Florida is ground zero in the nationwide battle to cartelize the interior design industry.
A small group of well-funded industry insiders led by the American Society of Interior Designers has been relentless in its pursuit of ever more restrictive laws. Studies have shown that interior design regulations result in higher prices, less variety, and fewer employment opportunities, especially for minorities and older mid-career switchers.
On May 26, 2009, the Institute for Justice joined with three interior designers—Eva Locke, Pat Levenson and Barbara Gardner—and the National Federation of Independent Business to file a lawsuit in federal court in Tallahassee challenging Florida’s interior design law.
Florida’s law is a blatant abuse of government power that stifles speech and entrepreneurship to protect a favored industry from honest competition. The trial court struck down a portion of the law that prohibited unlicensed interior designers from truthfully advertising services they were lawfully permitted to perform. Unfortunately, the trial court upheld the law’s limitations on who could practice nonresidential interior design, but did so only after interpreting the law to cover a very narrow range of prohibited activities. The Eleventh U.S. Circuit Court of Appeals affirmed that ruling and, on January 9, 2012, the U.S. Supreme Court refused to review the case. As a result, the law remains in place, but has been severely weakened.
Institute for Justice Complaint
BOAID Answer to Plaintiff's complaint
Preliminary Injunction Order
Defendants' Motion for Summary Judgment
Plaintiffs' Motion for Summary Judgment
Defendants' Response to Plaintiffs' Motion for Summary Judgment
Plaintiffs' Reply to Defendants' Response to Plaintiffs' Motion for Summary Judgment
Defendants' Reply to Plaintiffs' Response to Defendants' Motion for Summary Judgment
Plaintiffs' Response to Defendants' Motion for Summary Judgment
Appellants' Opening Brief
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With America mired in a recession and the economy in shambles, the last thing the government should be doing is discouraging entrepreneurship and driving people out of business. But that is precisely what the state is doing in Florida’s interior design industry and all at the behest of an industry cartel whose prime objective is to legislate its competitors out of business.
Florida is one of only three states that dictates who may work as an interior designer and who may not. Thus, in the Sunshine State—unlike New York, California, Texas, Georgia, and nearly every other state in the country—government bureaucrats, not consumers, decide who is good enough to perform interior design work.
Florida law defines interior design as “designs, consultations, studies, drawings, specifications, and administration of construction contracts relating to nonstructural interior elements of a building or structure.” 1 Although “elements” is not defined, it is widely understood to include essentially anything inside the four walls of a building such as furniture, fixtures, flooring and drapes—even pictures on the wall. Florida requires a license to perform interior design work (at least in commercial settings—residences are exempted), and it is a crime punishable by up to one year in jail and $1000 in fines to perform interior design services or to advertise oneself as an interior designer without government authorization. 2
Fortunately, the Constitution does not permit the government to censor truthful commercial speech or exclude people from occupations simply because they refuse to jump through an arbitrary set of hoops—especially when those hoops were created at the behest of a special interest group seeking government protection from fair competition.
Evolution of a Cartel in the Sunshine State
America has long recognized that citizens have the right to earn an honest living free from excessive or unreasonable government interference. 3 At the same time, interest groups understand very well that one of the most effective ways to suppress competition is to persuade legislators to enact arbitrary and unreasonable occupational licensing laws. The cartelization of Florida’s interior design industry is a perfect example.
The driving force behind interior design regulation is a group called the American Society of Interior Designers (ASID). Working with local industry groups, ASID persuaded the Florida legislature in 1988 to adopt a so-called “title act” in Florida, which left people free to practice interior design but required a government license to use the terms “interior design” or “interior designer.” Then in 1994, using a strategic lobbying plan—documented in a study called Designing Cartels: How Industry Insiders Cut Out Competition—ASID expanded the law into a full-blown practice act, making it a crime to perform interior design work in Florida without a license. 4 And with that, Florida became the first state in the country to regulate the practice of interior design. 5
As part of ASID’s competition-suppressing strategy, Florida’s interior design law makes getting an interior design license incredibly expensive and time-consuming. For example, state law requires applicants to have six years of education and experience, including graduating from a state-approved interior design program and completing an apprenticeship under a state-licensed interior designer. The applicant must then pass a state-mandated licensing examination administered by the National Council for Interior Design Qualification (NCIDQ), 6 a private testing body created by ASID’s precursor organizations, the American Institute of Interior Designers and the National Society of Interior Designers. 7
The sole purpose of these licensing restrictions is to drive up profits for the cartel members by putting competitors out of work.
Of course, the restrictions only produce windfalls for the interior design cartel if they are vigorously enforced. In 2002, amidst complaints from certain industry members about lax enforcement, the State Board of Architecture and Interior Design took the extraordinary step of farming out investigation and enforcement services to a private law firm in Tallahassee called Smith, Thompson, Shaw & Manausa. 8 Every year, the Smith Thompson firm initiates proceedings against hundreds of citizens and businesses, both in Florida and outside the state, in most cases for nothing more than simply using the terms “interior design,” “interior designer,” and even “space planning” without the State Board’s permission.
This campaign of censorship and intimidation is outrageous for two reasons. First, it is solely about inflating industry profits, not protecting public health and safety. There is not a shred of evidence that the unlicensed practice of interior design poses any genuine safety risks, and the State Board certainly did not step up enforcement efforts because of complaints from consumers.
Second, Florida’s interior design law is so sweeping that it criminalizes a wide variety of routine business activities that are not the practice of interior design and that the government has no legitimate authority to regulate. For example, the Florida legislature in 1981 created a tax exempt, non-profit corporation called PRIDE Enterprises to provide vocational training and job skills to prison inmates. 9 Among the things PRIDE inmates produce is office furniture, and the company offers “space planning services” at $50 per hour. 10 But it is plainly illegal for PRIDE both to offer and to perform “space planning services” in Florida because it does not have a “certificate of authorization” from the State Board of Architects and Interior Design, nor does it seem likely that the prisoners performing the “space planning” work are state-licensed interior designers, as required by law. 11 And that is merely one example; as a simple Google search will show, there are dozens of other companies offering “space planning” and other forbidden services in Florida without interior design licenses.
Between its absurdly overbroad definition of “interior design” and bringing in a private law firm to help enforce Florida’s interior design law, the state has created an occupational licensing nightmare that is anti-business, anti-entrepreneur and anti-consumer. Indeed, a recent study by two economics professors at Kenyon College entitled Designed to Exclude 12 shows that interior design laws reduce the number of working interior designers, increase prices for consumers, and, most insidiously, disproportionately exclude minorities and older, mid-career-switchers from the occupation. 13
Given that ASID has spent decades pumping millions of dollars into its national lobbying campaign, the real question is why more states do not regulate the practice of interior design. The answer lies in ASID’s consistent failure to provide even a shred of evidence in support of its extravagant claim that “every decision an interior designer makes affects life safety and quality of life.” 14 To the contrary, every credible investigation—and there have been many—has concluded that the unlicensed practice of interior design presents no bona fide concerns for public health, safety or welfare. For example, in October 2000, Colorado’s Department of Regulatory Agencies concluded that, despite being given the opportunity, proponents of interior design regulation submitted no proof “that harm to the public has occurred, or that the public was endangered . . . from the unregulated practice of interior design” 15 and concluded that it was “difficult to see a benefit to the public in regulating interior designers.” 16 At least eight other states have reached the same conclusion. 17
The Plaintiffs—Forced to Work in a State of Fear
Eva Locke is an interior designer from Gulf Stream, Florida who would like to offer both residential and commercial interior design services in Florida. Her family came to the United States from Cuba when she was just three years old. They left behind everything they owned to start a new life in America, which Eva has always considered the Land of Opportunity—a place where those who work hard to achieve their goals can not only survive but flourish, as her family eventually did.
After raising a family, Eva decided to follow her passion for design by enrolling in the two-year interior design program at Palm Beach Community College. After completing her degree, Eva apprenticed for a licensed interior designer for eighteen months and had planned to take the state-mandated NCIDQ exam. But her apprenticeship was a terrible experience, making her feel like an “indentured servant” and offering virtually no useful training or experience in return.
Pat Levenson, from Lake Worth, Fla., was a classmate of Eva Locke’s in the interior design program at Palm Beach Community College. Pat first attended Palm Beach Community College in pursuit of a computer science degree, which she obtained in 1991. Pat decided to supplement her expertise in computer-aided design (“CAD”) and knack for technical drawing with an interior design degree and begin providing full service interior design services in Florida. But she cannot afford to spend four years making peanuts as a glorified assistant for a state-licensed designer, nor can she properly promote her business when the state makes it a crime for her to describe herself, accurately, as an “interior designer” and to tell the world, again accurately, that she offers “space planning” services—both of which are perfectly legal for nonlicensees to do in residential settings.
Barbara Vanderkolk Gardner is another victim of Florida’s crusade against unlicensed interior designers. Barbara has a thriving interior design business based in Princeton, N.J., and clients in several states, including Florida. She recently received a cease-and-desist order from the State Board of Architecture and Interior Design demanding that she immediately stop offering interior design services in Florida and “delete all references to such services” from her website, even though again, it is perfectly legal for her to provide residential interior design services in Florida without a license, which is precisely what she does.
The National Federation of Independent Business (NFIB) is the nation’s leading small business association, with offices in Washington, D.C. and all 50 state capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB’s mission is to promote and protect the right of its members to own, operate, and grow their businesses. NFIB represents approximately 350,000 member businesses nationwide, including 11,000 in Florida.
NFIB and its affected members are extremely concerned about the existence, scope, and enforcement of Florida’s interior design law. The statute’s incredibly broad definition of “interior design” encompasses a wide variety of services routinely offered by NFIB members who are not interior designers and neither intend nor wish to provide interior design services. This would include, for example, office furniture retailers and wholesalers; food service equipment suppliers; retail business consultants and even commercial art consultants.
Florida’s interior design law is riddled with constitutional defects. Perhaps most glaring is how the law forbids people who lawfully perform residential interior design services, for which no license is required, from using such terms as “interior design,” “interior designer,” and “space planning” that most accurately describe services they lawfully perform. That is both a forbidden prior restraint and unconstitutional censorship of truthful commercial speech under the First Amendment.
Florida’s law also violates the basic right all Americans have under the Fourteenth Amendment to earn a living in the occupation of their choice free from arbitrary or unreasonable government interference. The Constitution also forbids states from unduly burdening or discriminating against interstate commerce, which Florida’s interior design law plainly does by discouraging nonresident interior designers and other businesses and entrepreneurs from working in Florida. Finally, the State Board’s decision to outsource investigation and enforcement of the interior design law to a private law firm with minimal oversight has led to a variety of problems including apparent conflicts of interest, misapplication of the law, and skewed enforcement priorities that violate citizens’ right to procedural due process.
IJ: A History of Protecting Free Speech & Economic Liberty
Founded in 1991, the Institute for Justice (IJ) has represented entrepreneurs nationwide who successfully fought arbitrary government regulation, opening up long-closed markets and securing free speech rights. These include:
Franzoy v. Templeman, et al.—The Institute for Justice represented two interior designers in challenging New Mexico’s titling law, protecting freedom of speech. Rather than attempt to defend its blatantly unconstitutional speech restrictions, the New Mexico Interior Design Board chose to seek an amendment to the law through the legislative process, which the Governor signed in April 2007.
Swedenburg v. Kelly 18 —Representing Virginia and California vintners as well as New York wine consumers, the Institute for Justice persuaded the U.S. Supreme Court to declare unconstitutional New York State’s laws that barred the interstate direct shipment of wine to New York consumers. IJ also persuaded the 2nd U.S. Circuit of Court of Appeals to enforce the First Amendment by striking down a prohibition on advertisements and solicitation for alcoholic beverages by anyone other than licensed retailers.
Taucher v. Born 19 —The Institute for Justice persuaded the U.S. District Court for the District of Columbia to enforce the First Amendment by striking down a regulation issued by the Commodity Futures Trading Commission that would have required publishers of financial newsletters and Internet websites to register as commodity trading advisors.
Crockett v. Minnesota Department of Public Safety—The Institute for Justice Minnesota Chapter entered into a consent judgment with the U.S. District Court for the State of Minnesota that dictated the state could not constitutionally enforce a law that forbade wineries across the country from accepting online orders from Minnesotans. The state also conceded that it could not constitutionally prohibit wineries from truthfully advertising or soliciting the direct sale and shipment of wine, and that it could not constitutionally discriminate between in-state and out-of-state wineries (or between wineries and liquor stores) when they exercise their First Amendment rights to communicate with Minnesota consumers.
ForSaleByOwner.com Corp. v. Zinnemann 20 —The Institute for Justice persuaded the U.S. District Court for the Eastern District of California to enforce the First Amendment and strike down the State of California’s attempt to impose real estate broker licensing requirements on an informational website.
Craigmiles v. Giles 21 —This IJ suit led a federal court to strike down Tennessee’s casket-sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the U.S. 6th Circuit Court of Appeals and not appealed. This marked the first federal appeals court victory for economic liberty since the New Deal.
Clutter v. Transportation Services Authority—In 2001, IJ defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.
Ricketts v. City of New York—In 1999, IJ helped commuter vans fight a public bus monopoly that would not allow vans to provide their service in underserved metropolitan neighborhoods in New York City.
Jones v. Temmer—In 1995, IJ helped three entrepreneurs overcome Colorado’s protectionist taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ also helped break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.
Uqdah v. D.C. Board of Cosmetology—In 1993, IJ’s work in court and the court of public opinion led the District of Columbia to eliminate a Jim Crow-era licensing law against African hairbraiders. IJ has since successfully represented African hairbraiders nationwide.
The Litigation Team
The lead attorney in this case is Institute for Justice Senior Attorney Clark Neily, who litigates First Amendment, economic liberty and school choice cases throughout the nation. He will be joined by Jennifer Perkins, a staff attorney at the Institute for Justice’s Arizona Chapter in Phoenix, Arizona. Together, Neily and Perkins have battled the interior design cartel to a standstill in several cases around the country during the past three years. They will be joined by local counsel is Daniel Woodring, a sole practitioner in Tallahassee.
For more information contact:
Assist. Director of Communications
Institute for Justice
901 N. Glebe Rd., Suite 900
Arlington, VA 22203
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