11th Circuit US Court of Appeals, Montgomery, AL
November 2, 2010. Each side had 15 minutes to present their case, with an additional 3 minutes of rebuttal for the appellants.
Clark Neily presented a well-prepared and stellar argument on behalf of the appellants, stating first that Florida is one of only three states that regulate the practice of interior design, and that there were many areas of the Florida interior design law that violated constitutional rights as are outlined in his brief, but that he would focus his oral arguments on the issues of protected speech and the interstate commerce clause – areas where the state was unable to substantiate their defense.
Mr. Neily stated that there are 8 or 10 cases to support the appellants’ position. He further went on to inform the court that the law is not only burdensome on interstate designers like Juan Montoya, Kelly Wearstler who have been disciplined for practicing in Florida, but also impacts other industries, e.g. office furniture dealers who provide space planning, which is prohibited under the Florida law unless the company makes a licensed designer a principal of their company.
Judge Black asked about the state’s claim as to health, safety and welfare. Neily said there was no evidence that the unregulated practice of interior design jeopardizes the health, safety and welfare of the public, nor does it benefit the public in any way. The requirements are excessively burdensome, and the fact that 47 other states do not regulate and do not have problems conclusively proves it’s unnecessary and anti-competitive.
Neily also noted that the Supreme Court had made clear that the key inquiry in these cases is the “practical effects” of the challenged law, rather than the self-serving and reality-defying description of the law inevitably offered by the government when defending it in court
Jonathan Glogau, counsel for the state, attempted to defend the state’s position, but provided no evidence and crumbled under questioning by the judicial panel.
After his opening sentence affirming that the Florida law does not discriminate, Judge Black interrupted and asked him to respond to the appellant’s arguments that (1) FL law limits out-of-state practice unless they are a principal of the corporation, and (2) there is no health/safety/welfare threat and no benefits to the public.
Mr. Glogau said that the district court found no burden, and therefore the fact that there is no health/safety/welfare benefit really doesn’t matter because it’s secondary.
Mr. Glogau said that there are numerous building codes in Florida. Interior designers need to know the codes and that is the reason for licensure.
Judge Black cited Judge Hinkle’s statements relating to non-structural elements and furnishings and asked Mr. Glogau to define exactly what is a “non-structural element.” Mr. Glogau said that the dais in the courtroom would be a non-structural element. Judge Black said that was the example given to Judge Hinkle and asked him for an example other than a fixture.
Mr. Glogau shuffled his papers about a bit, looking for an answer, but seeing none, he had to reply that he didn’t know of another example.
Mr. Glogau then went on to define several examples of what architects do vs. what interior designers do. (Editor’s note: I found this part of his argument benefited the appellants’ argument because their scope of practice is exactly the same as 47 other states that do not regulate and have no issues).
Judge Cox asked him about the appellants’ Due Process claim, and has the Supreme Court applied it to this type of situation. Mr. Glogau said he did not know of any.
Mr. Glogau finished his argument with several minutes still left on the clock.
Mr. Neily had 3 minutes of rebuttal in which he emphasized his 3 main points:
- Florida’s law imposes a substantial burden on interstate commerce by making it unduly difficult for out-of-state interior designers and other businesses to perform statutorily defined “interior design services” in Florida.
- The state has provided no evidence in their defense, as it was required to do by controlling court precedent.
- There are certainly less burdensome ways to protect the public, as is evidenced by 47 states that do not regulate the practice of interior design. Again, controlling case law provides that the existence of “less burdensome alternatives” for promoting the state’s asserted health and safety objectives renders the unduly burdensome law unconstitutional.
Mr. Neily addressed Judge Black’s question about examples of non-structural elements by pointing out that an office panel system was such an element, as was confirmed by the Declaratory Order issued by the BOAID in January 2009.
Mr. Neily finished by re-iterating that 47 states do not regulate interior design like Florida, citing an 11th Circuit case in which the court noted that the absence (or near absence) of similar laws, while not controlling, was a strong indication that the challenged law is “arbitrary and irrational.”
I could not get a good feel for how the 3-judge panel felt about the case. On the one hand, if they actually take the time to study the briefs, then it should be a slam dunk for the appellants, because every legal point they need in order to win is supported by binding court precedent and the state stipulated that it has no facts to support its health, safety, and welfare assertions. But if the judges chose to disregard existing case law and the government’s admission that it has no evidence to support its case – which unfortunately does happen from time to time, especially in cases involving the constitutionality of economic regulations – then they might choose to uphold Florida’s interior design law. So in my non-lawyer opinion, right now it looks like a 50/50 shot that could go either way.
Patti Morrow, Director