The Right to Practice

For many years, design professionals planning a kitchen or bath project would ask themselves several questions. Is my design aesthetically pleasing? Is it functional? Does it maximize the space and address all of the design challenges? Will my clients like it? Will the job be profitable?

But in recent years, an increase in legislation affecting the kitchen and bath industry means industry professionals may have to ask themselves one more question: Am I legally allowed to do this job?

It may seem outrageous that laws intended to protect the integrity of the design industry could have the potential to do the exact opposite, yet many kitchen and bath professionals believe that’s exactly what’s happening (see related Editorial).

That’s because, in recent years, factions within the interior design industry, led by the American Society of Interior Designers (ASID), have been lobbying more heavily for legislation that would establish stringent regulations for those looking to practice within the trade.

Their stated agenda is to establish standards of practice in the interest of public health, safety and welfare. As Deanna Waldron, director of government and public affairs for the Washington, DC-based ASID, says, “Without [this] legislation, there is nothing that says to the public that in order to offer this service, you need to show that you are minimally competent.”

But while this may, on the face of it, seem like a noble pursuit, many kitchen and bath professionals believe the wording of these standards of practice is so broad that there could be far-reaching – and potentially dangerous – consequences for the kitchen and bath design industry. Indeed, some of this legislation, if enacted, could forbid members of the kitchen and bath industry from calling themselves designers…or worse, prohibit them from practicing at all.

Even established kitchen and bath designers with educational and professional credentials that would protect them from such legislation could be adversely impacted by this legislation since, long term, it could cause a shortage of potential employees for kitchen and bath dealerships, according to leading experts in the kitchen and bath field.

TITLE AND PRACTICE

There are two types of design legislation: title acts and practice acts. A title act regulates who can hold a specific title, but does not prevent anyone from actually practicing. A practice act, by contrast, requires that professionals obtain a state license to perform any interior design services. Further complicating the issue is the fact that the specifics of these regulations vary state by state.

Currently, 22 states and the District of Columbia have either practice or title acts regulating the interior design industry. And many more having legislation pending (see State-by-State Guide to Design Legislation Looks at Existing and Pending Title and Practice Acts).

Since “interior design” is often defined in such a broad-based way as to encompass key kitchen and bath design functions, “practice acts,” in particular, could have a chilling effect on the lives and careers of kitchen and bath design professionals who currently practice in the trade but do not have the educational background or other specified credentials to obtain the required license.

Obtaining a license would require a designer to take exams and study at institutions mandated by ASID and other allied organizations. At this time, CKD and CBD exams are not considered a legitimate substitute, despite the fact that these are the prevailing standards of kitchen and bath design expertise.

Waldron notes: “The ASID is not opposed to the accreditation, but we are opposed to using those accreditations for license as an interior designer. If I become a licensed interior designer, I am licensed to practice interior design in a commercial high rise and a living room and everywhere in between. We believe that it is not appropriate to use an exam that tests specifically for residential design for one room to license someone to practice the entire body of knowledge of interior design.”

While some of the acts have “grandfather” provisions that allow those already practicing to bypass the legislative requirements, others do not. And, as opponents to the legislation point out, even if existing kitchen and bath designers are protected, what about the impact of such legislation on future kitchen and bath designers?

TOO MUCH LEGISLATION?

The Hackettstown, NJ-based National Kitchen and Bath Association (NKBA) feels so strongly about the dangers of such legislation that, after its strategic planning meeting this past winter, it once again allocated $500,000 to protect the rights of its members to practice their livelihood. These funds are being used to combat the legislative efforts of ASID designers and lobbyists throughout the nation to enact title acts on professional practice and who can practice.

“The definition of ‘interior designers’ is very broad based,” contends Ed Nagorsky, general counsel for the NKBA. “It encompasses all aesthetics of room design – from painting to hanging artwork. The mandate from the ASID is to obtain a practice act with a very broad definition, so as to require that all who practice within the design trades must take their exams and attend schools of their choosing.”

Waldron states: “This is not about taking people out of the market so they can’t compete. It is not about a kitchen designer versus an interior designer versus a decorator. It is about what should be done to legally protect the public to help them make the decision to hire professionals who have proven they are qualified for the services they are offering.” She adds that, because many states have residential exemptions, as well as exemptions for things that are decorative or that happen in a showroom, “to a large extent, kitchen and bath designers are not affected.”

Definitions for practice legislation vary state by state. Currently, four states have practice acts in place – Alabama, Louisiana, Washington, DC and Florida.

“In Alabama, the Act has been stayed by the Supreme Court, which deemed it unconstitutional,” Nagorsky explains.

“Louisiana’s act is based upon the Napoleanic code. Washington DC has had one since 1968 and Florida has a very broad residential exemption. No other states have adopted practice acts for interior design. The only reason they even looked into it was at the insistence of the coalitions, not because of public demand for protection.”

Washington state and Colorado have both considered it and have concluded that establishing a practice act would not provide a service to the public. In fact, they concluded, as critics of this legislation have contended, these acts may decrease competition.

“There have been no complaints via the Better Business Bureau or by any of the states’ Attorney Generals. Most states have concluded that it would be anti-competitive,” Nagorsky adds.

Right-to-practice legislation has attracted the attention of those outside the design industry, as well. In his March 22 column in the Washington Post, George F. Will notes that, in New Mexico, while anyone can work as an interior designer, it is against the law to advertise such services without obtaining certification. In fact, it is punishable by a $1,000 fine or a year in jail. This, he wrote, is advocated by a private group that administers its own examination in order to obtain the interior designer title.

Will notes that these regulations have already taken effect in Nevada. “So in Las Vegas, where almost nothing is illegal, it is illegal – unless you are licensed or employed by someone who is licensed – to move, in the role of an interior designer, any piece of furniture more than 69" tall,” he wrote.

Will’s take on this agrees with the NKBA’s stance. “Who benefits? Creating an artificial scarcity of services raises the prices of those entitled to perform those services,” comments Will.

ASID says its position has always focused on public safety and welfare. “Every decision an interior designer makes affects life safety and quality of life,” Michael Alin, executive director, ASID, notes. “Legal recognition establishes enforceable standards of minimum competency and ensures that only qualified individuals design interior spaces or represent themselves as having the qualifications to do so.”

However, one must question if requiring kitchen and bath designers who’ve spent years working in their field to take the NCIDQ exam and possibly even return to school before being allowed to continue working in their field is really making the world “safer” for consumers.

As Nagorsky says, “We do not believe that it is necessary to enact further requirements. There are more than enough governmental requirements and code requirements to protect the consumer.”

IMPACT ON EDUCATION

In addition to the impact on practicing kitchen and bath professionals, many believe this type of legislation could have a significant effect on those who aspire to practice one day. So says renowned kitchen design expert Dr. Phyllis Markussen, CKE, CBE and professor of Family Studies and Interior Design at the University of Nebraska, Kearney.

For one thing, Markussen believes that this could effectively “dumb down” the educational programs by creating too-rigid guidelines. She explains, “In academia, we advocate the benefits of a system-approached education. We try to bring in other disciplines to give students a broader, more global perspective. This legislation would narrow the approach with a single educational experience.”

The state of Nebraska does not currently have a title or practice act, but the coalition is actively working toward it, and Markussen is concerned about the impact on colleges and universities throughout the state. “If it passes, it could put a number of colleges and universities at risk. It would homogenize the educational offerings of the design curriculum. It may restrict specializations, therefore restricting the number of practicing designers. There may not be enough designers to meet the needs of the state.”

The state of Minnesota currently does have a title act that describes the provisions for those wanting to call themselves interior designers, according to Galen Jergenson, CKD, CBD of Alexandria, MN. “It really was for those designing commercial spaces over 2,022 square feet,” he says. As an instructor at Alexandria Technical College in Alexandria, MN, Jergenson is also concerned about the ramifications that a practice act will have on two-year colleges throughout the state.
The Practice Act would require designers to have a four-year degree from an [Interior Design Accreditation, formerly FIDER] accredited program,” Jergenson says. “We feel this would be discrimination against the community colleges and those who attend.”

Jergenson has been working with lobbyist Thomas Murphy in St. Paul, MN as per the Practice Act. According to Murphy, “We are now at the stage of watching two potential developments. First, we continue to work the Senate Commerce Committee chair to not grant the bill a hearing. We are monitoring House and Senate omnibus policy and finance bills to make sure it has not been, or will not be, inserted into any of those bills.”

At present, the NKBA has been very successful in raising the issue to legislatures, according to Nagorsky. “When they realize how many people this act will affect and how few the benefits will be to the public, they pull the legislation,” he says.

For key design-related bills being tracked by the NKBA, click here.
For a state-by-state guide to design legislation, click here.

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