June 8, 2017

Oregon Supreme Court cites broad statute in upholding egregious abuse of licensing power

By Anastasia P. Boden Attorney

We received an adverse ruling in our lawsuit on behalf of David Hansen, which challenged a ruling by the Oregon Board of Architects that David practiced unlicensed architecture when he created marketing drawings.  These drawings were not blueprints or plans; they were meant to help a property development company attract retailers to potential developments by showing them illustrations of what the project might look like.  They could not be used for construction.  If the developers received enough investment to move forward, they would have hired their own licensed architect to draw the actual plans for the project.

After receiving a complaint from a licensed architect, the Board fined David and his partner $10,000 each for purportedly practicing architecture without a license.  The Board contended that “anything done in contemplation of constructing a building” is the practice of architecture and requires a license.

We argued that statute required some nexus to construction, and that the Board’s interpretation was so broad that it would include a host of activity that could not be reasonably interpreted as architecture, like sketching a building on a napkin, or even painting a watercolor of one’s dreamhouse.

Citing the broad wording of the statute, the Oregon Supreme Court disagreed.  It held that, even though the drawings were not made in contemplation of constructing a specific building, the clients had contemplated constructing a building generally, and that’s good enough.

Unfortunately, this type of deferential reasoning is all too common in occupational licensing cases.  Courts across the country have relegated economic liberty to overly weak review, choosing instead to defer to the licensing bodies’ interpretation of the statute.  What the courts ignore is the fact that licensing boards often interpret their authority in ways to expand their power and to keep individuals from competing with licensees.  In fact, these boards are often staffed by members of the industry, meaning they have an incentive to deem related, but not core, services as within the statute in order to keep potential competition at bay.

The sad consequence is that industrious Americans are shut out of the workforce for reasons wholly unrelated to protecting the public.  They are denied their right to earn a living simply because the entrenched business interests do not want to compete with them.

Despite the disappointing result in this case, PLF’s economic liberty project will continue representing entrepreneurs and small-businesses in lawsuits that present the opportunity to change the tide and bring greater protection to the precious right to earn a living free of arbitrary government interference.

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