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Submission of plan to client by out-of-stater deemed unlicensed practice

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The Supreme Court of Oregon, in a June 2 decision, upheld a sanction for unlicensed practice imposed by the state's architectural board on two men who submitted master plans for projects in Oregon despite not having an architect's license in the state.

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(Twist Architecture & Design, Inc. v. Oregon Board of Architect Examiners)

Neither Kirk Callison or David Hansen, principals of Twist Architecture & Design, the firm at issue in the case, were licensed to practice in Oregon when, in 2008, Twist agreed to design a master plan for three shopping centers in the state and later submitted those plans—stamped with the firm’s logo—to the client.

Additionally, Twist maintained a website that, among its biographical information, listed Callison and Hansen as “Licensed in the State of Oregon (pending)” and listed one of the proposed shopping centers as experience. At the time of the site’s creation, Callison, a Washington State licensee, had intended to apply for licensure in Oregon but had not done so. Hansen was not licensed to practice in any jurisdiction.

The board, learning of the plans, filed a complaint against Twist and its two principals in May of 2011, seeking penalties for unlicensed practice. After a hearing, the board found that the purported architects had, in fact, engaged in unlicensed practice and improper advertising. The board held that the creation of master architectural plans constituted the practice of the profession and that Twist’s website improperly claimed the two were architects.

Callison and Hansen appealed, arguing that the plans they submitted were never intended to be used for the actual preparation of construction and, thus, could not be considered the practice of architecture. An appellate court agreed with this argument and threw out most of the board’s sanctions. The board appealed this decision and the case went up to Oregon’s Supreme Court.

In their appellate arguments, Callison and Hansen argued that the Oregon statute on the unlicensed practice of architecture only prohibits “planning” and “designing” if those plans or designs were done in contemplation of construction. The plans they created for the Oregon project, they claimed, were not sufficiently detailed that they could have been used for actual construction.

The justices of the court did not agree. While the Oregon statute defining the practice does include the creation of plans intended for construction, the legislature did not limit the practice to only the creation of those final plans, wrote Justice Martha Walters, noting that the definition also included types of preliminary planning.

“If respondents were correct that the practice of architecture requires the preparation of drawings that could be used in actual construction, it seems that the legislature would have limited the activities it described to the preparation of such drawings, rather than including activities preliminary to their preparation.”

Further, the justice continued, among the legislature’s motives for prohibiting the unlicensed practice of architecture was the elimination of “unnecessary loss and waste” and “it is reasonable to conclude that the legislature contemplated that economic loss and waste could occur if individuals untrained in master planning undertook to perform those tasks for developers for remuneration but without the requisite skills, and therefore required that those who engage in such planning must be licensed as architects.”

The creation of master plans constituted the practice of architecture and the preparation of such plans by Callison and Hansen was unlicensed practice.

The Court also upheld the board’s judgment that Callison and Hansen improperly represented themselves as practicing architects on their website. Although the site’s text contained the qualifier that licensure of the pair was only “pending,” Justice Walters wrote that “a representation can violate the statute even if it does not address licensure status at all; it need only indicate, or tend to indicate, that the person is practicing architecture in Oregon.”

“. . . When the principals have not submitted an application for registration in Oregon, they are not qualified to practice in Oregon and, therefore, when they make claims of pending licensure in conjunction with advertising architectural projects that they have undertaken in Oregon, they violate [Oregon law].”