Louisiana Florists (first challenge)

Introduction

What does it take to be a florist? A love of flowers, an eye for beauty, a spark of creativity. And, in Louisiana, the government’s permission.

Government permission? Yes. Alone among all the states, Louisiana says bureaucrats, not customers, should decide who’s good enough to make a living arranging and selling flowers and who isn’t.

Worse yet, in order to get that government permission, would-be florists must pass a ridiculously subjective licensing exam that is graded by the very state-licensed florists with whom they hope to compete. Small wonder the pass rate on the exam is well below 50 percent, and small wonder that even talented, highly experienced florists who come to Louisiana from other states are often unable to pass the exam, even after multiple attempts.

Sandy Meadows, Shamille Peters and Barbara Peacock are all very good at arranging flowers, and they would all like to work as florists. But because none of them has been able to pass the state-mandated licensing exam, they have had to put their dreams aside and settle for other pursuits.

On December 18, 2003, the Institute for Justice filed a civil rights lawsuit in the U.S. District Court for the Middle District of Louisiana against the Louisiana Horticulture Commission seeking to have the State’s anti-competitive, anti-consumer florist licensing law declared unconstitutional.  On behalf of Meadows, Peters, Peacock and other would-be florists in Louisiana, Institute lawyers will argue there is no legitimate justification for state laws that exclude people from harmless occupations like floristry on the grounds that they supposedly lack the qualifications or are not talented enough to pursue that vocation.  Among our sacred rights as American citizens is the ability to choose our own livelihood without first having to seek the government’s permission.  And even then, regulation of our livelihoods should be limited to only those restrictions that protect public health and welfare.  By presuming to determine who is good enough to be a florist and who is not, Louisiana’s florist licensing law tramples that most basic freedom.

Unfortunately, anti-competitive regulatory schemes like this one are not unique. More than 500 occupations—approximately 10 percent of all jobs in the United States—require that individuals have permission from the state, in the form of a license, before they can pursue their chosen occupation. ¹ For many of these occupations, from shorthand court reporter to fence installer to florist, the rationale for licensing is non-existent. This lawsuit is part of a broader effort to open up opportunities for entrepreneurs facing illegitimate conditions of entry in other fields as well.

In challenging Louisiana’s floral cartel, this lawsuit seeks to establish constitutional limits on government’s power to condition entry into a chosen occupation. That power must be limited to enacting laws that actually advance bona fide public purposes such as protecting health and safety or preventing consumer fraud. Erecting protectionist barriers on behalf of special interests is not a legitimate government purpose.

Floristry in America: Big Business

According to the Society of American Florists, the floral industry is big business, racking up an estimated $19 billion in sales in 2002. ² The Internet accounted for nearly $1 billion of those sales, with about 1.5 percent of all online spending going to flowers. ³ There are approximately 26,200 retail florist shops in America and another 23,000 supermarkets selling flowers. ⁴ In 1997, the last year for which census data are available, there were approximately 51,000 retail florists in the country ⁵ and according to the Bureau of Labor Statistics, employment for floral designers is expected to grow faster than the average for all occupations through 2010. ⁶ As plaintiff and would-be florist Barbara Peacock acknowledges, floristry is not a high-paying job—annual pay averages $18,360 a year ⁷ —but the work is, for most florists, extremely satisfying.

Regulation of Louisiana’s Floral-Related Occupations

Louisiana has been licensing retail florists since 1939. ⁸ It appears that Louisiana is the only state in the nation that imposes any type of testing or credentialing requirement for people who simply wish to earn a living arranging and selling flowers. “Cut flower dealers,” who sell cut flowers “either singly or in bunches,” are also regulated by the State of Louisiana, but they are not required to pass any sort of exam or meet any other credentialing requirement. ⁹ Cut flower dealers may not sell two different kinds of flowers together in the same bunch, nor may they place flowers in a vase or other container, because that would constitute flower arranging, which only licensed retail florists may do. Also, cut flower dealers may not sell flowers within three hundred feet of a retail florist establishment. ¹⁰ People who sell floral designs made from dried plants or artificial materials are not required to have any type of license. ¹¹

Florists are regulated by the Louisiana Horticulture Commission, which also oversees cut flower dealers, horticulturists (who sell, lease and “recommend and execute measures for the maintenance of nursery stock”), nursery stock dealers, landscape architects, landscape contractors and utility arborists. ¹² The Commission is made up of three public officials (the Commissioner of Agriculture, the Assistant Commissioner of Agricultural and Environmental Sciences, and the Director of the Louisiana Cooperative Extension Service) and one representative from each of ten different horticulture-related occupations, including retail floristry. ¹³

The Licensing Exam

The state-mandated florist licensing exam is offered four times a year, usually in Baton Rouge. The exam costs $150 to take and it consists of two parts: a one-hour written test and a four-hour practical test. ¹⁴ The written exam covers such topics as design principles, color schemes, flower and foliage types, plant care, and the mechanics of flower arranging. When a individuals signs up to take the exam, the Horticulture Commission provides them with a handbook that contains some but not all of the information on which they will be tested. ¹⁵

The contents the handbook indicate what an artistic and therefore highly subjective field floristry is. For example, the handbook states that the “principles of design” are balance, scale, harmony, focal point, accent, rhythm, repetition and unity. ¹⁶ For someone whose entire livelihood depends on understanding exactly what the Commission means by those terms, their definitions leave much to be desired. Thus, “harmony,” according to the Commission, “occurs when all components are in agreement with each other. Textures of material, containers, foliage and flowers should all blend together.” ¹⁷ Meanwhile, “unity,” according to the handbook, “refers to the fact that the arrangement must be a complete unit. All parts must be related and unified so that the whole composition will be of good design.” ¹⁸

Notice the last phrase—”so that the whole composition will be of good design.” How can anyone presume to make such a subjective judgment? And who should have that power when another person’s future livelihood is on the line? To make matters worse, Louisiana gives that power to the would-be florist’s future competitors—licensed florists—who sit in judgment of the very people who wish to compete against them. ¹⁹

Many of the criteria used to evaluate an applicant’s work are utterly subjective. For example, judges are asked to determine, on a scale of 1 to 5 (or 1 to 10, etc.), whether the applicant’s arrangements have the “proper focal point,” whether the flowers are “spaced effectively,” whether the arrangement is “in proportion” to its container, and even whether the flowers and greenery have been “picked properly.” ²⁰ With such inherently subjective criteria being graded by one’s future competitors, it’s no wonder fewer than 50 percent of people pass the licensing test. According to the Horticulture Commission, pass rates for the practical exam for the past several years are as follows: 2000—40%; 2001—37%; 2002—43%; 2003—46% (based on two exams so far). ²¹

Arranging flowers is a creative, artistic process in which beauty is in the eye of the beholder. What some people find beautiful, others will find repugnant. An avant-garde’s cutting-edge design may be a traditionalist’s abomination. But that is precisely how art stays fresh—by constantly experimenting, reinventing and transforming itself. And artistic vocations, like flower arranging, or painting, or photography or even writing, must be allowed to do the same—not stifled by state-dictated orthodoxy.

What Florists Think of the Licensing Law

Many florists in Louisiana, both licensed and unlicensed, have nothing but scorn for the State’s licensing requirements.  Just ask Mary Dark, a very experienced licensed floral designer of 30 years. Mary operates the New Wine Floral Design School in Shreveport.  Among the courses she teaches is Cram for the Exam, a 35-hour class that helps teach students how to pass the state licensing exam, which, according to Dark, requires applicants to perform techniques and demonstrate skills that have very little relevance to modern floral design.  Ms. Dark laments the fact that for many students it comes down to a question of money. Often students coming to her school must choose between taking a course that will teach them what is on the state-mandated licensing exam—but very little about getting them ready to go to work as an actual florist—or a course that will teach them what they really need to know in order to work as a florist in today’s market.  “This is a real Catch-22 situation,” said Dark, “I find the more floral design experience a student has the harder it is for that person to pass the State test. On the other hand, when a less experienced person passes the state licensing exam that certainly doesn’t mean they are ready to walk into a flower shop and go to work—far from it.”

With money to be made from teaching test preparation classes, one might think Dark would be the first to defend the licensing scheme.  Hardly.  According to her, “The test proves nothing if you pass, other than you survived the State’s hazing process.” In fact, says Dark, “We desperately need new floral designers for the marketplace.  I get calls constantly with florists needing trained designers. Unfortunately, people are humiliated when they don’t pass the test and many can’t find the money to keep taking the test over and over again.  People simply give up even though they are desperately needed in today’s floral industry.”

Raw score sheets obtained from a florist who recently passed the licensing exam on her fifth attempt show the test is graded in a haphazard, seemingly arbitrary fashion. For example, when the florist (who wishes to remain anonymous for fear of retaliation) once took the test, the practical portion of her exam was graded by five different judges. On her first arrangement, a wedding design, the judges had widely differing opinions about whether she wired the flowers properly. On a scale of 1 to 10, one judge gave her a perfect ten, another judge gave her a five, and the three remaining judges gave her a zero. There was similar disagreement about whether she had used the correct size of wire on her greenery: three judges gave her a perfect five out of five, the other two gave her zeroes. ²² This kind of disparity appears to be more of a pattern than a series of isolated instances. In short, the grading of the practical portion of the florist exam is often so haphazard that judges might as well be assigning scores at random. No wonder even many licensed florists think the state-mandated licensing test serves no legitimate purpose whatsoever.

The Plaintiffs

Sandy Meadows moved from Monroe, La., to Baton Rouge in 2000, shortly after losing her husband. While living in Monroe, she worked at Wal-Mart, where, as she says, she “did everything but cut meat and change tires.” But the job she liked best, and the one she came to specialize in, was working in the floral department, where she created arrangements, tended the flowers, and assisted customers. Sandy has nine years of experience as a florist, and she is justifiably proud of her skills. But that counts for nothing with the bureaucrats at the Horticulture Commission, who will not give her a license because she has been unable to pass the ridiculously subjective, totally outdated, and arbitrarily graded state licensing exam. As a result, Sandy, who has worked at several Albertson’s stores in Baton Rouge, may only work as a “floral clerk,” not a full-fledged florist. This means that any store where she works must also employ a full-time state-licensed florist in its floral department, which is not always economically feasible.

Underscoring the absurdity of Louisiana’s florist licensing law is the fact that Albertson’s has actually promoted Sandy to “floral supervisor,” meaning she is responsible for every facet of the floral department’s operation, from ordering new stock, to projecting sales, to budgeting, to overseeing the day-to-day operation of the department. Another absurdity is that, according to Horticulture Commission regulations, a shop that loses its licensed florist may continue to operate for up to 90 days with no state-licensed florist on the premises. ²³ If it’s so important to have a licensed florist around, why does the Commission let stores operate for months at a time without one?

Sandy’s work is so well-respected that when another Albertson’s in the Baton Rouge area loses its licensed florist, the store manager often asks for her specifically to come over and run the floral department while the store looks for a replacement florist. Sandy is frustrated by Louisiana’s florist licensing scheme in which her nine years of hands-on experience and her ability to single-handedly run the entire floral department of a large grocery store count for nothing. She has taken the state-mandated licensing exam three times and she believes the test is utterly unfair. Not only is it hopelessly subjective, but the actual skills that would-be florists are required to demonstrate in order to pass the test are totally antiquated, having little if any connection to the techniques florists actually use in real life.

Several months ago, Sandy was working in an Albertson’s that had lost its licensed florist and used up its 90-day grace period. An inspector from the Louisiana Horticulture Commission showed up at the store, advised Sandy she was in violation of the state licensing law, and told her that if she would throw away the seven floral designs she had spent the morning putting together, then he would not issue her a $250 citation for practicing floristry without a license. Sandy says she is tired of being “jerked around” by the system and lives in constant fear that if the store where she works cannot afford to employ two people in its floral department—a licensed florist and a floral clerk—she will be the one who is let go because she has no license.

Shamille Peters lived in Baton Rouge before moving to New Orleans with her husband in 2000. Shamille worked for Albertson’s stores for almost three years, starting as a cashier and then moving into the floral department after hurting her hand 1996. Although she had no experience arranging flowers, she quickly learned the necessary skills and discovered that she had a flair for the work. Shamille thrived in her new job, and soon she was running the store’s floral shop by herself whenever there was no licensed florist on duty.

To hone her skills and—she hoped—to increase her chance of passing the state licensing exam, Shamille took two 18-hour floral design courses at Delgado Community College. She has also handled the floral arrangements at the weddings of friends and a cousin in Houston, and for her own wedding as well. Unfortunately, neither Shamille’s natural talent, nor her years of experience, nor the floral design courses she took have been of much help in passing Louisiana’s licensing exam: Shamille has flunked the test five times since she first took it in 1997.

Ask anyone whose opinion really matters whether Shamille has the skills and ability to be a florist—her former supervisors and coworkers at Albertson’s, her happy customers, the people whose weddings she has handled—and they will tell you she is a wonderfully talented woman who loves designing floral arrangements. But ask the bureaucrats at the Louisiana Horticulture Commission whether she should be allowed into the select clique of state-licensed florists, and they will say, “Absolutely not.” As a result, Shamille has had to give up her dream of running her own floral business, and she has actually passed up opportunities to provide floral arrangements for banquets and other functions in New Orleans.

Today, Shamille works in the admitting department of the Tulane University Hospital & Clinic. It’s a job, but it’s not her passion.

Barbara Peacock grew up in the small town of Hall Summit, south of Shreveport. Her mother grew flowers behind their house, and together they would make all the floral arrangements for their church with the flowers they brought from home. Barbara lives in Shreveport now and she has worked in a number of fields, including real estate and insurance. But what she really dreams of doing is opening up a small wedding chapel where she could host showers and smaller weddings. She even found the perfect spot for her future business, and she made arrangements to rent the space. Because flowers are integral to that business, however, and because she could not afford to keep a full-time florist on her payroll, Barbara knew she would need to become licensed herself before she could realize her dream. (Incredibly, when she checked out the applicable regulations, Barbara discovered that it would be far easier for her to obtain all the necessary permits to prepare and serve food at her wedding chapel than it would be for her to get a florist license.)

Like Shamille, Barbara signed up for classes at a local community college. Three nights a week for nine weeks, she studied floral design—and not just floral design, but an entire curriculum devoted to teaching would-be florists how to pass the state licensing exam. Barbara studied hard and she practiced on her own with real flowers, trying to get the hang of the antiquated and often irrelevant techniques upon which she knew she would be tested.

With her months of hard work and preparation, Barbara thought she was ready for anything the State could throw at her on the licensing exam. So she was mortified when she learned that she had failed it; in fact, she was so embarrassed, she didn’t want to talk to anyone about it. Unwilling to be discouraged, she took another floral design class, this one with Mary Dark, a highly experienced florist, teacher, and occasional exam judge. When she failed the exam for the second time, Barbara finally had to admit to herself that her skill at arranging flowers had nothing to do with her score on the exam. Knowing she had done her level best on the second test, Barbara reluctantly concluded that she would never pass the licensing exam and gave up her dream of opening her own wedding chapel.

The Importance of Economic Liberty

After the Civil War, newly emancipated slaves counted economic liberty as among the most cherished of their new civil rights. To protect entrenched white businessmen from competition, however, Southern governments soon suppressed economic opportunities for their newest citizens by heavily regulating entry into trades and businesses. The national government moved quickly to curtail these abuses by passing first the Civil Rights Act of 1866 and then the Fourteenth Amendment, both of which sought to protect the economic liberty of all Americans among the “privileges or immunities of citizenship” that states were prohibited from violating.

But in the 1873 Slaughter-House Cases, which arose out of a Louisiana law that created a monopoly in the butcher industry, a sharply divided U.S. Supreme Court effectively read the Privileges or Immunities Clause out of the Constitution by a 5-4 vote. That decision gave states a virtual carte blanche to enact shameful Jim Crow-era laws that restricted economic opportunities for black Americans. But states soon seized on this unchecked power to use regulation to protect all sorts of entrenched interests. Relying on Slaughter-House, states continue to regulate with impunity entry into trades and professions. These onerous restrictions often far exceed what is actually necessary to protect public health and safety, thus revealing their real purposes—the protection of cartels.

After almost 130 years of ignoring the Privileges or Immunities Clause, however, the U.S. Supreme Court breathed new life back into this vital constitutional provision in May of 1999. In Saenz v. Roe, the Court used the clause to strike down a California law that limited welfare benefits for new residents. ²⁴ Although Saenz dealt specifically with the right to travel as being protected by the Privileges or Immunities Clause, the Court’s use of the clause and the language of the decision cracks open the door for its reestablishment as the primary constitutional protection for economic liberty, as it was originally intended to be. ²⁵

This challenge to Louisiana’s florist licensing laws presents the perfect opportunity after Saenz to ask courts to examine the full scope of the Privileges or Immunities Clause. The Institute for Justice’s aim is to restore the Privileges or Immunities Clause to its proper role as the foremost constitutional protection for the right to earn an honest living.

Legal Claims

This lawsuit was filed by the Institute for Justice in the U.S. District Court for the Middle District of Louisiana in Baton Rouge on December 18, 2003. It goes to the very core of a cherished constitutional value: the right of individuals to earn an honest living. The plaintiffs in this case ask for nothing more than the opportunity to make their livelihood arranging and selling flowers without interference from Louisiana’s oppressive licensing requirements.

The U.S. Constitution prevents the government from arbitrarily interfering with citizens’ ability to go about their lives and earn honest livings in their chosen occupations. Under the Due Process, Equal Protection, and Privileges or Immunities Clauses of the Fourteenth Amendment, the government may only restrict a person’s right to pursue his or her chosen livelihood when there is a “rational basis” for that restriction. In order to establish a rational basis, the government must show that there is a reasonable fit between the government-imposed restrictions in question and a legitimate public purpose. Creating insurmountable barriers to entry into a given profession in order to promote the economic interests of a favored group, such as state-licensed florists, is not a legitimate public purpose.

The plaintiffs have asked the federal district court to declare that, under the U.S. Constitution, Louisiana’s protectionist licensing laws violate their due process right to earn an honest living, their right to equal protection, and the right to economic liberty protected by the Privileges or Immunities Clause.

Litigation Team

The lead attorney in this case for the Institute for Justice is Senior Attorney Clark Neily, who litigates economic liberty cases nationwide and who currently represents independent casket retailers in Oklahoma in their struggle for economic liberty. Prior to joining the Institute, Neily was an associate in the trial department of the Dallas-based law firm Thompson & Knight. He will be joined by William H. Mellor, president and general counsel of the Institute for Justice, who successfully challenged Tennessee’s casket retailing monopoly, New York City’s ban on commuter vans, and other government-created barriers to entrepreneurship. Assisting the Institute for Justice as able local counsel is Scott Wilson of Baton Rouge.

Founded in 1991, the Institute for Justice has successfully represented entrepreneurs nationwide who fought arbitrary government regulation.

• Wexler v. City of New Orleans

In June 2003, IJ won an important First Amendment victory on behalf of book vendors in New Orleans when a federal court struck down as unconstitutional the City of New Orleans’ blanket ban on selling books on the street.

• Craigmiles v. Giles

The Institute for Justice suit led a federal court to strike down Tennessee’s casket sales licensing scheme as unconstitutional, a decision that was upheld unanimously by the 6th Circuit Court of Appeals and not appealed. This marked the first federal appeals court victory for economic liberty since the New Deal.

• Swedenburg v. Kelly

IJ’s suit on behalf of Virginia and California vintners as well as New York wine consumers led a federal judge to declare unconstitutional New York State’s laws that barred the interstate direct shipment of wine to New York consumers.

• Cornwell v. California Board of Barbering and Cosmetology

IJ represented African hairbraiders to defeat California’s cosmetology licensing requirements for their craft.

• Clutter v. Transportation Services Authority

IJ busted up Las Vegas’ entrenched limousine cartel that had stifled competition by blocking new entrants.

• Taucher v. Born

IJ set an early and important precedent extending First Amendment protection to software developers and Internet publishers. The CFTC had sought to license these individuals.

• Uqdah v. D.C. Board of Cosmetology

IJ’s work in court and the court of public opinion on behalf of D.C. hairbraiders led the District of Columbia to deregulate the cosmetology industry.

• Jones v. Temmer

IJ helped three would-be cab company owners overcome Colorado’s 50-year-old taxicab cartel. (IJ then helped break down government-sanctioned taxi monopolies in Indianapolis and Cincinnati.)

• Ricketts v. City of New York

IJ’s advocacy helped strike down the New York City Council’s veto of new van services.

For more information, contact:

John E. Kramer (Vice President for Communications)
Lisa Knepper (Director of Communications)
Institute for Justice
1717 Pennsylvania Ave., N.W.
Suite 200
Arlington, VA 22203
(703) 682-9320