In a rare opportunity to interpret Oregon’s statutory requirements for licensure of architects, the Oregon Supreme Court recently held that the development of master plans constitutes the “practice of architecture”—even if constructible drawings and specifications are not contemplated or produced.

The case, Twist Architecture & Design, Inc. v. Oregon Board of Architect Examiners, 361 Or 507, 395 P3d 574 (2017), stemmed from a determination by the Board of Architect Examiners (the “Board”) that Seattle based firm Twist Architecture & Design, Inc. and two of its principals who were not licensed in Oregon (collectively “Twist”) engaged in the unlawful practice of architecture and unlawfully represented themselves as architects in violation of ORS 671.020—Oregon’s statute containing the licensure requirement—when they prepared master plans for three proposed commercial developments in Oregon.

Twist had been hired by Gramor Development (“Gramor”) in 2008 to provide master planning and related design services for three different shopping center projects in the Portland suburbs. For all three projects, Twist developed master plans, site and building renderings, and schematics with various level of detail.   Several of the documents generated by Twist—including the schematics—contained a logo with the words “Twist,” “Architecture,” and “Design.” However, Twist did not produce constructible drawings or specifications, and two of the three projects were never built. Although the third project was constructed, it was built on a smaller scale and was not based on the plan developed by Twist. However, Twist featured two of the projects on its website, where it also included the statement “Licensed in the State of Oregon (pending)” on the biographical pages of the two principals involved in the Gramor projects, even though neither principal had submitted an application for registration.

After a hearing, the Board determined that Twist unlawfully engaged in the practice of architecture, unlawfully represented its principals as architects, unlawfully used the term “architecture” in the firm’s logo on the master plans, and unlawfully used the statement “Licensed in the State of Oregon (pending).”

Twist appealed the Board’s decision to the Oregon Court of Appeals, where Twist argued that the “practice of architecture,” as statutorily defined by ORS 671.010, requires that the parties reasonably contemplate actual construction based on drawings that are sufficiently detailed that they can be used in construction, and that Twist’s master plan work did not fit that definition. The Court of Appeals agreed with Twist, concluding that preparation of master plans did not constitute the practice of architecture. Essentially, the Court of Appeals determined that the “practice of architecture” requires the preparation of constructible drawings and specifications.

The Oregon Supreme Court then granted the Board’s request for review. The Court began by looking at the “practice of architecture” as that term was defined in ORS 671.010(6) at the time Twist performed the master plan work for Gramor (as noted below, the legislature made a small change to the definition in 2013):

“‘Practice of architecture’ means the planning, designing or supervising of the erection, enlargement or alteration of any building or of any appurtenance thereto other than exempted buildings.”

Observing that the “practice of architecture” necessarily required the planning, design, or supervision of a structure that the parties actually contemplate building—as opposed to artwork depicting an imaginary building that nobody contemplates building—the Court then narrowed its focus:

“[T]he 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.”

The Court ultimately concluded that the master plans prepared by Twist involved the requisite level of “planning” to fall within the statutory definition of the “practice of architecture,” even though buildings could not be constructed based on those plans alone. The Court based its conclusion on two specific findings.

First, the Court observed that ORS 671.025 sets forth specific requirements that an architect must meet when preparing “drawings and specifications.”   Yet the legislature did not use the terms “drawings and specifications” to define the “practice of architecture” in ORS 671.010. The Court reasoned that by not including the terms “drawings and specifications” within the definition of the “practice of architecture” the legislature must have intended the “practice of architecture” to have a broader meaning.

Second, the Court also observed that one of the stated purposes of the licensure requirement in ORS 671.020 was to “eliminate unnecessary loss and waste” and that both loss and waste could occur if persons untrained in master planning—a subject tested on the Board’s licensure exam—were permitted to provide those services without the requisite skills.

Thus, the Court determined that Twist’s development of the master plans—which “showed details such as the precise size, shape, and placement of the buildings on a specific piece of property in conformance with applicable law and regulations”—constituted the “practice of architecture” as that term was defined in ORS 671.010. As a result, the Court further concluded that Twist and its principals violated ORS 671.020 by not satisfying the registration requirement and by describing the Twist principals as “Licensed in the State of Oregon (pending).”

The most obvious impact of the Court’s decision is that master planning services like those provided by Twist may only be performed by architects who satisfy the statutory registration requirement—even if those services do not lead to constructible drawings and specifications. This has potential ramifications for out-of-state architects who wish to perform work for Oregon clients. Luckily for them, ORS 671.065 provides a relatively simple mechanism for architects registered elsewhere to obtain a certificate of registration and even allows them to offer architectural services in Oregon while an application is pending. Twist’s plight may have been different if it had followed the letter of that statute.

As noted above, the legislature made a small change to the statutory definition of the “practice of architecture” in 2013—in which it replaced the word “supervising” with “observing”—as part of a larger set of revisions to the licensure requirements. Thus, the amended definition—which was also moved from ORS 671.010(6) to ORS 671.010(7)—states:

“‘Practice of architecture’ means the planning, designing or observing of the erection, enlargement or alteration of any building or of any appurtenance thereto other than exempted buildings.”

(emphasis added). Though the Oregon Supreme Court’s analysis in Twist focused on the pre-2013 definition, the 2013 amendment does not appear to change the definition in a way that would have significantly altered the Court’s decision.

Nonetheless, the important takeaway is that architects seeking to offer services in Oregon would be well served to investigate whether they are required to satisfy the registration requirement—regardless of whether those services include the production of constructible drawings and specifications. Among other things, ORS 671.220 authorizes the Board to impose civil penalties against individuals who violate the registration requirement.   That statute also requires that any person or firm that engages in the practice of architecture establish that it was properly registered as a condition of maintaining a court proceeding related to those services.