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

Supreme Court of Oregon

June 2, 2017

TWIST ARCHITECTURE & DESIGN, INC.; David Hansen; and Kirk Callison, Respondents on Review,
v.
OREGON BOARD OF ARCHITECT EXAMINERS, Petitioner on Review.

          Argued and Submitted January 10, 2017

         On review from the Court of Appeals BAE No. 10035; CA A152929;.[*]

          Susan Yorke, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Anastasia P. Boden, Pacifc Legal Foundation, Sacramento, California, argued the cause for respondent on review David Hansen. John M. Groen fled the brief.

          J. Kevin Shuba, Garrett Hemann Robertson P.C., Salem, argued the cause and fled the brief for respondents on review Twist Architecture & Design, Inc., and Kirk Callison.

          Nadia H. Dahab, Stoll Stoll Berne Lokting & Schlachter PC, Portland, fled the brief for amicus curiae National Council of Architectural Registration Boards. Also on the brief were Steven C. Berman, Stoll Stoll Berne Lokting & Schlachter PC, and Ronald M. Jacobs, Venable LLP, Wash i ng ton, DC.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, Nakamoto, and Flynn, Justices. [**]

          [361 Or. 508] Case Summary: The Board of Architect Examiners brought this proceeding against respondents for engaging in the unlawful practice of architecture and unlawfully representing themselves as architects. ORS 671.020(1). The respondents, a Washington architecture firm and its principals, were hired to provide master plans for several shopping centers for an Oregon client. Such master planning involves drawing site plans that show the size, shape and density of buildings, and involve determinations of whether the land is suitable and whether parking, emergency access, and ingress and egress needs can be met. Respondents, who had not applied for licensure in Oregon, maintained a website in which they indicated that licensure in Oregon was “pending, ” alongside descriptions of master planning projects they had undertaken in Oregon. Held: The Board correctly concluded that the preparation of master plans such as those prepared by respondents constitutes the unlawful practice of architecture. The Board also correctly concluded that respondents unlawfully represented themselves as architects in their representations on their website.

         The decision of the Court of Appeals is affirmed in part and reversed in part. The order of the Board of Architect Examiners is affirmed

          [361 Or. 509]

          WALTERS, J.

         The Oregon Board of Architect Examiners (board) seeks review of a decision of the Court of Appeals that reversed in part the board's determination that respondents (the Washington firm Twist Architecture & Design, Inc., and its principals, Callison and Hansen), engaged in the unlawful practice of architecture and unlawfully represented themselves as architects. ORS 671.020(1).[1] The board urges this court to conclude that respondents, who were not licensed to practice architecture in Oregon, engaged in the "practice of architecture" when they prepared master plans depicting the size, shape, and placement of buildings on specific properties in conformance with applicable laws and regulations for a client that was contemplating the construction of commercial projects. The board further urges that respondents' use of the term "architecture" in the logo on those master plans and the phrase "Licensed in the State of Oregon (pending)" on their website violated the law prohibiting unlicensed individuals from representing themselves as architects or indicating that they are practicing architecture. For the reasons that follow, we agree with the board. Accordingly, we reverse in part the decision of the Court of Appeals, Twist Architecture v. Board of Architect Examiners. 276 Or.App. 557, 563, 369 P.3d 409 (2016), and affirm the board's order.

         I. FACTS AND PROCEDURAL POSTURE

         We take the facts, which are supported by substantial evidence in the record, from the board's final order. [361 Or. 510] Callison and Hansen formed Twist Architecture & Design, Inc. (Twist) in October 2008, in the state of Washington. Callison is licensed as an architect in Washington; Hansen is not licensed as an architect in any state. At the times of the violations alleged here, neither Callison nor Hansen was licensed to practice architecture in Oregon, and neither had applied for licensure.

         A. Design Projects

         1. The 172nd Avenue Project

         In October 2008, respondents sent a letter of agreement to Gramor Development, a real estate development company located in Oregon, for what was described as "concept master planning design services" for a shopping center on property located on 172nd Avenue in Beaverton, Oregon. The agreement was on letterhead entitled "Twist Architecture & Design, " and listed Callison and Hansen as principals. It specified payment terms, and indicated that Twist would provide master planning for the property, initially to include locations of access points, potential building sizes, a development program, and statistics. It further specified that after receiving input from Gramor, Twist would provide a more detailed plan that would include street level perspectives, a final rendered site plan, and a computer-generated aerial perspective defining massing. In the following months, Twist provided Gramor with several sets of technical drawings of the property, entitled "schemes, " that showed the precise shapes of buildings and their square footage, their locations on the property, locations of parking, parking ratios, and surrounding streets, all drawn to scale. The schemes contained a logo that showed the words, "Twist, " "Architecture, " and "Design." While preparing the schemes, Hansen corresponded with Gramor about the site, discussing topography, city code requirements, and the building sizes needed by various potential lessees. Services provided by both Callison and Hansen were billed to Gramor at hourly rates. The 172nd Avenue project ultimately was not constructed due to a downturn in the economy.

         2. The Progress Ridge Project

         At about the same time, respondents entered into a letter of agreement with Gramor to provide master planning [361 Or. 511] for a shopping center known as Phase 2 of the Progress Ridge Project, also located in Beaverton, Oregon. That agreement indicated that Twist would prepare a series of master plans that initially would outline locations of access points to and from the property, potential building sites, development programs, and statistics. The agreement further provided that follow up plans would provide additional details, and that Twist would be available for refinements to the plan required for leasing. An exhibit attached to that agreement described the services being provided to Gramor as "architectural services." Again, Twist prepared several schemes containing a logo that showed the words, "Twist, " "Architecture, " and "Design, " and that depicted the shapes and locations of buildings, indicated square footage for each building and for the site in total, as well as the number of parking spaces. The schemes contained street-level views of the buildings, showing features such as walls, awnings, and doors. While preparing the schemes, Hansen corresponded with Gramor about city code requirements, the potential need for a parking structure on the site, square footage, street frontage, parking ratios, turn lanes, and fire truck access. Services provided by Hansen were billed to Gramor at hourly rates. Gramor ultimately developed the Progress Ridge project on a smaller scale, and did not use the plans created by respondents.

         3. The Sherwood Project

         Additionally, in approximately the same time frame, Twist undertook to prepare multiple schemes for another Gramor shopping center project, located in Sherwood, Oregon. Those schemes showed the shapes and locations of buildings and their square footage, parking spaces, and traffic lanes. Some of the drawings showed buildings rendered with shadowing or shading to differentiate between walls and roofs. Some were drawn to scale, while some were not. While preparing the schemes, Hansen corresponded with Gramor about the needs of specific tenants, and made requested modifications to the schemes at Gramor's request. Services provided by Callison and Hansen were billed to Gramor at hourly rates. Gramor ultimately did not develop this project due to the downturn in the economy.

          [361 Or. 512] The invoices sent to Gramor, as well as the master plans provided to Gramor for the projects, all contained the logo that showed the words, "Twist, " ...


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