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

No. 30 June 2, 2017 507

IN THE SUPREME COURT OF THE

STATE OF OREGON

TWIST ARCHITECTURE & DESIGN, INC.;

David Hansen; and Kirk Callison,

Respondents on Review,

v.

OREGON BOARD OF ARCHITECT EXAMINERS,

Petitioner on Review.

(BAE No. 10035; CA A152929; SC S064048)

On review from the Court of Appeals.*

Argued and submitted January 10, 2017.

Susan Yorke, Assistant Attorney General, Salem, argued

the cause and filed the briefs for petitioner on review. Also

on the briefs were Ellen F. Rosenblum, Attorney General,

and Benjamin Gutman, Solicitor General.

Anastasia P. Boden, Pacific Legal Foundation, Sacramento,

California, argued the cause for respondent on review David

Hansen. John M. Groen filed the brief.

J. Kevin Shuba, Garrett Hemann Robertson P.C., Salem,

argued the cause and filed the brief for respondents on review

Twist Architecture & Design, Inc., and Kirk Callison.

Nadia H. Dahab, Stoll Stoll Berne Lokting & Schlachter

PC, Portland, filed 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,

Washington, DC.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, Nakamoto, and Flynn, Justices.**

______________

**  On judicial review from a Final Order of the Oregon Board of Architectural

Examiners dated October 31, 2012. 276 Or App 557, 369 P3d 409 (2016).

**  Baldwin, J., retired March 31, 2017, and did not participate in the decision

of this case.

508 Twist Architecture v. Board of Architect Examiners

WALTERS, J.

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.

Case Summary: The Board of Architect Examiners brought this proceed-

ing 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 den-

sity 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 web-

site 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 them-

selves 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.

Cite as 361 Or 507 (2017) 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 respon-

dents (the Washington firm Twist Architecture & Design,

Inc., and its principals, Callison and Hansen), engaged in

the unlawful practice of architecture and unlawfully repre-

sented 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 construc-

tion 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 prohib-

iting unlicensed individuals from representing themselves

as architects or indicating that they are practicing architec-

ture. 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 P3d 409 (2016), and affirm the

board’s order.

I.  FACTS AND PROCEDURAL POSTURE

We take the facts, which are supported by sub-

stantial evidence in the record, from the board’s final order.

1

ORS 671.020(1) provides:

“In order to safeguard health, safety and welfare and to eliminate unnec-

essary loss and waste in this state, a person may not engage in the practice

of architecture or assume or use the title of ‘Architect’ or any title, sign, cards

or device indicating, or tending to indicate, that the person is practicing

architecture or is an architect or represent in any manner that the person

is an architect, without first qualifying before the State Board of Architect

Examiners and obtaining a certificate of registration as provided by ORS

671.010 to 671.220.”

ORS 671.010(6) defines the “practice of architecture” as “the planning, design-

ing or supervising of the erection, enlargement or alteration of any building or

any appurtenance thereto other than exempted buildings.” That definition was

altered in 2013, substituting the word “observing” for “supervising.” Or Laws

2013, ch 96, § 1. The same language was altered in other parts of ORS chapter

671 as well. All references in this opinion are to the 2011 version of the statutes.

510 Twist Architecture v. Board of Architect Examiners

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 agree-

ment 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, ini-

tially to include locations of access points, potential building

sizes, a development program, and statistics. It further spec-

ified 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 fol-

lowing 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 park-

ing, 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

Cite as 361 Or 507 (2017) 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 fur-

ther 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 ren-

dered 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.

512 Twist Architecture v. Board of Architect Examiners

The invoices sent to Gramor, as well as the mas-

ter plans provided to Gramor for the projects, all contained

the logo that showed the words, “Twist,” “Architecture,” and

“Design.”

B. Advertising

Shortly after Twist was formed in 2008, it con-

tracted with a company to prepare a website for “Twist

Architecture & Design” that contained biographical infor-

mation about Callison and Hansen, as well as information

about Twist’s architectural projects. Callison’s page included

the statement, “Licensed in the State of Oregon (pending),”

and immediately to the left of this, listed the Sherwood proj-

ect under “selected experience.” At the time the website was

created, Callison was licensed in Washington and intended

to file a reciprocal application for licensure in the state of

Oregon, but had not done so. Hansen’s page likewise con-

tained the statement “Licensed in the State of Oregon (pend-

ing),” and immediately to the left of this, listed “Progress

Ridge Town Center (under construction),” and the Sherwood

project. Hansen was not licensed to practice architecture in

any jurisdiction.

C.  Proceedings Below

In May 2011, the board initiated this contested case

proceeding, seeking to impose a civil penalty on respon-

dents. The board alleged that respondents’ conduct violated

ORS 671.020(1).

An administrative law judge held a contested case

hearing and issued a proposed order concluding that respon-

dents did not violate ORS 671.020(1) in most of the alleged

respects. The board disagreed. It issued an amended order

concluding that, without a license to do so, respondents had

engaged in the practice of architecture and had represented

themselves as architects.2

2

In addition to reaching a different conclusion than the administrative law

judge, the board’s amended order made both amended and new findings of fact.

In particular, the board found that the Twist logo and billings included the word

“architecture,” that certain of its agreements with Gramor were for “architec-

tural” services, and that its schemes depicted “buildings,” as that term is defined

in ORS 671.010(3).

Cite as 361 Or 507 (2017) 513

In addressing whether respondents had engaged

in the practice of architecture, the board focused on the

fact that, as statutorily defined, the “practice of architec-

ture” includes “planning” and “designing.” The board dis-

cussed the role that master plans play in the development

of commercial building projects and found that a master

plan is created at the beginning of such a project to identify

whether a particular site will support the proposed devel-

opment. Master plans, the board found, are drawn to scale

to demonstrate that the proposed project will fit within the

site’s boundaries. The board explained that, in Oregon,

architects and engineers perform such site planning and

that the design of master plans is tested on architectural

licensing examinations. The board also found it significant

that, in this case, respondents themselves had described

their services as “architectural” services, both in their letter

agreements with Gramor and in their internet advertising.

The board concluded that, because respondents had created

master plans for Gramor that included renderings of build-

ings and detailed data such as the dimensions and square

footages of buildings, they had engaged in planning and

designing in contemplation of the erection of those buildings

and had therefore engaged in the practice of architecture.

Because respondents were not licensed to do so in Oregon,

the board concluded that they had violated ORS 671.020(1).

More specifically, the board concluded that Twist and

Hansen had violated ORS 671.020(1) in working on all three

of the described Gramor projects and that Callison had vio-

lated ORS 671.020(1) in working on the 172nd Avenue and

Sherwood projects.

The board also concluded that respondents had vio-

lated the statute by representing themselves as practicing

architecture when they were not licensed to do so. The board

relied on respondents’ use of the term “architecture” in the

firm’s logo on the Gramor master plans and the informa-

tion related on their website. In the latter respect, the board

The only amended factual finding that respondents challenge on review is the

board’s finding that the master plans depict “buildings” as that term is defined in

ORS 671.010(3). In their response, respondents Callison and Twist ask this court

to conduct de novo review of that finding. However, there are no factual disputes

about the images in question. We address respondents’ argument that the images

at issue are not “buildings,” see 361 Or at 519 n 6.

514 Twist Architecture v. Board of Architect Examiners

reasoned that respondents had indicated that they were

practicing architecture by touting their work on the Gramor

projects and that Callison and Hansen had unlawfully used

the phrase “Licensed in the State of Oregon (pending)” in

their website biographies.

Respondents sought judicial review and, in the

Court of Appeals, contended that the master plans that

they had prepared for Gramor, which they referred to as

“feasibility studies,” were never intended to be, nor could

they be, used as a basis for construction. Accordingly,

respondents argued, they had not engaged in the practice

of architecture as a matter of law. Respondents also argued

that they had not unlawfully represented themselves as

presently engaged in the practice of architecture by using

their logo on the Gramor master plans or in their website

advertising.

In large part, the Court of Appeals agreed with

respondents. It concluded that “(1) the board erred in deter-

mining that [respondents] engaged in the unlicensed prac-

tice of architecture because Twist’s preparation of the feasi-

bility studies did not constitute the ‘practice of architecture,’

(2) the board’s determination that Twist violated the statute

and rule for using its logo on those studies lacks substantial

reason, and (3) the board’s determination that Callison and

Hansen violated the statute and rule for using the phrase

‘Licensed in the State of Oregon (pending)’ on their web-

site biographies lacks substantial reason.” 276 Or App at

572. The court concurred with the board in only one respect.

It concluded that the board had correctly determined that

respondents had violated ORS 671.020(1) by advertising the

Gramor architectural projects on their website, when they

were not licensed to practice architecture in Oregon. The

court reversed and remanded to the board for further pro-

ceedings. Id.

The board sought review in this court. We allowed

review to determine whether the board was correct in con-

cluding that the “practice of architecture,” as that term is

defined in ORS 671.010(6), includes the preparation of mas-

ter plans such as those that respondents prepared, and

whether respondents violated ORS 671.020(1) in preparing

Cite as 361 Or 507 (2017) 515

master plans for Gramor, in using its logo on those mas-

ter plans, and in using the phrase “Licensed in the State of

Oregon (pending)” on their website.

II. ANALYSIS

This case requires us to determine the meaning of

two statutes, ORS 671.020(1) and ORS 671.010(6).3 Again,

ORS 671.020(1) provides:

“In order to safeguard health, safety and welfare and

to eliminate unnecessary loss and waste in this state, a

person may not engage in the practice of architecture or

assume or use the title of ‘Architect’ or any title, sign, cards

or device indicating, or tending to indicate, that the person

is practicing architecture or is an architect or represent in

any manner that the person is an architect, without first

qualifying before the State Board of Architect Examiners

and obtaining a certificate of registration as provided by

ORS 671.010 to 671.220.”

ORS 671.010(6) provides:

“ ‘Practice of architecture’ means the planning, design-

ing or supervising of the erection, enlargement or alter-

ation of any building or of any appurtenance thereto other

than exempted buildings.”

3

In its order, the board also concluded that respondents’ conduct violated

ORS 671.020(4) and OAR 806-010-0037(7).

ORS 671.020(4) provides:

“A person may not practice or attempt to practice the profession of archi-

tecture, or assume the title of ‘Architect,’ ‘Consulting Architect’ or ‘Foreign

Architect,’ or use in connection with the business of the person any words,

letters or figures indicating the title of ‘Architect,’ ‘Consulting Architect’ or

‘Foreign Architect,’ without first complying with ORS 671.010 to 671.220.”

OAR 806-010-0037(7) provides:

“Except as provided in this rule, no title, sign, cards, or device may be

used to indicate or tend to indicate that the person or firm or business using

the title is practicing architecture or is an architect, or represents in any

manner that the person or firm or business is an architect or architectural

practice.”

The provisions of ORS 671.020(1) and (4) are duplicative, at least insofar as

the conduct at issue in the present case, and we do not understand the board or

the parties to assert otherwise. Accordingly, we limit our statutory analysis to

ORS 671.020(1). Similarly, no arguments are made that the administrative rule

applies to any conduct at issue in this case that is not otherwise covered by the

statute, so again, we have no need to consider that issue.

516 Twist Architecture v. Board of Architect Examiners

A.  The Practice of Architecture—the Gramor Projects

To determine whether the board’s conclusion that

respondents’ work on the Gramor projects constitutes the

practice of architecture, we apply the principles enunci-

ated in PGE v. Bureau of Labor and Industries, 317 Or 606,

610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or

160, 171-72, 206 P3d 1042 (2009). Our primary task is to

determine the meaning that the legislature most likely

intended. Gaines, 346 Or at 171.

The board takes the position that respondents’ work

on the Gramor projects constituted “the practice of archi-

tecture” because it involved “planning” and “designing.”

The gist of respondents’ position is that the statute quali-

fies those terms in a way that demonstrates that the prac-

tice of architecture does not encompass the preparation of

master plans. In particular, respondents explain that ORS

671.010(6) requires that “planning” and “designing” be done

in contemplation of erecting a building. Thus, they contend,

the practice of architecture requires that the parties reason-

ably contemplate actual construction based on documents

prepared by the putative architect, or, said another way, that

the putative architect must have prepared drawings that

are sufficiently detailed that they can be used in actual con-

struction. Respondents argue that the type of preliminary

work that they did here—planning to determine whether it

is feasible to undertake a building project—does not con-

stitute the practice of architecture. As explained below, we

conclude that the statutory text, viewed in context, does not

support respondents’ proposed limitation.

The text on which respondents rely does indeed

define the practice of architecture as “the planning, design-

ing or supervising of the erection, enlargement or alteration

of any building.” ORS 671.010(6). A “building” is defined as

“any structure consisting of foundations, floors, walls and

roof, having footings, columns, posts, girders, beams, joists,

rafters, bearing partitions, or a combination of any num-

ber of these parts.” ORS 671.010(3). Given those definitions,

we agree with respondents that the practice of architecture

requires that the planning, design, or supervision be of a

structure that the parties contemplate actually building. So,

Cite as 361 Or 507 (2017) 517

for example, artwork depicting an imaginary building that

nobody contemplates actually building would not constitute

“planning” or “designing” of the erection of a “building” as

those terms are used in ORS 671.010(6). Engaging in such

artwork would not constitute the practice of architecture,

regardless of whether it depicted a building’s structural

details such as foundations or joists.

That does not mean, however, that the practice

of architecture depends on whether buildings are, in fact,

erected. The legislature defined the practice of architecture

to encompass “planning” and “designing,” and those are

preliminary activities that do not necessarily require that

construction actually take place. Accordingly, respondents

do not contend that the practice of architecture occurs only

when planning comes to fruition; rather, they contend that,

to engage in “planning” the erection of a “building” for pur-

poses of ORS 671.010(6), a putative architect must prepare

drawings that the parties contemplate will be used, and

that can be used, in actual construction, even if that con-

struction does not actually occur. Thus, the question in this

case reduces to whether the master plans that respondents

prepared involved sufficient “planning” of the erection of

“buildings” to constitute the practice of architecture as that

term is used in ORS 671.020.

ORS chapter 671 contains contextual clues that help

us resolve that question. First, the legislature did not simply

give us a definition of what practice of architecture is, it also

told us what it is not. The legislature provided exemptions to

the statute’s licensing requirements for employees of archi-

tects, ORS 671.030(1); registered professional engineers

and their employees,4 ORS 671.030(1); and for other regu-

lated professionals involved in the construction of buildings,

ORS 671.030(2)(e), (f), and (g). The legislature exempted

individuals who make drawings or specifications for most

houses (“single family residential dwelling”) and their aux-

iliary structures or farm buildings, ORS 671.030(2)(b); for

small buildings, not exceeding a certain square footage and

4

ORS 672.060, which governs the practice of engineering, exempts the

practice of architecture from its provisions, and contains parallel language that

essentially mimics ORS 671.030 concerning the making of “plans or specifica-

tions for, or supervising the erection, enlargement or alteration of, a building.”

518 Twist Architecture v. Board of Architect Examiners

height, ORS 671.030(2)(c); and for the alteration or repair

of buildings, so long as those alterations and repairs do not

involve the “structural part” of the building, if other require-

ments are met, ORS 671.030(2)(d).

Thus, it appears that the main legislative focus was

on those who plan and design larger buildings where a sig-

nificant number of people might be expected to gather (such

as, for example, multiple-family dwellings or shopping cen-

ters). Requiring licenses for activities that could affect the

structural integrity of such buildings is consisent with the

legislature’s stated purpose to “safeguard health, safety, and

welfare.”5 Consequently, we have no doubt that the prepara-

tion of drawings that could serve as the basis for actual con-

struction constitute the practice of architecture. However,

the legislature did not necessarily intend to limit the com-

pass of ORS 671.020(1) to the preparation of such drawings.

As we will explain, two additional legislative clues indicate

that the legislature’s purpose extended beyond the prepara-

tion of such detailed drawings.

First, in ORS 671.025 the legislature sets out the

requirements that an architect must meet when preparing

“drawings and specifications” submitted to obtain a building

permit. But, as the board noted in its opinion in this case, the

legislature did not limit the “practice of architecture” to the

preparation of such “drawings and specifications,” and it did

not use those terms to describe the practice of architecture.

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.

5

That has been the stated purpose of the statute since 1935, when the legis-

lature amended ORS 671.020’s predecessor statute to provide as follows:

“In order to safeguard life, health and property and, to eliminate unnec-

essary loss and waste in this state, it shall be unlawful for any person to

practice the profession of architecture or to assume or use the title or archi-

tect, or any title, sign, card or device indicating, or tending to indicate, that

such person is practicing architecture or is an architect, or to represent in

any manner that he is an architect, without first qualifying before the board

or obtaining a certificate of registration as provided by this act.”

Or Laws 1935, ch 260, § 1.

Cite as 361 Or 507 (2017) 519

Second, the legislature’s purpose in requiring licen-

sure was not limited to safeguarding health and safety. The

legislature’s stated intent also was to “eliminate unneces-

sary loss and waste.” ORS 671.020(1). As the board’s find-

ings indicate, those who develop the large projects that are

the focus of the statute invest a significant amount of time,

effort, and money to determine where to build their projects,

and, most pertinent to our inquiry here, whether specific

properties can viably be used for the type of development

that they envision. Master plans like the ones that respon-

dents drew in this case are prepared for that purpose. They

are drawn to scale and determine, among other things, the

size, shape, and density of buildings needed; whether the

land is suitable for those buildings; and whether parking,

emergency access, and ingress and egress needs can be met.

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 requi-

site skills, and therefore required that those who engage in

such planning must be licensed as architects. We conclude

that, under the circumstances presented here, the prepara-

tion of master plans such as those prepared by respondents

constitutes the “practice of architecture” as that phrase is

defined in ORS 671.010(6).

Here, respondents were paid to plan commercial

shopping center buildings for a client who was contemplat-

ing the construction of the buildings shown in the plans.

Respondents described their services as “architectural

design” services and provided their client with master plans

that showed details such as the precise size, shape, and

placement of the buildings on a specific piece of property in

conformance with applicable laws and regulations.6 In that

circumstance, we conclude that respondents “plann[ed]”

6

We understand respondents Twist and Callison to assert that any render-

ing of a structure in master plans such as those prepared in this case is not a ren-

dering of a “building” unless the individual rendering contains a requisite quota

of structural components, e.g., foundations, floors, walls, roof, footings, columns,

etc. See, e.g., ORS 671.010(3) (defining “building” as “any structure consisting

of foundations, floors, walls and roof, having footings, columns, posts, girders,

beams, joists, rafters, bearing partitions, or a combination of any number of these

parts, with or without other parts or appurtenances thereto”).

520 Twist Architecture v. Board of Architect Examiners

“buildings” for purposes of ORS 671.010(6), and thus

engaged in the “practice of architecture” without licenses to

do so in violation of ORS 671.020(1).

B.  Representations on Plans and Website

In addition to prohibiting the unlicensed practice of

architecture, ORS 671.020(1) also prohibits one who is not

licensed to practice architecture in Oregon from using “any

title, sign, cards or device indicating or tending to indicate,

that the person is practicing architecture.” Because we have

concluded that respondents’ preparation of master plans

for Gramor constituted the “practice of architecture” under

ORS 671.020(1), respondents violated that statute when

they used their logo on those plans. That logo included the

words “Twist” and “Architecture,” indicating that respon-

dent Twist was practicing architecture in the preparation of

the plans on which the logo was used.

The remaining question is whether Callison or

Hansen also violated ORS 671.020(1) when they described

themselves on their website as “Licensed in the State of

Oregon (pending).” As noted, those statements were made

in conjunction with information about Oregon architec-

tural projects undertaken by Twist. The Court of Appeals

reasoned that that statement was “not akin to a statement

that they were presently licensed to practice architecture

in Oregon,” 276 Or App at 571 (emphasis in original), and

that that statement did not indicate or tend to indicate that

respondents were Oregon architects or practicing architec-

ture in Oregon and was not supported by substantial rea-

son, id.

One problem with that analysis, however, is that

the statutory prohibition is not against falsely claiming to

be licensed to practice architecture. Rather, it is against

We find no textual basis in the statutes for such a conclusion. Although the

“design” or “plan” in question must be for a structure that, if built, would meet

the criteria listed in ORS 671.010(3), nothing in the statute suggests that each

or every rendering of the structure must do so. There is no dispute here that the

structures contemplated by the plans, if constructed, would qualify as “buildings”

under the definition found in ORS 671.010(3). That is, respondents do not contend

that they were designing some sort of open-air structures that, when built, would

lack the structural components of a “building.” We thus reject respondents’ con-

tentions that the plans at issue were not for “buildings.”

Cite as 361 Or 507 (2017) 521

using a “device” (the website) “indicating, or tending to indi-

cate, that the person is practicing architecture” in Oregon,

if the person lacks the required credentials. (Emphasis

added.) Thus, a representation can violate the statute even

if it does not address licensure status at all; it need only

to indicate, or tend to indicate, that the person is practic-

ing architecture in Oregon. Such a representation violates

the statute, unless the person has satisfied the provisions of

ORS 671.010 through 671.220. Thus, the Court of Appeals

erroneously focused on whether the representations on the

website indicated that respondents were presently licensed

to practice architecture in Oregon. 276 Or App at 571. The

appropriate question is whether the representations indi-

cated or tended to indicate that Callison and Hansen were

practicing architecture in Oregon.

In the circumstances presented here, we conclude

that they did. Under ORS 671.065(2), in some circum-

stances, a person “may offer to render architectural services

[in Oregon] without being issued a certificate of registration

by the Board, if the architect advises the prospective client

and the Board in writing and submits an application for reg-

istration in this state.” In light of that provision, an Oregon

consumer of architectural services who sees representa-

tions by principals of an architectural firm indicating that

their licensure in Oregon is “pending,” and sees that infor-

mation presented in conjunction with details about archi-

tectural projects that the firm has undertaken in Oregon,

would have reason to conclude that principals are lawfully

providing architectural services in Oregon. When the prin-

cipals have not submitted an application for registration in

Oregon, they are not qualified to practice architecture in

Oregon and, therefore, when they make claims of pending

licensure in conjunction with advertising architectural proj-

ects that they have undertaken in Oregon, they violate ORS

671.020(1).

C.  Constitutional Concerns

Finally, we turn briefly to several constitutional

considerations raised by respondents. In his response brief,

Hansen asserts that the board’s interpretation of ORS

671.020, as applied to his master planning activities for

522 Twist Architecture v. Board of Architect Examiners

Gramor and his representations on the Twist website, raise

due process concerns under the Fourteenth Amendment to

the United States Constitution. He argues that the board’s

interpretation of the statute runs afoul of his constitutional

right to earn a living without unreasonable government

interference, citing Greene v. McElroy, 360 US 474, 79 S Ct

1400, 3 L Ed 2d 1377 (1959), and Schware v. Board of Bar

Examiners, 353 US 232, 77 S Ct 752, 1 L Ed 2d 796 (1957).

Those cases stand for the unremarkable proposition that

state licensure requirements for professions will be struck

down if they lack any rational connection to the person’s fit-

ness to actually practice the profession. To the extent that

Hansen suggests that master planning such as that done for

Gramor in this case is not related to the practice of architec-

ture, the record belies that argument; expert testimony was

presented that master planning is, in fact, taught as part

of an architect’s education and tested on licensure exam-

inations, and is an integral part of the process of building

design. We disagree that ORS 671.020’s prohibition on unli-

censed practice of architecture lacks a rational basis. As

described above, the purposes of the statute are “to safe-

guard life, health and property and to eliminate unneces-

sary loss and waste.” ORS 671.020(1). The state’s interest in

ensuring that those who plan and design buildings have the

requisite knowledge and training to ensure the buildings’

viability and structural integrity is rationally related to the

stated goals of the statute. Moreover, as discussed above,

the numerous exemptions found in ORS 671.030 ensure that

the statute is not interpreted in an overly broad manner to

apply to activities in which the state has little or no rational

interest.

In addition, all three respondents also make rather

generic arguments that the board’s interpretation of ORS

671.020 raises free speech concerns. They cite no author-

ity for their position, and we are aware of none. It is true

that false statements may be protected to some extent by

the First Amendment to the United States Constitution. See

United States v. Alvarez, 567 US 709, 132 S Ct 2537, 183 L

Ed 2d 574 (2012) (false statements may be protected, unless

they involve defamation, fraud, or some other legally cog-

nizable harm associated with the false statement). False or

Cite as 361 Or 507 (2017) 523

deceptive commercial speech, however, is a different matter.

See, e.g., Friedman v. Rogers, 440 US 1, 99 S Ct 887, 59 L

Ed 2d 100 (1976) (state may prohibit deceptive commercial

speech). As we explained above, the false statements about

pending licensure on respondents’ website, when viewed in

conjunction with information on the website about architec-

tural projects in Oregon, could mislead Oregon consumers

into believing that respondents were authorized to practice

architecture in Oregon. We reject without further discus-

sion respondents’ contentions that such speech was consti-

tutionally protected.

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.