving input from Petitioner on the matter, that another interpretation was preferable. 9/ Cf. PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988)("the contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight;" "[t]he courts will not depart from such a construction unless it is clearly unauthorized or erroneous"); Department of Environmental Regulation v. Goldring, 477 So.2d 532,

    534 (Fla. 1985)("[t]he provisions of statutes enacted in the public interest should be given a liberal construction in favor of the public;" "[c]ourts should accord great deference to administrative interpretations of statutes which the administrative agency is required to enforce"); Erfman v. Department of Professional Regulation, 577 So.2d 710, 711 (Fla. 5th DCA 1991)("[u]nless an agency interpretation appears strained or illogical the courts should recognize the superior knowledge and experience of the administrative bodies and boards in the promulgation of rules and application of statutory directions"); Humhosco, Inc. v. Department of Health and Rehabilitative Services, 476 So.2d 258, 261 (Fla. 1st DCA 1985)("[w]hen an agency committed with authority to implement a statute construes the statute in a permissible way, that interpretation must be sustained even though another interpretation may be possible or even, in the view of some, preferable"). Furthermore, it was also reasonable for the Board to conclude that the information contained in Petitioner's application file was insufficient to satisfy Petitioner's burden of demonstrating that she had attained six years of such "full-time, full-scale Interior Design experience," particularly in light of the materials in the file, alluded to in Ard's July 25, 1990, letter, that raised questions concerning whether Petitioner had worked full-time while a student at the Art Institute of Fort Lauderdale and that suggested that Petitioner had held positions, particularly during the earlier periods of her employment history, which appeared to regularly involve the performance of tasks other than the rendering of "interior design services," as defined in Section 481.203(8), Florida Statutes.

    
    

56. Inasmuch as the Board "had a reasonable basis in law and fact" to preliminarily deny Petitioner's application for licensure at the time it took such action, its action was "substantially justified" and Petitioner therefore is not entitled to an award pursuant to Section 57.111, Florida Statutes, for attorney's fees and costs she incurred in administratively challenging such action. See Gentele v. Department of Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

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

ORDERED that Petitioner's application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of June, 1992.

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 12th day of June, 1992.

ENDNOTES

1/ Gerken was one of the members of the Board who participated in the preliminary decision to deny Petitioner's application for licensure. At the final hearing in the instant case, he testified as to why he initially voted in favor of denial of the application. Petitioner objected to the Board's efforts to elicit such testimony. She argued that such testimony was inadmissible because the Board members, including Gerken, who initially considered her application acted in violation of the Sunshine Law. Petitioner's argument, which she reiterated in her Proposed Final Order, is without merit. The evidence adduced at hearing is insufficient to satisfy the Hearing Officer that the Board committed such a Sunshine Law violation. Furthermore, even assuming that, in its initial consideration of Petitioner's application, the Board violated the "public meetings" requirement of the Sunshine Law and thereby rendered its action voidable at Petitioner's option (Killearn Properties, Inc.

1. City of Tallahassee, 366 So.2d 172, 180-81 (Fla. 1st DCA 1979)), -- an argument, incidentally, that Petitioner did not advance in her successful administrative challenge to such action--, the Hearing Officer has found no authority supporting the proposition that a member of a board that has taken formal action in contravention of this requirement should be precluded from testifying in an administrative proceeding, such as the instant one, concerning his motivation in voting in favor of such formal action, where his testimony is otherwise admissible pursuant to Section 120.58(1)(a), Florida Statutes.

   
   

   2/ The record is unclear as to whether Gerken's and the other Committee member's review of Petitioner's application occurred during a taped, public meeting of the Committee or outside of such a setting.

   
   

   3/ 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.

   
   

   4/ 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."

   5/ While the evidence adduced at the February 6, 1991, hearing revealed that 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, the evidence further revealed that 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, the undersigned Hearing Officer determined that Petitioner should receive full credit for her 14 months of full-time employment at Petit.

   
   

   6/ The evidence adduced at the February 6, 1991, hearing revealed that Petitioner occupied a halftime position at Sklarin. Accordingly, under the policy announced by the Board in its remand order, the undersigned Hearing Officer determined that Petitioner should be credited with three months of "interior design experience" for the six months that she rendered "interior design services" at Sklarin.

   
   

   7/ In making this finding, the undersigned Hearing Officer commented as follows:

   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 that 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.

   
   

   8/ Although she is relying upon Section 57.111, Florida Statutes, Petitioner argues that, to the extent that it provides that "[n]o award of attorney's fees and costs for an action initiated by a state agency shall exceed $15,000," it is unconstitutional. The undersigned Hearing Officer, however, is without "power to declare [in whole or in part] a statute void or otherwise unenforceable." Palm Harbor Special Fire Control District v. Kelly, 516 So.2d 249, 250 (Fla.

   1987). Accordingly, even if he determined that Petitioner was entitled to an

   award of attorney's fees and costs and that the $20,670.02 in fees and costs claimed by Petitioner were reasonably incurred, the undersigned Hearing Officer would nonetheless be bound by the $15,000 "cap" imposed by the statute, regardless of his views concerning the constitutional issue raised by Petitioner.

   
   

   9/ The "APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind." Couch Construction Company, Inc. v. Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978). In the instant case, Petitioner availed herself of such opportunity and persuaded the Board to alter its previously announced position on the experience requirements of the Grandfather Clause.

   
   

   APPENDIX TO FINAL ORDER IN CASE NO. 91-8263F

   
   

   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. First sentence: Rejected because it is more in the nature of a conclusion of law than a finding of fact; Second sentence: Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

   2. To the extent that this proposed finding asserts that Ard's letter was received by Petitioner on July 25, 1990, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   3. The formal proceeding in Case No. 90-7549 was intended "to formulate final agency action, not to review action taken earlier and preliminarily." Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 786-87 (Fla. 1st DCA 1981). To the extent that this proposed finding suggests otherwise, it has been rejected. In all other respects, it has been accepted and incorporated in substance.

   4. Rejected as a finding of fact, but incorporated in substance in the Preliminary Statement of this Recommended Order.

   5. Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Rejected because they constitute a summary of testimony adduced at the final hearing held in this cause rather than findings of fact based upon such testimony.

   6. First sentence: Rejected as a finding of fact, but incorporated in substance in the Preliminary Statement of this Recommended Order; Third sentence: Rejected because it constitutes a summary of testimony adduced at the final hearing held in this cause rather than a finding of fact based upon such testimony; Fourth sentence: To the extent that this proposed finding asserts that the materials requested in May's May 4, 1990, letter to Petitioner were received by the Board before Petitioner was sent a follow-up letter, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance; Fifth and sixth sentences: Accepted and incorporated in substance; Seventh sentence: To the extent that this proposed finding asserts that the materials requested in May's May 4, 1990, letter to Petitioner were received before Petitioner was sent a follow-up letter, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

   7. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is a description of the Board's counsel's reaction to testimony adduced at the final hearing held in this cause rather than a finding of fact based upon such testimony; Remaining sentences: Rejected because they constitute a summary of testimony adduced at the final hearing held in this cause rather than findings of fact based upon such testimony.

   8. First sentence: Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected because it is a description of the Board's counsel's reaction to testimony adduced at the final hearing held in this cause rather than a finding of fact based upon such testimony; Last sentence: Rejected because it is not supported by persuasive competent substantial evidence; Remaining sentences: Rejected because they constitute a summary of testimony adduced at the final hearing held in this cause rather than findings of fact based upon such testimony.

   9. Rejected as a finding of fact, but incorporated in substance in the Preliminary Statement of this Recommended Order.

Respondent's Proposed Findings of Fact

1-3. Accepted and incorporated in substance.

4. To the extent that this proposed finding asserts that completed client reference forms were received by the Board in February of 1990, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

5-12. Accepted and incorporated in substance.

1. To the extent that this proposed finding asserts that Petitioner stated on her completed application form that she had been an artistic consultant and design salesperson while employed at Meyer, it has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

2. Rejected because it is more in the nature of a conclusion of law than a finding of fact inasmuch as it appears to purport to categorize the various tasks listed under "experience record" on Petitioner's completed application form as either "interior design services," as defined in Section 481.203(8), Florida Statutes, or "interior decorating services," as described in Section 481.229(6), Florida Statutes.

15-18. Accepted and incorporated in substance.

1. To the extent that this proposed finding asserts that Ard's letter was sent to Petitioner on July 25, 1990, not July 27, 1990, it has been rejected because it is not supported by competent substantial evidence. Otherwise, it has been accepted and incorporated in substance.

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

21-24. Accepted and incorporated in substance.

25. Rejected as a finding of fact, but incorporated in substance in the Preliminary Statement of this Recommended Order.

26-28. Rejected because they constitute a summary of testimony adduced at the final hearing held in this cause rather than findings of fact based upon such testimony.

29. Rejected because it is more in the nature of a conclusion of law than a finding of fact.

COPIES FURNISHED:

Kathryn M. Beamer, Esquire

One Clearlake Centre, 12th Floor

250 Australian Avenue South 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 JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-008263F

Orders for Case No: 91-008263F