STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF ARCHITECTURE AND )

INTERIOR DESIGN, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2860

)

THOMAS M. GUILFORD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 30, 1996, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mary Ellen Clark, Esquire

Donna Bass, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Patrick J. Phelan, Jr., Esquire

Skelding, Labasky, Corry, Eastman, Houser & Jolly, P.A.

Post Office Box 669 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether or not Respondent committed violations of Sections 481.2251(1)(d) and 481.2251(1)(n) F.S. [1991], as alleged in the administrative complaint, and if so, what penalties should be imposed.

PRELIMINARY STATEMENT

By an administrative complaint filed November 12, 1993, Petitioner charged Respondent, a registered interior designer not licensed to practice architecture, with violation of Section 455.2251(1)(d) and (n) F.S. [1991]. In the administrative complaint, Petitioner alleged that Respondent's letterhead and invoice statements containing the phrase "architectural and interior design" constituted an advertisement to practice architecture in violation of Section 481.2251(1)(d) F.S., which states that false, deceptive or misleading advertising shall constitute grounds for which disciplinary action may be taken.

The administrative complaint further alleged that the stationery constituted an offer to render architectural services in violation of Section 481.2251(1)(n) F.S., which states that rendering or offering to render architectural services shall constitute grounds for which disciplinary action may be taken.

At formal hearing, Petitioner presented the oral testimony of Jerry Hicks who was accepted as an expert in architecture and had two exhibits admitted in evidence.

Respondent, Thomas Maxwell Guilford, was accepted as an expert in interior design and testified on his own behalf. Respondent had seven exhibits admitted in evidence.

A transcript was filed in due course. Both parties timely filed posthearing proposals, the proposed findings of fact of which have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. Thomas Maxwell Guilford, Respondent, is licensed by the Florida Board of Architecture and Interior Design as a registered interior designer, License No. ID 0002093.

   
   

2. Respondent was first licensed as a registered interior designer by the Board of Architecture and Interior Design in 1990, when the interior designer licensure statute was enacted. Mr. Guilford has practiced as an interior designer for approximately 20 years.

   
   

3. Prior to becoming licensed, Respondent practiced under the trade name, "Thomas Maxwell Guilford Architectural and Interior Design." Respondent has utilized this term and trade name to describe his professional services for approximately 20 years.

   
   

4. Respondent disclosed to the Board and Department of Professional Regulation his use of the foregoing term to describe his occupation when he applied for licensure in January, 1990. Mr. Guilford's professional identification was set forth on his City of Tallahassee Occupational Licence, a copy of which was submitted to the Board as part of his licensure application.

   
   

5. During the licensure application process, Respondent also submitted correspondence to the Board on letterhead paper bearing the trade name, "Thomas Maxwell Guilford Architectural and Interior Design."

   
   

6. At no time prior to issuing Respondent's interior designer license or prior to the administrative complaint herein did the Board indicate to Respondent that his use of the trade name, "Thomas Maxwell Guilford Architectural and Interior Design" violated any licensing statutes, including but not limited to Sections 481.2251(1)(d) and (n) F.S., which he is now charged with violating. Had the licensing authorities advised Respondent of any disapproval of his use of the term "architectural and interior design" prior to licensure, he would have stopped using the designation.

   
   

7. Not aware of any objection to his long-established identification and letterhead, Respondent continued, subsequent to becoming licensed, to practice interior design under the trade name he had consistently utilized for fourteen or more years before licensure.

8. Upon licensure, Respondent also added to his letterhead the phrase, "Registered with the Florida Board of Architecture and Interior Design, ID 0002093" to specifically indicate his licensure status.

   
   

9. The Board requires licensees to display their license numbers on all written materials.

   
   

10. In 1992, Respondent submitted two statements to a client, one for "billable hours for design consultation and installation" and the other for "landscaping front and rear yard." Each statement appeared on stationery bearing the term, "Thomas Maxwell Guilford Architectural and Interior Design" as described above. The client filed a complaint with the Department of Business and Professional Regulation over a billing dispute, which was ultimately resolved without disciplinary activity. However, Petitioner charged Respondent with violating Section 481.2251(1)(d) F.S., by engaging in false, deceptive or misleading advertising, and with violating Section 481.2251(1)(n) F.S., by rendering or offering to render architectural services without a license, solely upon the wording of his stationery.

    
    

11. Respondent never intentionally or knowingly represented himself to the public to be a licensed architect.

    
    

12. Respondent has never previously been disciplined by the Board of Architecture and Interior Design. He is not charged in this administrative complaint with failing to make the proper disclosures required by Section 481.2131(1) F.S., as to the extent of interior designers' capabilities on any drawing, rendering, or elevation. At no time since the filing of the administrative complaint herein on November 12, 1993, has the Board or the Department issued an order directing Respondent to cease and desist his use of the term, "architectural and interior design" in his stationery or billing statements.

    
    

13. Jerry Hicks, an expert licensed architect, testified that in his opinion, the use of the term, "architectural design" on Respondent's stationery was misleading, misrepresentative, and inappropriate because, "it uses the word 'architectural' to enhance the interior designer's position" and because Mr. Hicks thought lay persons would think architecture was being practiced by a licensed architect.

    
    

14. Basically, Mr. Hicks asserted the prosecutorial position that because the adjective "architectural" springs from the noun, or word-root, "architecture," it must be misleading if utilized on an interior designer's stationery. However, he conceded that the adjective is not misleading anywhere else. (See Findings of Fact 24-26).

    
    

15. As an architect, Mr. Hicks had no difficulty looking at the Respondent's stationery and recognizing that only interior design services were being offered and that the Respondent's license number was clearly an ID (interior designer) license number and not an AR (architect's) license number.

    
    

16. No layperson testified to being misled or confused by the Respondent's stationery.

    
    

17. The statement concerning Respondent's licensure status and licensure number appearing on his letterhead is truthful in every respect. Any client or consumer, familiar or unfamiliar with the ID versus AR licensure designations,

    can verify the extent of Respondent's licensure status by inquiring of the Board of Architecture and Interior Design.

    
    

18. There are no facts or circumstances in this record which demonstrate that Respondent ever actually rendered or offered to render any services which would require performance exclusively by a licensed architect.

    
    

19. See the statutory definitions of the two professions at Sections 481.203(6) F.S. for architecture and 481.203(8) F.S. for interior design. These definitions are adopted and incorporated as a finding of fact.

    
    

20. It is undisputed that the services commonly rendered by architects and interior designers overlap significantly. Mr. Hicks described the process of "architecture" as a business which involves five basic services or phases: a conceptual schematic phase, a design development phase, a construction design phase, bidding and negotiation phase, and a construction and administration phase. According to Mr. Hicks, licensed interior designers may properly engage in each of the activities comprising the five phases, so long as they do not perform services involving the specific design and construction of structural or mechanical components, which would require additional professional licensure such as an architect or engineer.

    
    

21. Interior designers commonly perform services involving both the interior and exterior design and construction phases of buildings, so long as such work is limited to the non-structural elements of the building. The role of the interior designer in the design and construction phase is limited primarily to dealing with "esthetic appliques to building structures."

    
    

22. Such activities may include aspects of both interior and exterior design, commonly taking the form of line drawings showing what the finished product would look like and known as "interior elevations" and "exterior elevations."

    
    

23. A licensed interior designer may sketch both conceptual, schematic and detailed drawings of an exterior facade or elevation or of an interior elevation for a client, so long as the design documents do not involve specific structural components. The term "architectural design" can properly be used to describe such drawings rendered by an interior designer.

    
    

24. As a licensed interior designer, Respondent is permitted, and often does, consult with clients concerning every phase of the design and construction process for new construction, as well as additions or renovations. In the normal course of his business, he is required to develop conceptual schematic designs, prepare detailed, non-structural design documents, assist in the bidding and negotiation process and assist in the construction and administration phases of a project. These activities are essentially identical to those of an architect, with the exception that the limitations of Respondent's licensure preclude him from participation in the design and construction of the structural or mechanical components of a building project, such as electric wiring or plumbing connections. However, interior designers may appropriately select plumbing fixtures and locate electric outlets and illustrate these elements on design documents for their customers.

    
    

25. The preparation of conceptual schematic designs and later specific design documents were characterized by Respondent, who was accepted as an expert in interior design, as "architectural design." The agency's expert witness, an architect, Jerry Hicks, did not disagree with such a usage.

26. According to Mr. Hicks, it would not even be inappropriate for an interior design firm or an individual interior designer to prepare schematics and elevations of interiors and exteriors and call the schematics "architectural designs". Interior designers also may appropriately use the reference "architectural design" to describe their work to customers or architects on specific projects. Mr. Hicks saw nothing misleading in the use of the word "architectural" to describe displays of products as "architectural lighting" or "architectural mouldings" in building supply stores, or in the title of magazines.

    
    

27. Building supply stores typically sell self-described "architectural" products, such as architectural hardware, architectural shingles, and architectural mouldings.

    
    

28. The term, "architectural design," also appears in the title of the publication "Architectural Digest", a widely-recognized publication used by consumers, designers and architects, which bills itself as "the international magazine of fine interior design."

    
    

29. The term also appears in textbooks, which are typically utilized by both architects and designers. The term is used in book titles appearing on a recommended reading list submitted by the Board of Architecture and Interior Design to registered interior designers, including Respondent. The reading list includes titles, such as "Interior Design and Introduction to Architectural Interiors", "Architectural Drawing", "Architectural Lighting Design", and "Architectural Detailing."

    
    

30. The evidence as a whole shows that in common usage, the term "architectural," when used as an adjective, is essentially generic in nature.

    
    

31. The evidence as a whole shows that the term, "architectural design" is a term widely utilized throughout the industry, that there is a common understanding as to what the term entails, and that it commonly includes interior designing without professional licensure as an architect.

    
    

32. If anything, Respondent's stationery reading, "Architectural and Interior Design" (emphasis supplied) is even more accurate and informative of what he is licensed to do than is the generic term, "architectural design."

    
    

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1) F.S.

    
    

34. The Petitioner agency bears the duty to go forward to prove by clear and convincing evidence the violations alleged in the administrative complaint. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

35. Violations not charged in the instant administrative complaint may not be considered here.

    
    

36. While some architects view use of the term, "architectural design" by interior designers as a bad thing because they perceive that it enhances the interior designer's competitive economic position, economic concerns between the two professions is not a basis for disciplinary action. The Board is charged with protecting the health, finances, and safety of the public and not with

    protecting the economic balance between the two professions or the position of one portion of its constituency over that of another.

    
    

37. There has been no showing that anyone, layperson or otherwise, has been misled or even could be misled by the terms, "architectural design" or "architectural and interior design," as utilized by the Respondent. There is only speculation on this score by an architect who, himself, was not misled.

    
    

38. The evidence does not support the allegation that Respondent, through the use of the statement "architectural and interior design" on his letterhead advertised that he was practicing architecture in the State of Florida. Similarly, the evidence fails to demonstrate that Respondent rendered or offered to render architectural services without a license. The statement does not otherwise constitute a false, deceptive or misleading advertisement. While there may be a dispute between architects and interior designers as to the appropriateness of an interior designer's use of the term, "architectural design," this Respondent's letterhead clearly and truthfully identifies his licensure status as an interior designer registered with the Board of Architecture and Interior Design, something he is required to do commensurate with his licensure.

    
    

39. Respondent's services are properly characterized as interior design services and architectural design services. The services are not the practice of architecture. His use of the term, "architectural design" on his letterhead concurrent with the clarifying language indicating his licensure status, is consistent with the use of this term in the design industry.

    
    

40. Because this case has been resolved upon other issues, it is not necessary to reach the constitutional "free speech" issues raised by the Respondent.

RECOMMENDATION

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 dismissing the administrative complaint herein as unproven.

DONE AND ENTERED this 31st day of May, 1996, at Tallahassee, Florida.

ELLA JANE P. DAVIS, 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 31st day of May, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-2860

The following constitute specific rulings, pursuant to S120.59(2) F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1-6, 9 Accepted, except that preliminary, unnecessary, subordinate and/or cumulative material has not been adopted.

7-8, 11 Rejected, as a misleading characterization of isolated testimony.

10 Rejected because not supported by a citation to the transcript or evidence. Moreover, it is not supported by the record as a whole. No charges on this issue are contained in this case. See Finding of Fact number 12 and Conclusion of Law number 35.

12 Rejected as a conclusion of law and as not supported by the evidence. 13-15 Accepted that these statements were made but rejected that they

fully describe Mr. Hicks' testimony which is detailed more thoroughly in the facts as found. Rejected further as partial conclusions of law.

Respondent's PFOF:

1-29 Accepted, except that legal argument, conclusions of law, and unnecessary, subordinate and/or cumulative material has not been adopted.

COPIES FURNISHED:

Mary Ellen Clark, Esquire Donna Bass, Esquire Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Patrick J. Phelan, Jr., Esquire Skelding, Labasky, Corry, Eastman,

Houser & Jolly, P.A. Post Office Box 669 Tallahassee, FL 32302

Angel Gonzalez, Executive Director

Board of Architecture and Interior Design Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, FL 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

BOARD OF ARCHITECTURE AND INTERIOR DESIGN

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 92-11007

DOAH CASE NO. 95-2860

THOMAS M. GUILFORD,

Respondent.

/

FINAL ORDER

This matter came on to be heard before the Board of Architecture and Interior Design for final action pursuant to section 120.57(1)(b)10, Florida Statutes, at a public meeting on August 9, 1996, in Orlando, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein. The Petitioner had filed exceptions to findings of fact numbers 18 and 23, to conclusions of law numbers 36, 38, and 39 and had asked for a penalty of a reprimand. The Respondent had filed a Response to the exceptions. At the hearing, the Petitioner orally withdrew her exception to finding of fact number

18 and the requested penalty.

FINDINGS OF FACT

The Board, having reviewed the complete record, rejects the following findings of fact due to a lack of competent substantial evidence and, in fact, due to a lack of any record evidence to support findings 7, the third sentence of number 10, and number 20. The following findings of fact the Board rejected in that they are conclusions of law which are rejected for the reasons stated below: number 17, the second sentence of number 23, the third sentence of number 24, number 18, Number 30, Number 31, and Number 32. The remainder of the findings of fact are adopted by and incorporated in this final order.

The Board accepted the exception filed by the Petitioner regarding finding of fact Number 23.

CONCLUSIONS OF LAW

The Board rejects the conclusions of law because they are based on an erroneous interpretation of the relevant provisions of Chapter 481, Florida Statutes. Dyer v. Department of Insurance and Treasurer 585 So.2d 1009 (Fla. 1st DCA 1991); University Community Hospital v. DHRS, 610 So.2d 1342 (Fla. 1st DCA 1992).

The Respondent, a licensed interior designer, was charged with violating section 481.2251(1)(d), Florida Statutes, that is, false, deceptive, or misleading advertising, and section 481 .2251 (1)(n), Florida Statutes, that is, rendering or offering to render architectural services. These violations were based on the use of the term "architectural design" on Respondent's letterhead and statements. Section 481.2131(1), Florida Statutes, authorizes an interior designer to perform "interior design" as defined in section 481.203, Florida Statutes, and requires, inter alia, that interior design documents contain a statement that the document is not an "architectural design." Section 481.203(8) defines "interior design" but specifically excludes the "design of architectural work" as part of the practice. Section 481.223(1)(c), Florida Statutes, prohibits the use of the name or title "architect" or "registered architect" or "words to that effect" when a person is not a holder of a valid license as an architect. These statutory provisions clearly indicate that the use of the term "architectural design" by an interior designer is inherently misleading.

Further, the word "architectural" is the adjective form of the word "architecture" which is defined in the dictionary to mean "1. The art and science of designing and erecting buildings." The American Heritage Dictionary, 2nd College Edition. Thus, based on the generally accepted meaning of the term "architectural design," the use of that term by an interior designer is inherently misleading. There is no need to utilize a "reasonable person standard" in light of these two conclusions. See, Snell v. Engineered Systems & Designs. Inc., 669 A. 2d 13, 19-20 (1995).

There is no need for record evidence of actual deception in order to conclude that the use of the term "architectural design" by an interior designer is inherently misleading. Castrol Inc. v. Pennzoil Co.. 980 F. 2d 939, 943 (3rd Cir. 1993). The previously cited commonly accepted meaning of architectural as well the the prohibitions set forth in sections 481.213(1), 481.203(8), and 481.223(1)(c), Florida Statutes, establish that the use by the Respondent of that term is inherently likely to deceive the public and that it is literally false. Joe Conte Toyota v. La. Motor Veh. Com'n, 24 F. 3d 754 (5th Cir. 1994); Castrol Inc. v. Pennzoil Co., supra.

Based on the previously cited statutory provisions and dictionary definition, the use of the term "architectural design" inherently indicates that the person using the term is offering to render architectural services.

CONCLUSION

The findings of fact which have been adopted and the foregoing conclusions of law establish that the Respondent has violated sections 481.2251(1)(d) and 481.2251(1)(n), Florida Statutes. Humana v. DHRS, 492 So.2d 393 (Fla. 4th DCA 1986); Hernicz v. State, Department of Professional Regulation, 390 So.2d 194 (Fla. 1st DCA 1980). Based on the Board's disciplinary guideline in rule 61G1- 12.004(2)(1), Florida Administrative Code, the Board, hereby, issues a letter of

guidance stating that the Respondent shall cease using the term "architectural design" on his letterhead and statements.

IT IS THEREFORE ORDERED AND ADJUDGED:

The Respondent has committed the violations as alleged and shall cease using the term "architectural design" on his letterhead and statements.

Pursuant to section 120.68, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the department and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

This Final Order shall become effective upon filing with the clerk. DONE AND ORDERED this 27th day of September, 1996.

Margarita A. Khuly Chairperson

Board of Architect and Interior Design

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by United States Mail to Thomas M. Guilford, c/o Patrick J. Phelan, Jr., 318 North Monroe Street, Tallahassee, Florida 32301, and Claire D. Dryfuss, Esquire, Ervin Building, Suite 308, 2020 Capital Circle S.E., Tallahassee, Florida 32301 and by Hand Delivery to Mary Ellen Clark, Senior Attorney, Department of Business and Professional Regulation, 1940 N. Monroe Street, Suite 60, Northwood Centre, Tallahassee, Florida 32399-0792 on this 30th day of September, 1996.

Docket for Case No: 95-002860

Orders for Case No: 95-002860