Pennsylvania Legislation 2009 Proposal HB 1521 State Board of by CraigGreenhill

VIEWS: 11 PAGES: 6

									                          Pennsylvania Legislation
                                2009 Proposal
                 HB 1521 State Board of Interior Designers Act

The Interior Design Legislative Coalition of Pennsylvania (“IDLCPA”), an interior
design organization formed in the late 1980s to push for interior design legislation
in the State of Pennsylvania, has caused the introduction of a practice act by the
House which has been sent to the House Professional Licensure Committee for
consideration and recommendation. Although the bill contains some new
language and “exemptions”, the intent remains the same: to limit the right of our
members to perform design services in the Commonwealth of Pennsylvania. As
we did previously, the National Kitchen & Bath Association will oppose this
restrictive and harmful bill that will impact our members’ ability to work and
remain in business. We’ve prepared this brief overview of legislative issues in
general and the proposed Pennsylvania State Board of Interior Designers Act in
particular.

Types of Interior Design Legislation

Generally, two types of interior design legislation have been advocated by interior
design coalitions (generally funded and supported by the American Society of
Interior Designers) seeking to regulate the profession of interior design. The first,
known as a Title Act, regulates the use of a title such as “Certified Interior
Designer”, “Registered Interior Designer” or, in some cases, even the term
“Interior Designer” itself (although as a result of a number of lawsuits and
Attorneys General opinions, all states have now either removed or are in the
process of removing that restriction from their laws since it is a violation of
freedom of speech). Although a title act does not prevent anyone from offering
interior design services, only those who have meet the qualifications mandated
by the law and been duly licensed by the State can use the regulated term.

A Practice Act, on the other hand, is much more restrictive and prohibits
unlicensed persons from performing any services that are defined as “interior
design services” in the bill. Bills differ in what the definition of interior design is,
but generally it is quite broad and covers such things as the design of interior
space, plans and specifications, the aesthetics of a room, contracts for interior
elements and specifying fixtures and furnishings. While our Members do not
usually call themselves “interior designers”, the broad definition of interior design

                                                  687 Willow Grove Street Hackettstown, NJ 07840
                                                           Phone: 908-852-0033 Fax: 908-852-1695
                                                                                   www.nkba.org

81955-1
contained in these laws clearly covers the services and work that our Members
perform on a daily basis. This is what the Pennsylvania bill seeks to limit.

Proposed Legislation in Pennsylvania

The bill that is to be considered by the Committee, HB No. 1521, raises a number
of concerns because it contains portions of both a Title and Practice Act. First,
the bill provides for use of the term “Licensed Interior Designer”, “Registered
Interior Designer” or “Registered Design Professional” by those few individuals
who meet the licensing requirements imposed in the bill. Secondly, the proposed
bill is a Practice Act since it would prohibit a person from engaging in or
attempting to engage in the practice of interior design unless that person is
licensed (there are some limited exemptions which will be addressed below).

Licensing implies to the public the right and ability to perform a service. As
defined in Webster’s Dictionary, a license is:

a permission granted by competent authority to engage in a business or
occupation or in an activity otherwise unlawful.

Thus, without being licensed, the public has every reason to believe that
performing the activity is against the law (which it would be under this bill). It is
likely that the public will not make the distinction between “unlicensed” design
services which you are permitted to perform and those services which you may
not provide.

But what exactly is being regulated by the bill? Under the proposed legislation,
regulated interior design services are defined as including:

              (1) designs, consultations, studies, drawings, specifications, space
              planning and furnishings, contract documents, interior construction
              documents and signing and sealing of those documents;

              (2) the administration of design construction contracts relating to
              nonstructural or nonseismic interior elements of a building
              structure; and

              (3) research and analysis of the client's goals and requirements,
              development of documents, development of documents,
              assessment of codes, drawings and diagrams that outline those
              needs.

Most assuredly, the work and services that our Members provide are swept up in
the broad definition of interior design. Whether you consider yourself an interior
designer or not, you are providing interior design services and are thus subject to
this law.

81955-1                                  2
As noted above, if this legislation passes, you will not be permitted to provide or
offer to provide “interior design services” unless you are licensed or come under
the exemptions listed below.

There is really only one exemption to the requirement that you be licensed in
order to perform interior design work that is applicable to our Members (there are
some others which really don’t impact or pertain to us). Unfortunately, the
exemption is even worse than what was proposed last time and does not protect
our Members from the prohibitions contained in the law. The exemption is a
limited residential retail exemption which exempts:

            an individual or business working as a kitchen and bath retailer in the
            kitchen and bath industry.

This exemption is even much less than meets the eye. First, you must be a
retailer in order for the exemption to apply; independent designers who work
out of a studio or other location or those who only offer design services
and who do not sell product at retail do not qualify. Secondly, as defined by
the bill, the exemption only applies to those whose work is predominantly in the
design planning, retailing, installation and sale of residential kitchens and
baths - no media rooms or laundries, no wall units or wet bars, no commercial
work of any kind, no public spaces, no restaurants or offices, no assisted living or
group homes, no condominium club facilities – only services related to residential
kitchens and baths.

Qualification for Licensure

In order to be licensed by the Commonwealth you must meet the requirements
as set forth in the law itself, as well as those decided by the State Board of
Interior Designers which is to be established once the law is enacted. Pursuant
to the bill, in order to be considered for licensure, you must:

    (i) hold a baccalaureate degree from a minimum four-year program
        approved by the Board;

    (ii) have two years of full-time diversified interior design experience or have
         completed a monitored internship program as approved by the Board;

and

    (iii)      Pass the National Council for Interior Design Qualification exam
            (“NCIDQ”), which requires in order to even sit for the test, various amounts
            of experience and interior design college coursework leading to a degree
            or diploma).

The proposed legislation does contain a “grandfathering provision” for a few
years after passage; however few if any of our members will qualify for
81955-1                                      3
grandfathering. First, you still have to pass as yet, unspecified portions of the
NCIDQ test as determined by the Board. In order to sit for that exam, you need
to graduate from an approved interior design program and intern under the direct
supervision of a licensed designer, NCIDQ certificate holder or architect for
anywhere from 2-5 years. Grandfathering also requires that you document at
least 5 years of diversified experience practicing regulated interior design
and complete 10 hours of continuing education as approved by the Board.
However, if you are at least 50 years old, you may be grandfathered if you have
15 years of diversified experience practicing interior design and complete 10
hours of continuing education as approved by the Board. Experience has shown
us in other states, however, that proving to the Board that you have what they
consider to be “diversified experience practicing interior design” is extremely
difficult at best and most likely, our members will not have the broad based
experience that would satisfy the licensed designers sitting on the Board. In any
event, the grandfathering provision expires on December 31, 2016 which
essentially precludes any of our members from being grandfathered.

(There are other requirements for licensure, such as that the applicant is of good
moral character, is not addicted to the habitual use of alcohol, narcotics or other
habit-forming drugs and has not been sentenced for a felony).

Penalties

Anyone found practicing regulated interior design without a license is guilty of
violating the law and is subject to both civil penalties and criminal prosecution. A
person violating the law is guilty of a misdemeanor of the second degree,
punishable by imprisonment for up to three years. In addition, among other
sanctions such as loss of license and mandatory psychiatric counseling, the
Board can impose an administrative penalty of up to $10,000.

The NKBA’s National Position

The NKBA has formally adopted a position to oppose Title and/or Practice Acts in
general and specifically in Pennsylvania for numerous reasons:

    •     There is no guarantee that a Title/Practice Act will not lead to a more
          restrictive Practice Act

    •     There is no guarantee that exemptions in Title or Practice Acts today will
          not be removed tomorrow – once on the books, they may be easily and
          without much fanfare, changed

    •     Once a state (anywhere) enacts a Title or Practice Act, it gives credence
          to the movement in other states to encourage additional interior design
          legislation in those states that may not offer similar or any exemptions


81955-1                                    4
    •     Regulatory enforcement of a new law does not always accurately reflect
          the intent of the law. Agencies charged with creating and administering
          the rules and procedures to approve applicants for licensure often have
          limited or no state oversight and frequently interpret their requirements in
          the most restrictive way imaginable in an effort to limit those who may
          perform interior design services and compete for their work. The result is
          costly litigation and an uncertain outcome; Alabama’s Board was stayed
          by the Court for just this reason

    •     Title and Practice Acts create another unnecessary bureaucracy without
          adding value

    •     The NKBA does not accept the proposition that only the NCIDQ exam
          tests the minimum competencies to perform interior design services.
          Other exams, such as our CKD and CBD exams, the Council for
          Qualification of Residential Interior Designers exam and state code exams
          are equally valid and should be recognized. In fact, the State of California
          does just that and has rejected repeated efforts of ASID to accept only
          their supported (both financially and philosophically) test. The NCIDQ
          exam, an independent, unregulated test with a historically low pass rate of
          under 50%, should not be granted a monopoly on saying who does and
          who does not possess the minimum skill to practice interior design,
          including kitchen and bath design

    •     The NKBA does not accept the proposition that only CIDA accredited
          schools are competent to train designers to practice their profession.
          Aside from the many other educational institutions which offer valid and
          rigorous interior design programs, including our endorsed colleges, NKBA
          supports various pathways of entry into the profession. Many people can
          acquire the necessary skills through extended work experience or through
          shorter degree programs combined with other education. Many others
          have started in one area and evolved into competent practitioners in
          another. Society does not benefit by a narrowing of access to creative
          fields.

    •     Competence is best judged on the basis of the work produced rather than
          credentials alone. Credentials are a result of, but not substitutes for,
          competence. Competence can and often does exist in the absence of a
          credential; especially when creativity is a significant feature of the
          profession. Many of our kitchen and bath professionals have chosen not
          to seek the credentials that our certification programs provide

    •     There has been no demonstration of harm to the “public health, safety or
          welfare” to warrant increased governmental regulation of a profession
          which has, for so many years, operated without such interference. Since
          1988, five state agencies have examined the need for titling and/or
          licensing laws for interior designers and all five found no benefit to the
81955-1                                    5
          public, concluding that consumers already possessed the means to make
          informed decisions about interior designers and their services. There has
          been no evidence whatsoever that a failure to license interior designers
          has adversely impacted the consuming public

    •     Interior design title and practice act legislation is not being advocated by
          the public through consumer advocacy groups, attorneys general offices
          or divisions of consumer affairs. Rather, such laws are being pushed by a
          small group of designers who have a personal stake in limiting competition
          under the guise of “consumer safety” and are asking that the State give a
          select few a competitive and economic advantage over others, including
          kitchen and bath designers

    •     Existing state and local laws and codes already afford the consumer with
          protection against unqualified persons performing construction and
          remodeling in the home. Building inspectors, code enforcement officials,
          licensed electricians, licensed plumbers and others all have a role in
          verifying that work performed by contractors meets the code and safety
          requirements enacted to protect the public. Additional licensure merely
          duplicates those efforts and creates another layer of bureaucracy and
          oversight

    •     The NKBA believes that the consumer should be given a choice in
          retaining the services of a design professional. Our Members wish to
          compete on the merits of their work and abilities and do so through their
          portfolios, references, design competitions, certification and continuing
          education. The NKBA spends in excess of 1 million dollars each year in
          educating the public as to the benefits of retaining the services of an
          NKBA Member; we do not support efforts to limit freedom of choice among
          consumers by dictating who they can and cannot hire to perform design
          work, with the attendant increased cost to the consumer which always
          follows when competition is restricted.




81955-1                                    6

								
To top