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The following analysis was obtained from the California Legislature's online materials on 7-27-99. The intent of the current law dealing with interior designers, the intent of this year's bill and the supporters and opponents opinions are addressed herein. This analysis raises
several issues that may once again need to be addressed in the Oklahoma Legislature in the near future.
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| Hearing Date:July 12, 1999 |
| Bill No:AB 1096 |
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SENATE COMMITTEE ON BUSINESS AND PROFESSIONS
Senator Liz Figueroa, Chair
Bill No: AB 1096 Author: Romero
As Amended:June 28, 1999 Fiscal: Yes
SUBJECT: Interior designers; regulation
SUMMARY: Establishes a state regulatory program for
interior designers and creates a Board of Interior Design.
Existing law:
1)Provides for a state sanctioned private certification
program for interior designers, whereby only
practitioners who meet specified education and experience
standards may use the designation "certified interior
designer" when granted by a private certifying body.
This program is scheduled to sunset January 1, 2002.
2)Provides for regulation of design and construction
professionals, including architects, engineers, and
contractors, by various boards in the Department of
Consumer Affairs (DCA).
3)Subjects the private certification program for interior
designers to sunset review by the Joint Legislative
Sunset Review Committee (JLSRC).
4)Requires proponents of legislation that would authorize
new or expanded professional regulating entities (i.e.,
boards or similar entities) to provide the Legislature
with specified information to support the regulatory
proposal (sunrise review).
This bill:
1)Repeals the private certification program for interior
designers and instead establishes a nine-member Board of
Interior Design (Board) in the DCA to regulate the
practice of interior design and authorizes it, among
other things, to establish unspecified registration fees,
develop a registration process, and adopt guidelines for
the use of the title "registered interior designer."
2)Requires individuals wishing to perform specified
interior design work and represent themselves as
registered interior designers to be registered with the
Board and delineates education, experience and
examination requirements for applicants.
3)Defines the terms "registered interior designer,"
"interior design services," "nonstructural or
nonseismic", and other related terms, thereby defining
the scope of practice for registered interior designers.
4)Specifies that no one, including architects and
professional engineers, are precluded by the bill from
practicing interior design or interior decoration or
referring to themselves as interior designers.
5)Automatically grants existing privately certified
interior designers registration status. Thus existing
certified interior designers would be "grandfathered"
into the registration program and exempt from the
registration requirements of the bill.
6)Requires registered interior designers to use a written
contract with respect to their professional services,
with specified exceptions.
7)Provides for the Board to issue a stamp for use by
registered interior designers when they submit plans to
local building authorities or state agencies.
8)Delineates grounds for disciplinary action against
registered interior designers and provides that a
violation of any provision of the bill is punishable as a
misdemeanor.
9)Requires the Board to establish continuing education
requirements for registered interior designers.
10) Creates the Interior Designers Restitution Fund,
supported by a portion of registration fees to be
determined by the Board, for the purpose of reimbursing
aggrieved consumers.
11) Creates the Interior Designers Fund, supported by the
portion of registration fees not used for the restitution
fund, for the purpose of supporting the Board's activities.
12) Provides that certain funds paid for private
certification shall be used for establishment of the new
Board.
13) Provides that the program created by this bill is
subject to the "sunset review" provisions of current law.
14) Provides a sunset date of January 1, 2005 for the
program.
15) States legislative intent that registered interior
designers comply with California Building Code,
California Fire Code, and local building codes.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, the DCA estimates on-going costs of about
$400,000 for the Board's licensing and enforcement
activities. Costs would be offset by fees charged to
licensees to the extent that sufficient numbers of
practitioners chose to become registered and the fees were
established at sufficient levels to support the program and
the restitution fund.
COMMENTS:
1.Measure Intended to Grant Title Protection to Interior
Designers. According to the author's office, the bill is
intended to prevent interior designers from being
excluded from the design and construction industry due to
the new requirements in the International Building Code
2000 (IBC 2000). The bill attempts to accomplish this by
offering title protection (the exclusive right to use the
specific professional designation of "registered interior
designer") to interior designers and creating a new
regulatory program and board within DCA for interior
designers.
According to the joint sponsors of the measure, the
California Council for Interior Design Certification
(CCIDC) and California Legislative Conference on Interior
Design (CLCID), IBC 2000 will exclude unregistered
interior design professionals from submitting interior
design plans to building officials. They suggest that
California's existing recognition of "certified interior
designers" does not satisfy IBC 2000 requirements that
interior designers be registered.
The sponsors further argue that interior design
professionals are the only design professionals who are
not subject to state licensure, which puts them at a
disadvantage economically in relation to other design
professionals such as architects and contractors.
Suggesting that there is gender inequity in the building
industry, the sponsors also note that the vast majority
of interior design practitioners are female, in contrast
other building industry licensees, who are predominately
male.
2.International Building Code 2000 Requirements Are Crucial
In Determining Need for the Bill. The sponsor contends
that the forthcoming International Building Code
requirements absolutely will preclude design
professionals who are not registered by a state
government agency from submitting plans to local building
officials. The sponsors argue that this requirement will
require interior designers to find another line of work,
become licensed as architects or engineers, or go to work
for a licensed design professional. All these
alternatives are unacceptable to the interior design
community. To document the IBC requirements, the sponsor
provided the committee with a document from the
International Code Council labeled "Final Draft, July
1998," which contains the following excerpts:
106.1 Submittal documents. The construction
documents shall be prepared by a registered design
professional where required by the statutes of the
jurisdiction in which the project is to be constructed
(italics added).
106.3.4 Design professional in responsible charge.
When it is required that documents be prepared by a
registered design professional, the building official
shall require the owner to engage and designate on the
building permit application a registered design
professional (italics added).
Several opponents to the measure have questioned whether
the proposed language of the IBC 2000 truly does restrict
the ability of interior designers to submit plans. For
example, the Board of Architectural Examiners (BAE)
suggests that IBC 2000 is "no more or less restrictive
than current codes." The BAE notes that the 1998
California Building Code (based on the 1997 Universal
Building Code) reads:
106.3.2 Submittal documents. When such plans are
not prepared by an architect or engineer, the building
official may require the applicant submitting such
plans or other data to demonstrate that state law does
not require that the plans be prepared by a licensed
architect or engineer.
The BAE also argues that existing law allows unlicensed
persons, including interior designers, to submit plans to
building officials and that the proposed changes in the
IBC 2000, like the existing building codes, do not impact
California statutes regulating unlicensed practice or
preclude interior designers or anyone else from submitting plans.
Since there is some question about the interpretation of
the IBC 2000, the Committee may wish, as the Assembly
policy committee analysis suggested, to request the
sponsor to provide additional documentation, or seek an
opinion from Legislative Counsel or the Attorney General,
to determine the extent to which this language
constitutes an absolute mandate for state registration of
interior designers. This Committee should note that
neither the author nor sponsors responded to the Assembly
policy committee's suggestion.
1.Interior Design Profession Has a Long History of Seeking
Legislative Recognition. As noted in the Assembly
Committee analysis of this bill, interior design
certification has a long and contentious legislative
history, beginning with a failed effort in 1983 to
establish title protection and a new board for interior
designers. Initial legislative recognition of interior
designers was enacted through SB 153 (Craven, Chapter
396, Statutes of 1990), which first established private
certification. Several subsequent measures reauthorized
the private certification program and extended the sunset
date.
The JLSRC reviewed the program in 1996, and recommended
that it be allowed to expire. However, the Legislature
did not follow the recommendation and reauthorized the
program with SB 435 (McPherson, Chapter 261, Statutes of
1998), which is now scheduled to expire January 1, 2002.
2.Measure Intended to be a Title Act. To understand the
primary policy consideration raised by this bill (whether
there should be state regulation of interior design
work), it is important to note the distinction between
"practice regulation" and "title regulation". The following
is based on the Assembly policy committee analysis.
A practice act confers the exclusive right to practice a
given profession, and to advertise one's status as a
licensed professional, on practitioners who meet
specified criteria related to education, experience, and
examination. A practice act is generally thought to be
the highest and most restrictive form of professional
regulation, and is intended to avert severe harm to the
public health, safety or welfare that could be caused by
unlicensed practitioners.
A title act, on the other hand, reserves the use of a
particular professional designation to practitioners who
have demonstrated specified education, experience or
other qualifications. A title act does not restrict the
practice of a profession or occupation; it merely
differentiates between practitioners who meet the
specified qualifications and are authorized by law to
represent themselves accordingly, and those who do not.
Title acts can be found in many hybrid forms in
California law. The current law with respect to interior
designers confers the responsibility for title protection
to private certifying organizations. Title act
protection also exists for occupational therapists,
perfusionists, and dieticians. The extreme case of a
hybrid California law is the professional engineers'
licensing law, which combines initial practice licensure
(civil, mechanical, electrical) with subsequent optional
title certification (e.g., soils, fire safety).
The author and sponsors have indicated that they intend
to create a title act. The distinction between title and
practice acts is critical to the consideration of this
bill because the sponsor has consistently expressed the
intent to create a title act and pledged to amend the
bill accordingly. However, the bill still appears to
contain numerous practice act provisions. In contrast,
the title act for occupational therapists (Section 2570
of the Business and Professions Code) does not contain
scope of practice definitions. In addition, none of the
title acts for occupational therapists, perfusionists,
or, dieticians require a separate board to oversee their
implementation, but rather rely on existing state
regulatory programs or private organizations for
implementation. The statutes in the Business and
Professions Code establishing these title acts are
attached to this analysis for comparison.
3.Need for State Regulation not Established. The sponsor
and author have fulfilled the requirement that proponents
of new regulatory programs complete a "sunrise"
questionnaire. However, the document, though voluminous,
has failed to establish that there is any serious public
harm-health or safety or serious economic-from an absence
of regulation of interior designers. As the Legislative
Analyst's Office notes in a 1997 report to the
Legislature, state intervention in a marketplace is
warranted only when there is a significant potential for
public harm.
In addition, it is not clear that the entire profession
supports further regulation. For example, only about a
fourth of the individuals who potentially may be affected
by the bill (3,200 out of 12,000 total practitioners of
the occupation) have chosen to participate in the
existing private certification program.
A question for committee members to consider is whether
interior design is a separate core profession or one
affiliated and done in conjunction with other design
work? It could be argued that the majority of complex
interior design work is not done independent of other
design professionals. Thus, the marketplace provides
private oversight and supervision mechanisms for interior
design work. Aren't these marketplace mechanisms able to
assure that the public is protected against an
incompetent interior designer?
Perhaps most importantly, it appears that there are no
consumer groups or other groups outside of the profession
in support of the measure. According to CCDIC's sunrise
report, developers and real estate brokers have shown
some hesitancy in using the services of "non-licensed"
interior designers. However, the Committee has not
received any correspondence from these other professions
indicating a need to increase regulation of interior
designers. Lastly, and perhaps most significantly, the
Committee has not heard from building officials, who are
most directly involved with reviewing interior design
plans.
4.Measure Still Contains Many Unresolved Technical Issues.
In addition to the core policy question at issue in the
measure, the bill contains numerous unresolved technical
issues. Among them are the following:
Unspecified fees - The bill does not establish a
fee amount, but rather authorizes the proposed board
to adopt an unspecified fee. Most DCA regulatory
programs have maximum fee levels established in
statute.
Board member terms - The bill is silent on the
terms which board members would serve. Most DCA
regulatory programs establish term limits and
conditions for service.
Start-up funding - Typically, a new licensing
program requires a loan (often from the General Fund)
to pay for start-up costs. The bill contains no
provisions for the program's start-up money, nor any
repayment mechanism.
Restitution fund - As currently structured, it is
unlikely that the proposed fees would provide sufficient
funding for the restitution fund. The author may want to
consider establishing a separate funding mechanism for the
restitution fund, such as a surcharge on each contract.
Disciplinary Provisions - Though the bill does contain a
number of disciplinary provisions, they need more
specificity and clarity. For example, the provisions for
denial of registration with regard to applicants who have
committed crimes is not consistent with other DCA
regulatory programs.
5.Supporters Argue That Interior Design Work Does Affect
Public Safety. The committee received numerous letters
from interior design practitioners that attested to the
essential role of interior designers with respect to fire
safety, entrance and egress, disabled access, and other
considerations. Some of the letters cited considerations
of professional and gender equity with respect to the
professional and economic standing of the respective
design professions.
6.Measure is Opposed for a Number of Reasons. The
committee received opposition letters from the DCA boards
that regulate architects and engineers, the Department of
Finance, the professional associations for architects and
engineers, and a few individual interior designers.
The Board of Architectural Examiners (BAE) cited several
concerns with the bill suggesting that: the bill would
create a title act with practice act provisions; the
sponsor's contention that the IBC 2000 would prevent
interior designers from submitting plans is incorrect;
and the bill allows interior designers to outweigh the
judgement of local building officials by authorizing them
to design some seismic elements of a building.
The Board for Professional Engineers and Land Surveyors
(BPELS) has an oppose unless amended position on the
bill. BPELS suggests that the scope of practice for
registered interior designers proposed in the bill is
unclear and ambiguous and therefore may create confusion
about whether an interior designer is able to perform
certain engineering work. BPELS has requested an
amendment to clarify that the bill would not authorize
interior designers to perform any regulated engineering
work.
The Department of Finance is opposed to the bill on the
basis of fiscal issues, including a concern that a
General Fund or DCA special fund loan would be needed to
cover program start-up costs and that it is unclear how
fee collection would occur or where the fees would be
deposited.
The American Institute of Architects, California Council
(AIACC), also is in opposition to the bill and makes the
same arguments against the bill that the BAE voices.
Strongly arguing that the IBC 2000 will not restrict the
ability of interior designers to submit interior design
plans, the AIACC notes that the IBC was written with the
intent to allow state and local laws to determine which
design professionals can prepare which design plans.
AIACC further suggests that the IBC 200 would only
require an engineer or architect to prepare plans when
specifically required by state law, and thereby would not
preclude other types of plans to be prepared by an
interior designer. Lastly, the AIACC suggests that the
bill is designed to give those who elect to participate
in the registration program a competitive advantage over
other interior designers and architects by allowing them
to advertise to clients that they will have access to a
restitution fund.
The Consulting Engineers and Land Surveyors of California
(CELSOC) argue that there is no risk to the public from
the practice of interior design. It also argues that the
creation of a title act, which can create the impression
of a state-regulated practice, would not offer any
consumer protection if indeed there is any risk to the
public.
7.Proponents Should Consider Other Alternatives. There are
several alternatives to the program proposed in the bill
that the proponents may want to consider in order to
address the issue of potential IBC 2000 preemption. The
first would be to amend the California Building Code or
other appropriate codes to affirmatively state that
California does not require registration for submittal of
interior design documents. Another option would be to
extend the private certification program for five years.
Lastly, the proponents may want to consider having
another existing board, such as the BAE or Contractors
State Licensing Board (CSLB), absorb the new program
rather than creating a new board.
SUPPORT AND OPPOSITION:
Support:
California Council for Interior Design Certification (Sponsor)
California Legislative Conference on Interior Design (Sponsor)
Approximately 50 individual interior designers
Opposition:
American Institute of Architects, California Council
Board for Professional Engineers and Land Surveyors (unless amended)
Board of Architectural Examiners
Consulting Engineers and Land Surveyors of California
Department of Finance
Approximately 5 individual interior designers
Consultant: Sailaja Cherukuri |
