STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLA KAY SANFORD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0949

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on April 9, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Marla Kay Sanford

Post Office Box 3323 Lantana, Florida 33465-3323

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

Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner should be licensed without examination as an interior designer on the ground that Petitioner had six years experience as an interior designer prior to January 1, 1990, in accordance with applicable provisions of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida.

PRELIMINARY STATEMENT

The Board of Architecture and Interior Design (the "Board") advised Petitioner, by letter dated August 21, 1992, that her application for licensure without examination as an interior designer was denied on the grounds that Petitioner had not sufficiently documented the requisite experience necessary for licensure. Petitioner requested a formal hearing by letter dated September 14, 1991.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer and assigned to the undersigned on February 18,

1992. A formal hearing was scheduled for April 19, 1992, pursuant to a Notice of Hearing issued on March 5, 1992.

At the formal hearing, Petitioner testified in her own behalf and presented the testimony of Julie Brown, a former supervisor, William Lochten, and Gasparo Spina, former clients. Mr. Lochten's testimony was determined to be irrelevant to the extent it addressed Petitioner's experience after January 1, 1990.

Petitioner submitted no exhibits for admission in evidence. Respondent presented no witnesses and submitted one exhibit for admission in evidence. Respondent's exhibit was admitted in evidence without objection.

At the conclusion of the formal hearing, the parties agreed upon a schedule for filing proposed findings of fact and conclusions of law ("PROs"). The schedule included time for late-filed exhibits to be filed by Petitioner pursuant to the agreement of the parties at the formal hearing. A transcript of the formal hearing was requested by Respondent and filed with the undersigned on May 1, 1992.

Proposed findings of fact and conclusions of law were due ten days after the later of the filing of the transcript or the filing of any late filed exhibits. Petitioner did not file proposed findings of fact and conclusions of law. Respondent timely filed its proposed findings of fact and conclusions of law on June 9, 1992. Respondent's proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner timely applied to the Board of Architecture and Interior Design (the "Board") for licensure without examination as an interior designer pursuant to Chapter 88-383, Laws of Florida. Petitioner's application was dated December 29, 1989, and was received by the Board on January 4, 1990.

   
   

2. The Board advised Petitioner of its intention to deny her application in a letter dated October 22, 1990. The letter stated in relevant part:

   
   

   A review of your application by the Interior Design Committee shows that you did not sufficiently document that you have met the definition of Interior Design for a six year period. Employers prior to 1986 did not evaluate your design abilities, nor did they provide a job description. Also client forms previously submitted do not contain a sufficient description of Interior Design

   services. In order to receive reconsideration you must submit three additional detailed client reference forms that span six years of experience. These letter must contain both the time frame and a detailed description of Interior Designer, not an Interior Decorator. The Committee has also requested that you send in samples of your interior design plans and drawings.

   
   

3. Petitioner graduated from Western Michigan University in 1983 with a Bachelor of Science degree in Interior Design. The curriculum required the last three years of the four year educational program to concentrate on interior

   design. Petitioner had three years of drafting, studied space and electrical utilization, and the application of building codes to interior design.

   Petitioner completed courses in architecture, art design, art principles, textitles, design principles, and floor plans. Michigan did not then nor does it now license interior designers.

   
   

4. While attending college, Petitioner began working 15 to 20 hours a week in April, 1982, as an assistant interior designer for Xenia Eliadeas at Interiors by Xenia in Gross Pointe, Michigan ("Xenia"). Petitioner's primary responsibility was to draw floor plans for use in interior design projects. Ms. Eliadeas graduated from Michigan State University with a degree in interior design and had 20 years of experience in interior design.

   
   

5. Petitioner has been identified by the title "interior designer" and has six years experience performing interior design services prior to January 1, 1990, in accordance with applicable provisions of Chapter 88-383, Laws of Florida, as amended by Chapter 89-19, Laws of Florida. Petitioner worked full time as an interior designer from July, 1983, through December, 1989, at Xenias and Worrells Interiors, 201 South Ocean Boulevard, Manalpian, Florida ("Worrells").

   
   

6. In July, 1983, Petitioner began working full time with Xenia as an interior designer. Petitioner worked six days a week from 8:00 a.m. to 5:00

   p.m. For the first six months, Petitioner's duties primarily involved commercial and residential floor plan drawings including design drawings for restaurants. Petitioner was responsible for Xenia's clients whenever the owner was not present.

   
   

7. The largest single project for which Petitioner had primary responsibility while at Xenias involved the renovation of a warehouse. The renovation required walls to be removed, bathrooms to be installed, and for the warehouse to be renovated into an office and factory. Petitioner had 100 percent "hands-on" responsibility for the project. The renovation took two years to complete and was finished sometime in July, 1985.

   
   

8. From July, 1985, until January, 1986, 90 percent of Petitioner's duties involved interior design for residential projects including both retainer contracts and "walk-ins." Petitioner moved walls, re-designed space planning for traffic patterns in existing homes, and designed jacuzzis and work-out rooms which had to be installed over plumbing and had to have ventilation designed. Some of her space planning required Petitioner to design proper clearances for wheel chairs. Petitioner performed interior design services in all of the jobs she performed on a full time basis from July, 1983, through January, 1986.

   
   

9. The proportion of design services to decorating services performed by Petitioner at Xenias varied with each job, but the portion of design services was approximately 60 percent of her duties. However, Petitioner prepared drawings in 100 percent of her jobs.

   
   

10. Petitioner left Xenias in January, 1986, and moved to Florida. On April 5, 1986, Petitioner began working full time as an interior designer for Worrells. Since joining Worrells, Petitioner has spent 100 percent of her time performing the duties of an interior designer.

    
    

11. Worrells has a drafting room with drafting equipment and tables located behind the studio. Petitioner prepared design plans in the drafting room on a daily basis. She has averaged approximately 25 jobs a year. Each job

    requires anywhere from three months to a year to complete. She has developed a substantial referral business which comprises approximately 50 percent of her clientele.

    
    

12. Petitioner has performed a variety of interior design functions at Worrells involving new construction, renovations, and both commercial and residential projects. Petitioner has performed a great deal of space utilization involving the removal of walls, making adjustments in space utilization, and recreating rooms. Petitioner has presented original ideas and concepts, worked from floor plans, reflected ceiling plans, and electrical plans. She has performed functions involving off-space planning and design and prepared design plans. She has consulted with professionals and with a full complement of general contractors and subcontractors, including electrical contractors and plumbers.

    
    

13. Petitioner typically works on six to eight jobs at a time. She always performs in a professional and competent manner and has never had an unsatisfied client or an unfinished job.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

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

    
    

16. 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 six (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,

       . . .

       
       

17. Since this is a case in which Petitioner is seeking to establish her qualifications for licensure without examination, the Petitioner has the burden of establishing her qualifications under section 21(1)(b) by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d (Fla. 1st DCA 1977). Specifically, an applicant who seeks to establish that the initial review of her application was incorrect, must show that the agency's initial decision was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel, Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Professional Regulation, 365 So.2d 759 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

    
    

18. "Interior design services," as defined in Section 481.201(8), Florida Statutes, are "design services which do not necessarily require performance by an architect, including consultations, studies, drawings, and specifications in connections 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."

    
    

19. "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.

    
    

20. In this case, Petitioner showed by a preponderance of the evidence that she has satisfied the requirements for title and experience to be licensed without examination. Petitioner's work at Xenias and Worrells from 1983 through 1989 involved the performance of interior design services on a full time basis.

Petitioner demonstrated that she has professionally and competently performed services for clients in each of the areas of experience outlined in the definition of interior design.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Architecture and Interior Design enter a

Final Order granting Petitioner 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 ORDERED in Tallahassee, Leon County, Florida, this 10th day of November 1992.

DANIEL MANRY

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 November 1992.

APPENDIX

Petitioner did not submit proposed findings of fact.

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

8-10 Rejected for the reasons stated in finding 4-8

1. Accepted in finding 6

2. Rejected for the reasons stated in finding 6

3. Rejected in finding 10

4. Accepted in finding 10

COPIES FURNISHED:

Marla Kay Sanford Post Office Box 3323

Lantana, Florida 33465-3323

Arthur R. Wiedinger, Jr., Esquire Assistant Attorney General Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Angel Gonzalez, Executive Director Department of Professional Regulation, Board of Architecture & Interior Design 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street 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: 92-000949

Orders for Case No: 92-000949