eva locke, patricia anne levenson, barbara...

RECORD NO. 10-11052-EE

THE LEX GROUP ♦ 1108 East Main Street ♦ Suite 1400 ♦ Richmond, VA 23219 (804) 644-4419 ♦ (800) 856-4419 ♦ Fax: (804) 644-3660 ♦ www.thelexgroup.com

In The United States Court of Appeals

For The Eleventh Circuit

EVA LOCKE, PATRICIA ANNE LEVENSON, BARBARA VANDERKOLK GARDNER,

NATIONAL FEDERATION OF INDEPENDENT BUSINESS,

Plaintiffs – Appellants,

v.

JOYCE SHORE, JOHN P. EHRIG, AIDA BAO-GARCIGA,

ROASSANA DOLAN, WANDA GOZDZ, et al.,

Defendants – Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

__________________________

REPLY BRIEF OF APPELLANTS __________________________

William H. Mellor Daniel J. Woodring Clark M. Neily III WOODRING LAW FIRM Paul M. Sherman 3030 Stillwood Court INSTITUTE FOR JUSTICE Tallahassee, Florida 32308 901 North Glebe Road, Suite 900 (850) 567-8445 Arlington, Virginia 22203 (703) 682-9320 Counsel for Appellants Counsel for Appellants

Case: 10-11052 Document: 01116039075 Page: 1

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... iii

TABLE OF RECORD REFERENCES IN THE BRIEF........................................ vii

SUMMARY OF ARGUMENT .................................................................................1

ARGUMENT AND AUTHORITIES........................................................................2

I. Florida’s Interior Design Law Substantially Burdens And

Discriminates Against Interstate Commerce With No Offsetting

Public Benefits ......................................................................................2

A. Florida’s Interior Design Law Is Discriminatory .......................3

B. Florida’s Interior Design Law Is Unduly Burdensome ..............4

II. The Speech, Drawings, And Other Expressions That Make Up

The “Practice” Of Interior Design Are Protected By The First

Amendment ...........................................................................................7

III. There Is No Categorical Exemption For “Interior Decorator

Services” Under Florida’s Interior Design Law .................................11

IV. When Given Its Full Scope, Florida’s Interior Design Law Fails

Even Rational Basis Scrutiny..............................................................17

CONCLUSION........................................................................................................21


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CERTIFICATE OF COMPLIANCE

CERTIFICATE OF FILING AND SERVICE


iii

TABLE OF AUTHORITIES

Page(s)

CASES

Allstate Ins. Co. v. Abbott,

495 F.3d 151 (5th Cir. 2007) ...........................................................................5

Asociacion de Empleados del Area Canalera v. Pan. Canal Comm’n,

329 F.3d 1235 (11th Cir. 2003) .....................................................................17

Bonner v. City of Prichard,

661 F.2d 1206 (11th Cir. 1981) .......................................................................5

Cachia v. Islamorada,

542 F.3d 839 (11th Cir. 2008) .........................................................................3

Citizens United v. FEC,

__ U.S. __, 130 S. Ct. 876 (2010) .................................................................10

Craigmiles v. Giles,

312 F.3d 220 (6th Cir. 2002) .........................................................................20

Crooks v. Harrelson,

282 U.S. 55, 51 S. Ct. 49 (1930) ...................................................................14

De Weese v. Palm Beach,

812 F.2d 1365 (11th Cir. 1987) .....................................................................18


iv

Diamond Waste, Inc. v. Monroe County,

939 F.2d 941 (11th Cir. 1991) .....................................................................6, 7

Fitzgerald v. Racing Ass’n of Cent. Iowa,

539 U.S. 103, 123 S. Ct. 2156 (2003) ...........................................................19

Ford Motor Co. v. Tex. Dept. of Transp.,

264 F.3d 493 (5th Cir. 2005) ...........................................................................5

Gross v. FBL Fin. Servs.,

557 U.S. __, 129 S. Ct. 2343 (2009) .............................................................16

Heller v. Doe,

509 U.S. 312, 113 S. Ct. 2637 (1993) ...........................................................19

Island Silver & Spice, Inc. v. Islamorada,

542 F.3d 844 (11th Cir. 2008) .........................................................................3

Merritt v. Dillard Paper Co.,

120 F.3d 1181 (11th Cir. 1997) .....................................................................14

National Revenue Corp. v. Violet,

807 F.2d 285 (1st Cir. 1986)............................................................................3

Pike v. Bruce Church, Inc.,

397 U.S. 137, 90 S. Ct. 844 (1970) .....................................................4, 5, 6, 7

R & M Oil & Supply, Inc. v. Saunders,

307 F.3d 731 (8th Cir. 2002) ...........................................................................7


v

Service Machine & Shipbuilding Corp. v. Edwards,

617 F.2d 70 (5th Cir. 1980) .....................................................................5, 6, 7

Sinclair v. De Jay Corp.,

170 F.3d 1045 (11th Cir. 1999) .....................................................................17

State v. Lupo,

984 So.2d 395 (Ala. 2007)...................................................................2, 11, 15

United States v. Canals-Jimenez,

943 F.2d 1284 (11th Cir. 1991) .....................................................................11

United States v. Crape,

No. 09-12470, 2010 U.S. App. LEXIS 8212 (11th Cir. Apr. 21, 2010) .......14

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454, 115 S. Ct. 1003 (1995) ...........................................................10

United States v. Playboy Entm’t Grp.,

529 U.S. 803, 120 S. Ct. 1878 (2000) ...........................................................10

United States v. Stevens,

__ U.S. __, 130 S. Ct. 1577 (2010) ...........................................................9, 15

Universal City Studios v. Corley,

273 F.3d 429 (2d Cir. 2001) ............................................................................9

Vill. of Schaumburg v. Citizens for a Better Env’t,

444 U.S. 620, 100 S. Ct. 826 (1980) ...............................................................8


vi

Walgreen Co. v. Rullan,

405 F.3d 50 (1st Cir. 2005)..........................................................................3, 4

W. Lynn Creamery v. Healy,

512 U.S. 186, 114 S. Ct. 2205 (1994) ...........................................................19

CONSTITUTIONAL PROVISION

U.S. CONST. amend. I....................................................................................... passim

STATUTES

Fla. Stat. § 481.201 ..................................................................................................16

Fla. Stat. § 481.203(8)..............................................................................................14

Fla. Stat. § 481.223(2)..............................................................................................10

Fla. Stat. § 481.229(6)(a) .........................................................................................20

Fla. Stat. § 481.229(6)(b) .........................................................................................11

Fla. Stat. § 713.79 ..............................................................................................13, 16

Fla. Stat. § 775.082(4)(a) .........................................................................................10

OTHER AUTHORITY

Joyce Shore Interiors, Inc., Our Services, www.joyceshore.com/pages/

services.html (last visited June 14, 2010) ................................................................12


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TABLE OF RECORD REFERENCES IN THE BRIEF Docket No. Document Page No. in Brief (Tab) 54-26 Exhibit 4 to Declaration of Clark Neily: Excerpts from the Transcript of Deposition

of Joyce Shore 12 54-27 Exhibit 5 to Declaration of Clark Neily:

Table of Selected Interrogatories and Requests for Admission From the Plaintiffs and Defendants’ Responses 5, 12, 15

54-37 Exhibit 15 to Declaration of Clark Neily:

Letter from Mary Helena of Smith, Thompson, Shaw & Manusa to Steve Odland, CEO of Office Depot 5

54-38 Exhibit 16 to Declaration of Clark Neily:

Letter from Mary Helena of Smith, Thompson, Shaw & Manusa to Ronald L. Sargent, Manager,

Staples The Office Superstore, L.L.C. 5 54-39 Exhibit 17 to Declaration of Clark Neily:

Letter from Mary Helena of Smith, Thompson, Shaw & Manusa to

Sam K. Duncan, CEO of OfficeMax Incorporated 5

54-40 Exhibit 18 to Declaration of Clark Neily: Press Releases from the

Kelly Wearstler Action 4


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54-41 Exhibit 19 to Declaration of Clark Neily: Excerpts from the Administrative Proceeding against Juan Montoya by the Florida Board of Architecture and

Interior Design 4 65 Joint Pretrial Stipulation 5 68-5 Exhibit 4 to Declaration of Paul Sherman: Excerpts of the Transcript of Deposition of

Lisa K. Waxman, Ph.D. 13 71-9 Exhibit 6 to Declaration of Clark Neily:

Excerpts of the Transcript of Deposition of David K. Minacci 5

74 Opinion on the Merits 7, 15


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SUMMARY OF ARGUMENT Whether read broadly or narrowly, Florida’s interior design law imposes

substantial, unjustifiable burdens on free speech and interstate commerce. In 47

states, there are no laws restricting the practice of interior design, and no problems

as a result. It is abundantly clear from the record in this case and from legislative

analyses in other states that the unlicensed practice of interior design presents no

genuine public welfare concerns of any kind. See, e.g., IDPC amicus at 19-23.

Controlling precedent under the dormant Commerce Clause and the First

Amendment requires the government to support regulations with actual evidence

of public benefit. The state fails to present such evidence because there is none.

Instead, the state attempts to salvage the law by urging an artificial

construction that is flatly contradicted by the state’s discovery responses, the

testimony of its own witnesses (including a professor of interior design from

Florida State University retained by the state as an expert), common usage within

the industry, and statutory text. The state’s argument fails for three basic reasons.

First, as explained in parts I and II below, even under the state’s implausible

construction, Florida’s interior design law substantially and unjustifiably burdens

interstate commerce and free speech. Second, as explained in part III, the state’s

attempt to save the law by positing a categorical distinction between “interior

decorator” services and the state-licensed practice of “interior design” is a familiar


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ploy that is no more persuasive here than when the Alabama Supreme Court

rejected it in State v. Lupo, 984 So.2d 395, 404 (Ala. 2007). Finally, the state

concedes that the law “would indeed raise substantial constitutional issues” if it

were construed as broadly as the Appellants say it should be. Answer Br. at 13.

What the state fails to note, however, is that the broad construction it attributes to

the Appellants is in fact the same understanding uniformly shared by members of

the interior design community and even the State Board of Architecture and

Interior Design, at least until it abandoned that construction in favor of its current

litigating position. Florida’s interior design law is every bit as broad as its

sweeping language indicates, and the state’s attempt to have the courts rewrite the

law in order to minimize its constitutional defects is both unworkable and improper

under controlling case law.

ARGUMENT AND AUTHORITIES

I. Florida’s Interior Design Law Substantially Burdens And Discriminates Against Interstate Commerce With No Offsetting Public Benefits.

The state argues that Florida’s interior design law imposes “no burden” on

interstate commerce and does not discriminate in favor of Florida residents.

Answer Br. at 5, 22-26. Those claims are not only implausible (since the whole

point of the law is to restrict the local market to Florida-licensed designers only),

they also ignore both the authorities cited in the Appellants’ brief and the

discriminatory grandfathering provisions documented by the Appellants and


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amicus Office Furniture Dealers Alliance (“OFDA”). Opening Br. at 38-41; OFDA

Br. at 19-24. As explained below, that silence is deafening.

A. Florida’s Interior Design Law Is Discriminatory. The state does not challenge the legislative history recounted on page five of

Appellants’ opening brief and on pages 20-22 of OFDA’s amicus brief. This

includes a grandfather provision that allowed persons who had held themselves out

as an interior designer and maintained a municipal or county occupation license in

Florida for just one year to become licensed, while requiring all other persons to

demonstrate six years of experience as the principal of an interior design firm. Id.

at 20-21. The undeniable effect of that provision was to “confer the right to provide

[interior design] service[s] . . . upon a class largely composed of [Florida]

citizens,” which is both discriminatory and unconstitutional under the dormant

Commerce Clause doctrine. National Revenue Corp. v. Violet, 807 F.2d 285, 290

(1st Cir. 1986); Walgreen Co. v. Rullan, 405 F.3d 50, 56-58 (1st Cir. 2005).

The First Circuit’s reasoning in National Revenue and Rullan is fully

consistent with this Court’s discriminatory-impact case law, including Island Silver

& Spice, Inc. v. Islamorada, 542 F.3d 844, 846-47 (11th Cir. 2008) and Cachia v.

Islamorada, 542 F.3d 839, 843 (11th Cir. 2008). The state neither addresses those

cases in its brief nor provides any explanation for the discriminatory grandfather

clause that enabled Florida residents to effectively sidestep the burdensome


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licensing requirements that applied to others. See Rullan, 405 F.3d at 55 (noting

that “the Act, as amended, excused an almost entirely local class of pharmacies

from the certificate requirement”). Accordingly, even under the state’s proposed

revision, Florida’s interior design law unconstitutionally discriminates against

interstate commerce.

B. Florida’s Interior Design Law Is Unduly Burdensome.

Even if Florida’s licensing of interior designers did not discriminate against

interstate commerce, as it plainly does, the law would still be subject to balancing

under the Pike test, which asks the following three questions: Does the law burden

interstate commerce? Does that burden substantially outweigh the putative local

benefits? And could the state’s interest “be promoted as well with a lesser impact

on interstate activities”? Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. at

847 (1970). As demonstrated on pages 42-49 of Appellants’ opening brief, the

answer to all three questions is yes, and the state’s brief provides no meaningful

rebuttal.

Though the state fails to acknowledge it, the very point of Florida’s interior

design law is to restrict the market to Florida-licensed designers only. Thus, the

state has vigorously enforced its law against non-resident interior designers and has

even publicized those efforts in press releases. R-2-54-40, -41. The state also

commenced enforcement actions against three of the nation’s largest office


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furniture dealers for offering illegal “space planning” services, R-2-54-37, -38, -39,

although it now seeks to disclaim those actions (and the contrary testimony of its

prosecuting attorney, R-4-71-9 at 145.7-146.12) on the premise that they were only

commenced “at the behest of the Plaintiffs.” Answer Br. at 27. In reality, of course,

the Appellants have no control over Florida’s Board of Architecture and Interior

Design, which makes its own decisions about when to initiate enforcement actions

and against whom.

Because Florida’s interior design law plainly does impose substantial

burdens on interstate commerce, the state must demonstrate the existence of local

benefits sufficient to justify those burdens. But the state admits it has no evidence

of such benefits. R-2-54-27 at 4 (No. 12); R-3-65 at 8 ¶ 16. Lacking evidence of

any actual public benefit, the state contends that Pike balancing may be satisfied

by purely hypothetical assertions of public benefit. Answer Br. at 25 (citing

Allstate Ins. Co. v. Abbott, 495 F.3d 151, 164 (5th Cir. 2007) and Ford Motor Co.

v. Tex. Dept. of Transp., 264 F.3d 493, 503 (5th Cir. 2005)).

But that argument is foreclosed by Service Machine & Shipbuilding Corp. v.

Edwards, 617 F.2d 70 (5th Cir. 1980), which remains binding precedent in this

Circuit.1 In that case, the former Fifth Circuit invalidated a Louisiana-parish

1 See Bonner v. City of Prichard, 661 F.2d 1206, 1209-10 (11th Cir. 1981) (holding that Fifth Circuit decisions handed down before Sept. 30, 1981, remain binding precedent in this Circuit until overruled en banc).


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ordinance that required itinerant laborers who travelled to the parish for

employment to register their identity with the local authorities. 617 F.2d at 71-72

& nn.1-2. Judge Tjoflat explained that a court applying Pike balancing “must

examine the benefits that supposedly result from the local law, and not rely merely

on the assertion of an accepted local interest.” Id. at 75 (emphasis added). Thus,

while the parish asserted an interest in crime control, the court examined the

evidence, found the ordinance’s crime-control benefits “somewhat illusory,” and

concluded that it therefore failed Pike balancing. Id. at 76. The state fails to address

Service Machine, even though it is a controlling decision discussed at some length

in Appellants’ opening brief. See, e.g., Opening Br. at 43-44.

Finally, besides the absence of any demonstrable local benefits, it is clear

that Florida’s asserted interests in public safety “could be promoted as well with a

lesser impact on interstate activities,” Pike, 397 U.S. at 142, 90 S. Ct. at 847—as

evidenced in part by the fact that 47 states do not regulate the practice of interior

design and have experienced no documented problems as a result. In response, the

state claims that this lesser-impact inquiry applies only in discriminatory-impact

cases. Answer Br. at 28. But that assertion contradicts the express language of

Pike, quoted above, and this Court’s application of that inquiry, both in Diamond

Waste, Inc. v. Monroe County, 939 F.2d 941, 944-46 (11th Cir. 1991) (noting the

availability of “less restrictive alternatives” under Pike) and Service Machine, 617


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F.2d at 75-76 (considering the availability of “less burdensome schemes” and

“other alternatives open to the parish” in applying Pike). See also R & M Oil &

Supply, Inc. v. Saunders, 307 F.3d 731, 737 (8th Cir. 2002) (rejecting

discriminatory-impact claim, applying Pike, and considering “whether the local

interest involved ‘could be promoted as well with a lesser impact on interstate

activities’” (quoting Pike, 397 U.S. at 142, 90 S. Ct. at 847)).2

II. The Speech, Drawings, And Other Expressions That Make Up The “Practice” Of Interior Design Are Protected By The First Amendment. Apart from a few short paragraphs at the end, the state’s entire First-

Amendment argument is lifted verbatim from the district court’s opinion. Compare

Answer Br. at 14-18 with District Ct. Op., R-4-74 at 12-16. Appellants have

already addressed the district court’s First Amendment analysis in their opening

brief and will not repeat those arguments here.

The only new argument the state offers regarding the First Amendment is its

assertion that the Appellants have “denigrate[d]” the interior design profession “by

asserting that the interior designer does nothing of consequence in his relationship

with the client.” Answer Br. at 18. That is a rather puzzling accusation, because in 2 The state’s suggestion that Diamond Waste was actually a discriminatory-impact case is based on a misleading description of the challenged waste-hauling regulation as prohibiting “interstate waste” from entering the county’s landfill. Answer Br. at 28. In reality, the court determined that the regulation “treats interstate waste and intrastate waste on an equal basis” and applied Pike balancing—including the lesser-impact inquiry—precisely because there was no discriminatory impact. Diamond Waste, 939 F.2d at 944 (emphasis added).


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fact it is the state that seeks to truncate the term “interior design” by denying what

everyone in and out of the industry knows to be true: namely, that interior design is

a highly artistic, expressive occupation in which practitioners are valued not

simply—or even primarily—for their technical know-how, but rather for their

aesthetic taste and sense of style. By stripping all “aesthetic considerations” from

its definition of the term interior design, id. at 19, the state reduces interior

designers to mere technicians, which they certainly are not. See, e.g., IDPC Br. at

6-11.

The key conceptual mistake by the state and its amici is their failure to

appreciate the fact that virtually everything an interior designer does—from

soliciting information and ideas from a client about the project, to preparing

preliminary renderings, to suggesting and specifying furnishings, to preparing

formal design drawings—is speech. And because each of those activities

(including the creation of so-called “technical drawing[s],” Answer Br. at 12)

involves the communication of information, they all implicate “speech interests . . .

within the protection of the First Amendment.” Vill. of Schaumburg v. Citizens for

a Better Env’t, 444 U.S. 620, 632, 100 S. Ct. at 833 (1980).

That some of this speech may involve the application of specialized

knowledge does not denude it of First Amendment protection. As the Supreme

Court recently emphasized, “as a general matter, the First Amendment means that


9

government has no power to restrict expression because of its message, its ideas,

its subject matter, or its content.” United States v. Stevens, 130 S. Ct. 1577, 1584

(2010) (emphasis added, internal quotations and citation omitted). Contrary to the

implication of the state’s brief, there is no general “expert speech” exception to the

First Amendment, and drawings do not lose their First Amendment protection

simply because they are “technical” or detailed. See, e.g., Universal City Studios v.

Corley, 273 F.3d 429, 451 (2d Cir. 2001) (contrasting computer code with

blueprints by noting that the latter are “entirely speech”).

The state’s suggestion that there is a blanket First-Amendment exemption

for technical drawings or “professional” speech is further undermined by United

States v. Stevens, in which the Supreme Court rejected the government’s argument

that depictions of animal cruelty should be categorically excluded from the First

Amendment, like child pornography or defamation. The Chief Justice emphasized

that federal courts do not enjoy “a freewheeling authority to declare new categories

of speech outside the scope of the First Amendment,” 130 S. Ct. at 1585-86, and

may only do so when the speech in question has been shown to be “historically

unprotected.” Id. at 1586.

In this case, neither the state nor its amici have shown that interior-design-

related speech has been “historically unprotected.” To the contrary, the Appellants

and their amici have shown that such speech—because it is integral to a


10

fundamentally artistic endeavor—is a very poor candidate for categorical exclusion

from the First Amendment. Opening Br. at 28-29; IDPC Br. at 6-16. The state’s

only response is to cite a handful of cases upholding licensing requirements for

lawyers and accountants, Answer Br. at 15-16, while offering no persuasive

explanation for how the rationale in those cases could possibly extend to an artistic

vocation like interior design.

Because interior design—even under the state’s restrictive definition—

plainly involves speech protected by the First Amendment, the only relevant

question is whether Florida’s law burdens that speech. Clearly it does, both by

requiring a license to speak and by criminally punishing unlicensed speech. Fla.

Stat. §§ 481.223(2), 775.082(4)(a) (violation of interior design law is a first-degree

misdemeanor punishable by up to one year in jail); see also Citizens United v.

FEC, 130 S. Ct. 876, 896-97 (2010) (noting that both permitting processes and the

threat of criminal sanctions burden speech). And because Florida’s interior design

law burdens speech based on its content, it is subject to strict scrutiny. United

States v. Playboy Entm’t Grp., 529 U.S. 803, 813, 120 S. Ct. at 1886 (2000). Thus,

the state bore the burden in this case of demonstrating that the harms it alleges “are

real, not merely conjectural, and that the regulation will in fact alleviate these

harms in a direct and material way.” United States v. Nat’l Treasury Emps. Union,

513 U.S. 454, 475, 115 S. Ct. at 1017 (1995). Because neither the state nor its


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amici have produced even a scintilla of evidence that the unlicensed practice of

interior design poses a genuine threat to the public, the state has necessarily failed

to carry this burden.

III. There Is No Categorical Exemption For “Interior Decorator Services” Under Florida’s Interior Design Law. Faced with a constitutionally suspect licensing law devoid of any evidentiary

or commonsense support, the state deploys the same argument Alabama did in a

similar case several years ago: namely, the invention of a categorical distinction

between regulated “interior design” services and (supposedly) unregulated

“interior decorator” services. The Alabama Supreme Court found that argument

unpersuasive in State v. Lupo, 984 So.2d 395, 403-04 (Ala. 2007), and it fares no

better here.

The most glaring problem with the proposed decorator-designer dichotomy

is that it renders the statute’s retail-sale exemption superfluous, just as it did in

Lupo. Fla. Stat. § 481.229(6)(b); Lupo, 984 So.2d at 404 (“[W]e reject the Board’s

‘narrow’ reading of the definition [of the “practice of interior design,”] because the

Board’s reading would render portions of the retail-sale exemption superfluous.”);

cf. United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991) (noting

that “a statute is to be interpreted so that no words shall be discarded as being

meaningless, redundant, or mere surplusage”). Appellants made this point on page

15 of their opening brief, and it remains unanswered.


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Moreover, the undisputed evidence in this case establishes that industry

members and the State Board of Architecture and Interior Design have always

understood “interior decorator services” to be a subset of “interior design” and not

a categorically distinct concept or set of activities. Thus, for example, the Board’s

Chair, Joyce Shore—who refers to herself as an “interior designer,” not a

“decorator”—devotes much of her practice to the selection of furniture, art, and

accessories to create a particular atmosphere in a home or office. R-2-54-26 at 18-

22. If “interior decorating services” in fact constituted a wholly discrete set of

activities, as the state now posits, it would be highly misleading for Ms. Shore to

hold herself out as an “interior designer” and to describe as her areas of “design

expertise” the selection of art, antiques, furnishings, wall coverings, window

treatments, and flooring, as she does on her website.3 Likewise, before adopting its

contrary litigating position, the state initially conceded that an interior design

license is required to prepare drawings “relating to” such items as flooring,

wallcoverings, file cabinets, shelving, and furniture—including the placement of

chairs and couches in a hotel lobby. R-2-54-27 at 7-8 (Nos. 15, 16, 19-21, 25).

That is also the view of the state’s retained expert, professor Lisa Waxman, who

confirmed that Florida’s interior design law covers furnishings, cabinets, millwork,

interior doors, flooring, and window treatments. R-3-68-5 at 134-135. 3 Joyce Shore Interiors, Inc., Our Services, www.joyceshore.com/pages/ services.html (last visited June 14, 2010).


13

Finally, the state’s assertion of a categorical distinction between aesthetic

“decorator” services and purely technical “interior design” cannot be reconciled

with the legislature’s understanding of an “interior designer” as a person who, in

the course of his or her services, might provide a client with “furniture . . ., area

rugs, wall hangings, photographs, paintings [and] other works of art.” Fla. Stat.

§ 713.79. In the face of that language, the notion that the Florida legislature

understood and intended the term “interior design” to encompass only technical,

non-aesthetic expression and activity is insupportable. That point is further

reinforced by the recognition by one of the state’s amici that, in the minds of the

public, the terms “interior design” and “interior decoration” are used

“interchangeably.” NCIDQ Br. at 2.

Without addressing any of those points—textual surplusage, the contrary

fact record, and direct evidence of contrary legislative understanding—the state

seeks to bolster its decorator-designer dichotomy by resorting to several

interpretive canons, none of which can bear the weight of the state’s implausible

litigating position.

Absurd results. The state contends that Appellants’ literal interpretation of

Florida’s interior design law should be rejected because it produces absurd results.

For example, the state argues that even though the statute specifically defines


14

“interior design” as including “consultations,” “drawings,” and “specifications”

relating to “furnishings,” Fla. Stat. § 481.203(8), it would be “patently absurd” to

“conclud[e] that a person would need a license to choose a couch for a doctor’s

office waiting room.” Answer Br. at 10. But the state misunderstands the absurd-

results doctrine.

“It is true that [this Court] may depart from the text of a statute when its

plain meaning produces absurd or futile results . . . plainly at variance with the

policy of the legislation as a whole.” United States v. Crape, No. 09-12470, 2010

U.S. App. LEXIS 8212, at *17 (11th Cir. Apr. 21, 2010) (internal quotations

omitted, alteration in original). Still, courts rarely make that departure “because

the result produced by the plain meaning canon must be truly absurd before this

principle trumps it. Otherwise, clearly expressed legislative decisions would be

subject to the policy predilections of judges.” Merritt v. Dillard Paper Co., 120

F.3d 1181, 1188 (11th Cir. 1997). “To justify a departure from the letter of the law

upon that ground, the absurdity must be so gross as to shock the general moral or

common sense.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S. Ct. at 50 (1930).

Thus, the question is not whether licensing people who select couches or

prepare space plans showing their proposed location in an office is absurd in the

colloquial sense, but rather whether the legislature could not possibly have

intended the result commanded by the law’s plain language. Florida’s decision to


15

license specifications and drawings4 “relating to” couches and other furnishings in

commercial spaces may well seem ridiculous—as was Alabama’s interior design

law in requiring a license to select paint colors and throw pillows, see Lupo, 984

So.2d at 402—but it is not “absurd” in the specialized sense relevant here.

Constitutional avoidance. Appellants will not dwell long on the state’s

passing reference to the doctrine of constitutional avoidance, which is again lifted

verbatim from the district court’s opinion. Compare Answer Br. at 13 with District

Ct. Op., R-4-74 at 9-10. The Supreme Court recently emphasized that courts “may

impose a limiting construction on a statute only if it is ‘readily susceptible’ to such

a construction.” Stevens, 130 S. Ct. at 1592 (internal quotations and citation

omitted). Federal courts “will not rewrite a law to conform it to constitutional

requirements, for doing so would constitute a serious invasion of the legislative

domain and sharply diminish Congress’s incentive to draft a narrowly tailored law

in the first place.” Id. (internal quotations, citations, and ellipsis omitted). As

explained above, the state’s proposed construction flies in the face of those

principles by disregarding the literal text of Florida’s interior design law, by

rendering an entire provision of the law superfluous, and by disavowing the

4 R-2-54-27 at 8 (No. 25).


16

legislature’s understanding of interior design as including such purely aesthetic

items as “photographs, paintings, [and] other works of art.” Fla. Stat. § 713.79.

Legislative purpose. Finally, the state argues that Florida’s interior design

law should be interpreted consistent with the supposed legislative purpose of

protecting the “health, safety and welfare of the public.” Answer Br. at 11. As an

initial matter, there is no evidence that this was the legislature’s purpose. While the

“purpose” section of Florida’s architecture and interior design law refers to safety

in regard to the practice of architecture, it makes no such reference in regard to

interior design.5 Accordingly, there is no textual evidence that Florida’s interior

design law was enacted for the purpose of protecting the public’s health, safety, or

welfare. See Gross v. FBL Fin. Servs., 129 S. Ct. 2343, 2350 (2009) (“Statutory

construction must begin with the language employed by [the legislature] and the

assumption that the ordinary meaning of that language accurately expresses the

legislative purpose.”). 5 Florida Statutes § 481.201 states that:

The primary legislative purpose for enacting this part is to ensure that every architect practicing in this state meets minimum requirements for safe practice. It is the legislative intent that architects who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. The Legislature further finds that it is in the interest of the public to limit the practice of interior design to interior designers or architects who have the design education and training required by this part or to persons who are exempted from the provisions of this part. (Emphases added.)


17

Even if the interior design law did contain an express legislative purpose of

promoting health and safety, it is inappropriate for a court construing a statute to

“follow the overall purpose of the statutory scheme in order to disregard [its] plain

text.” Asociacion de Empleados del Area Canalera v. Pan. Canal Comm’n, 329

F.3d 1235, 1241 (11th Cir. 2003) (internal quotations and citation omitted); see

also Sinclair v. De Jay Corp., 170 F.3d 1045, 1047 (11th Cir. 1999) (“[W]hen the

language of a statute is plain and unambiguous, it is inappropriate to resort to any

examination of purpose to interpret meaning.”).

IV. When Given Its Full Scope, Florida’s Interior Design Law Fails Even Rational Basis Scrutiny.

The state and its amicus American Society of Interior Designers (ASID)

argue that the practice of interior design implicates public health, safety, and

welfare, and that it is therefore rational for the government to regulate who may

perform interior design services. Answer Br. at 29-33; ASID Br. at 14. As an initial

matter, it is notable that neither the state nor its two amici (who are among the

chief proponents and the chief beneficiaries of interior design licensing laws) have

documented even a single incident of harm caused by the unlicensed practice of

interior design, despite having 47 states—including giants like California and New


18

York—in which to look for examples.6 The paucity of regulation in this area,

together with the absence of any documented harm, raises the specter of

irrationality. See De Weese v. Palm Beach, 812 F.2d 1365, 1369 (11th Cir. 1987)

(“The virtual absence of statutes or ordinances similar to the instant one, although

not controlling, is a strong suggestion that the ordinance is arbitrary and

irrational.”).

But even setting aside the lack of regulation in other states and the absence

of documented harm, Florida’s interior design law does not plausibly advance a

legitimate public purpose because it is riddled with exemptions. See Opening Br. at

49-54. The state tries to avoid the inherent irrationality of the law as it is written by

treating its provisions—including its many exemptions—as if they operated in

complete isolation from one another. But as the Supreme Court has noted in other

contexts, it is an error “to analyze separately two parts of an integrated regulation,”

6 NCIDQ’s amicus brief quotes the cable channel HGTV’s website for the proposition that “23 states require designers to have licenses, just like doctors or lawyers.” NCIDQ Br. at 3. This is false. As set forth on page three of Appellants’ opening brief, only three states regulate the practice of interior design. Other states regulate the use of titles such as “registered interior designer” or “licensed interior designer,” but impose no restrictions on who may perform interior design work. An accurate map of state interior design regulations is available at http://idpcinfo.org/legislation.html.


19

when an “entire program” is subject to constitutional challenge. W. Lynn Creamery

v. Healy, 512 U.S. 186, 201, 114 S. Ct. at 2215 (1994) (dormant Commerce Clause

challenge). Thus, the question is not whether individual provisions of Florida’s law

may be deemed rational, but rather whether the entire scheme, taken as a whole,

plausibly advances a legitimate state interest. See, e.g., Fitzgerald v. Racing Ass’n

of Cent. Iowa, 539 U.S. 103, 107-10, 123 S. Ct. at 2159-61 (2003) (emphasizing

that rational basis test requires a “plausible policy reason” (emphasis added));

Heller v. Doe, 509 U.S. 312, 324, 333, 113 S. Ct. at 2649-50 (1993) (same).

If rational basis review is nothing more than a rubber stamp for legislative

action, then of course Florida’s interior design law passes muster. But if the

rational basis test has any substance at all—and particularly if one takes seriously

the requirement that regulations be supported by a truly plausible policy reason—

then Florida’s exception-riddled interior design law should fail because it is not

reasonably related to any genuine public welfare concerns. Thus, to conclude that

Florida’s law is rational, one would have to simultaneously believe that: (1) interior

design is so inherently dangerous that only those with six years of formal education

and experience should be allowed to make artistic renderings related to commercial

interior design projects; (2) the free market is nonetheless perfectly capable of

ensuring that only qualified individuals make drawings regarding the placement of

deep fryers in commercial kitchens; (3) individuals who gained only a single year


20

of interior design experience in Florida in the late 1980s can safely perform all

aspects of interior design without any formal education; and (4) the risks

supposedly associated with the selection of carpet, door hardware, faucets, and

telephone mountings in commercial spaces, e.g., ASID Br. at 17-19, are somehow

absent in private residences, where anyone may practice interior design in Florida

regardless of their qualifications and without any government oversight. Fla. Stat.

§ 481.229(6)(a); see generally Opening Br. at 52-53.

Those propositions are simply irreconcilable with the notion that Florida’s

regulatory scheme bears any rational connection to public health and safety. To the

contrary, the only perspective from which Florida’s interior design licensing

scheme truly appears rational is that of the interest groups who drafted and

promoted it. In this way, Florida’s interior design law is exactly like the casket-sale

law held unconstitutional in Craigmiles v. Giles, 312 F.3d 220, 228 (6th Cir.

2002): “Finding no rational relationship to any of the articulated purposes of the

state, we are left with the more obvious illegitimate purpose to which licensure

provision is very well tailored.” Appellants discussed Craigmiles on page 54 of

their opening brief, but the state offers no response. Appellants respectfully urge

this Court to embrace the Sixth Circuit’s reasoning in Craigmiles and invalidate

Florida’s interior design law, not because it is patently protectionist, but instead

because it has no other plausible rationale.


21

CONCLUSION

For the foregoing reasons, the Plaintiff-Appellants respectfully request that

the portion of the district court’s decision upholding the practice provisions of

Florida’s interior design law be reversed and that this case be remanded for entry

of a judgment declaring the practice provisions unconstitutional and enjoining the

state from enforcing them.

Dated this 15th day of June, 2010. Respectfully submitted,

___________________________________ William H. Mellor (DC Bar No. 462072) Clark M. Neily III (DC Bar No. 475926)

Paul M. Sherman (DC Bar No. 978663) INSTITUTE FOR JUSTICE 901 North Glebe Road, Suite 900 Arlington, Virginia 22203 Tel: (703) 682-9320 Fax: (703) 683-9321

Email: [email protected], [email protected], [email protected] Attorneys for Appellants


22

Daniel J. Woodring (FL Bar No. 86850) WOODRING LAW FIRM 3030 Stillwood Court Tallahassee, FL 32308-0520 Tel: (850) 567-8445 Fax: (850) 254-2939 Email: [email protected] Local Counsel for Appellants


CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B) because this brief contains 4,973 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word in 14-point Times New

Roman font.

By: __________________________ Clark M. Neily III Institute for Justice 901 North Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Attorney for Appellants


CERTIFICATE OF FILING AND SERVICE

I certify that on this 15th day of June, 2010, I filed with the Clerk’s Office of

the United States Court of Appeals for the Eleventh Circuit, via UPS Next Day

Air, the required number of copies of this REPLY BRIEF OF APPELLANTS,

and further certify that I served, via UPS Next Day Air, the required number of this

REPLY BRIEF OF APPELLANTS to the following:

Jonathan A. Glogau Chief, Complex Litigation PL-01, The Capitol Tallahassee, FL 32399-1050 Tel: (850) 414-3300, ext. 4817 Fax: (850) 414-9650 Email: [email protected] Attorney for Appellees

By: __________________________ Clark M. Neily III Institute for Justice 901 North Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Attorney for Appellants


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