IJ Files Petition in U.S. Supreme Court re Florida Interior Design Legal Challenge

It’s not over until. . . well, you know.

Today the Institute for Justice has filed a Petition for Writ of Certiorari with the United States Supreme Court to appeal the decision of the 11th U.S. Circuit Court of Appeals and attempt to overturn Florida’s unconstitutional interior design law.  This is an important case in the defense of free speech.

“Virtually everything an interior designer does—from consulting with clients about their personal tastes, to making design drawings, to giving advice—is just speech,” said IJ Senior Attorney Clark Neily in today’s press release.  “The First Amendment prohibits the government from requiring aspiring interior designers to get a license before they can offer harmless advice to their customers.”

“IDPC attorney, Robert Kry, will be filing another amicus brief on behalf of the Interior Design Protection Council in support of the Institute for Justice petition,” said Patti Morrow, director of IDPC.  “Florida’s anti-competitive, unnecessary interior design law cannot stand.  We will do everything possible to support IJ’s efforts to re-establish freedom to design in Florida.”

Florida dergulation front page of the Wall Street Journal!

The Fight for Interior Design Freedom is Ground Zero in Florida  http://online.wsj.com/article/SB10001424052748703551304576260742209315376.html?mod=WSJ_latestheadlines

Incredible PR spotlighting the intense battle that has been going on in Tallahassee for the last month. 

Campo-Flores writes about the scenarios the Cartel has ”conjured:”

• flammable carpets
• sparking infernos
• bacterial fabrics that will contributing to the (baseless) assertion that 88,000 deaths will occur if deregulated
• and our all-time favorite — the totally absurd implication that without licensing, jail furnishings would be turned into weapons.

Of course, no genuine evidence or facts were given to back up any of these so-called safety issues.  That’s because none exists.

Licensed designer Michelle Earley is quoted as saying, “it only takes a couple things [sic] to go wrong for people to lose their lives.”  Same old tired scare tactics.  Ms. Earley is certainly entitled to her own opinion, but not her own set of facts. 

There is not a shred of evidence that the 47 other states that do not regulate interior design have been responsible for a single interior design-related death.  In fact, 12 government agencies have concluded just the opposite:  http://www.idpcinfo.org/GovReports.html 

As ususal, the Cartel cites disasters like the 1980 MGM fire as examples of “faulty interior design.”  Not mentioned in the article are the facts that the incident had nothing to do with unqualified interior designer work is completely belied by a 2005 article in the Las Vegas Review Journal, which makes clear that the primary reason why the fire spread was a combination of

(a) inadequate sprinklers;

 (b) rampant code violations; and

(c) the defective flammable adhesive used to attach ceiling tiles. 

Most of the victims died of smoke inhalation, but there has been no evidence presented that the quantity or lethality of the smoke was in any way enhanced by improper decorating or design choices.   http://www.nfpa.org/assets/files/Press%20Room/LasVegasMGMGrand.pdf

The article ends with a quote from interior designer Nancy Stehle which really says it all:  “If you’re good at what you do, you never have to be concerned.”

Why not let Florida consumers decide who they want to hire to design their commercial spaces, exactly as it’s done in 47 other states, and without any harm to the public?

Bottom line, deregulation creates more jobs, and will not require that all commercial work be done under the supervision of an architect.

Patti Morrow, Director

IJ and IDPC join forces again in en banc appeal in FL lawsuit

Summary of 11^th Circuit US Appeals Court Decision

Institute for Justice Petition for En Banc Review and IDPC’s Supporting Amicus Brief

 

The Appellate Court upheld the Florida Interior Design Practice Act by finding that the Florida legislature could exercise its legislative authority by enacting design licensing if it concluded that such law was necessary.  Essentially, the court said that they wouldn’t substitute their judgment for that of the legislature. 

However, the Court did not apply the constitutional doctrine to the facts of the case.  It is clear from the discovery that there is no indication whatsoever that the public is being protected by the law or that there is any harm to the public occurring that the law was designed to guard against. 

Instead, the Court relied on a single self-serving statement made in the materials given to the legislature which had been carefully crafted by proponents of the law to support its request for licensing back in the 1980’s as evidence the that there was a “health, safety and welfare” concern that the law was designed to protect against.  These materials contained no actual facts, statistics or empirical evidence which would support a conclusion that unregulated interior design places the public in jeopardy, but rather relied on rhetoric and scare tactics, which went uncontested, as was typical in the under-the-radar tactics to enact licensing schemes from 1970 through 2005.

Every state agency that has actually looked at this issue in response to the ASID-led Cartel’s incessant request for regulation has concluded that there is no public safety issue that is unprotected by the failure of the legislature to regulate designers beyond the laws that are already in place.  The Florida Board of Architecture and Interior Design and the States own experts in the lawsuit filed by the Institute for Justice, admitted that the law has nothing to do with protecting the health, safety and welfare of the public.  Most recently, in the course of discovery as part of the federal lawsuit challenging the constitutionality Florida’s interior design practice law, when questioned under oath, not a single proponent of the law could cite any benefits to consumers or harm that had occurred

The panel’s decision is riddled with factual and legal errors, ignores stipulated facts about the total lack of public safety concerns or public benefit, and — most importantly from the legal standpoint — directly conflicts with controlling case law that the panel didn’t even bother to cite.  The inexplicable refusal to follow — or even acknowledge the existence of — binding legal precedent makes the decision ripe for review by the entire Eleventh Circuit Court of Appeals, and the Institute for Justice has filed an en banc petition to correct this extraordinarily misguided decision, and is committed to take it all the way to the Supreme Court if that’s what it takes to have binding case law correctly applied to the stipulated facts of this case.

The Interior Design Protection Council continues to support the work of the Institute for Justice and has filed an Amicus Brief in the en banc petition, which is also signed by eight supporting organizations.

Student indoctrination rampant in Florida

Attention Florida Interior Design Students!

Will deregulating interior design allow ONLY architects to do commercial design?

In a word. . . NO!

The statement that deregulating designers will mean that only architects can do design work in commercial spaces is nothing more than a deliberate attempt by ASID and their puppet coalition IDAF to mislead their members, the design community, legislators, and students, in a planned effort to confuse them as to the true purpose of the bill.  No one, other than ASID/IDAF, says that the law will limit the ability of designers to work and seek jobs.  The entire purpose of deregulation is to remove barriers to entry, reduce unnecessary governmental regulations which hinder small businesses and entrepreneurs from starting or expanding their businesses, encourage new businesses to grow and hire, and provide consumer choice. 

What ASID/IDAF has done is take the language of the bill regarding the definition of “architecture” and taken words out of context, while ignoring the full language of the definition, to claim that if architects are the only ones left in the architecture law, that means that no one else can do work in commercial spaces.  That’s not what the law says, that is not what AIA says, that is not what the bill sponsor says, that is not what the Building Officials Association of Florida says, that is not what the Florida Engineering Society says, and that is not what is contained in the Building Official’s Guide to the Professional Practice of Architects & Engineers in Florida.  Architectural services as defined by law, and which designers may not perform unless licensed as architects, “means the rendering or offering to render services in connection with the design and construction of a structure or group of structures which have as their principal purpose human habitation or use, and the utilization of space within and surrounding such structures.”  Taken to its illogical extreme, ASID/IDAF ignores the language that sets out the parameters of the work as “the design and construction of a structure” and references only the portion that talks about utilization of space and designs and drawings.  Again, it is only related to the design and construction of the structure.  But since designers can’t do that anyway, saying that would not generate the outpouring of letters and phone calls that their campaign has generated.  We have worked with the bill sponsor and the legal counsel for the Committee to ensure that what ASID/IDAF are claiming is not accurate, and they have told us that if it helps, they would add language to the bill to make it absolutely clear that all interior designers will be able to perform the services that only registered interior designers may perform today – no one intends to limit their work or restrict commercial design to just architects.

Students are receiving a grave injustice from their “professors” who are not telling them the truth about the profession or the affect of deregulation. As Florida law currently stands now, if they want to become registered, students must only work under the supervision of a licensed interior designer (only 2560 in the entire state of Florida), or an architect or engineer.  Where are the 2,000 design students that were testified to going to get a job upon graduation?  How many of the 2560 designers are still in business, or are not solo practitioners who don’t have enough work for themselves let alone enough to hire a new designer, or who do not work for a large architecture firm and have the ability to hire a designer themselves?  And even if they have the means, how many are in favor of training up their future competitors in such a difficult economy?  Not to mention, we hear numerous complaints from student “interns” that they feel like indentured servants, making little or no pay, and relegated to non-related design work like filing and answering phones.

The schools have greatly expanded their design programs over the past few years chasing tuitions and fees, far beyond the capacity of the profession to absorb the graduates.  These students are in for a rude awakening upon graduation.  By allowing more businesses to work in the field, their job opportunities and ability to be hired will increase.  Only in the hallowed halls of academia can limiting the number of businesses that can operate, especially in a down economy, increase job opportunities for graduates!

I strongly encourage all students to seek out the facts of this issue rather than take at face value the intentional misleading by instructors who have their own personal political agenda.   The truth is always the best place to start out in your career. 

Please share this information with your fellow students, and for more information, please visit our website where we have a special page dedicated to student licensing issues.  I guarantee you’ll find the information there very eye-opening.  http://www.idpcinfo.org/Students.html

Best of luck to you in your interior design career!

Patti Morrow, IDPC Director

 

ADE, CAPS, DSA, IRIS, NKBA, RESA, RIDE, NAOEM, USGBC-NH

Interior design legislation discussion on Today’s Home

PATTI MORROW, Director of the Interior Design Protection Council, is going to be my very special guest on Today’s Home tomorrow morning at 9:00 Pacific Time/12:00 Eastern Time. Please tune in, and call with your questions (toll free, of course!)

Click here for tune in and call in structions: http://todays-home.com/

Diane Plesset, Today’s Home radio host

More red tape for Florida interior designers…students beware!

Read this excellent investigative report by David Arthur Walters of the Miami Mirror: http://www.idpcinfo.org/The_Case_of_Elizabeth_by_David_Arthur_Walters.pdf

Florida Interior Design Law Appeal – Summary

11^th 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:

1. 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.
2. The state has provided no evidence in their defense, as it was required to do by controlling court precedent.
3. 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

Interior Design Cartel’s Attack on Economic Liberty

Clark Neily, Senior Attorney @Institute for Justice

The Cartel’s Attack on Economic Liberty

For as long as there has been government, private industry groups have sought to manipulate the levers of power to promote their own selfish interests.  In medieval Europe those efforts gave rise to the guild system; in England, they led to Royal monopolies on the sale of everything from wine to playing cards.  Indeed, government-backed monopoly power was actually among the causes of the American Revolution; for example, the famous Boston Tea Party was actually a protest against a Royal monopoly granted to the East India Company on the importation of tea to the Colonies. 

In throwing off the yoke of British rule, among the Founding Fathers’ goals was to substantially reduce the ability of government to play favorites in economic affairs, as the British government and corrupt local officials had been doing.  The same is true of the Fourteenth Amendment, which was added to the Constitution following the Civil War with the specific purpose of securing key civil rights—including economic liberty—to all citizens, particularly newly freed African-Americans, whose ability to earn an honest living was nearly destroyed by the infamous Black Codes of the time. 

10 Organizations Join IDPC Brief to Take Down Unconstitutional Interior Design Law

Freedom Movement Allies Unite to Restore Design Freedom in Florida

The Interior Design Protection Council (IDPC) was joined by ten other interior-design and allied organizations in filing their Amicus (“Friend of the Court”) Brief in the 11^th U.S. Circuit Court of Appeals in support of the appeal filed by the Institute for Justice last month. 

These like-minded organizations include:

1. Alabama Decorators, Artists, and Designers
2. Association of Design Education
3. Association of Interior Design Professionals
4. Decorating Den Systems
5. Designer Society of America
6. Foodservice Equipment Distributors Association
7. Interior Design Society
8. Interior Redesign Industry Specialists
9. North American Association of Food Equipment Manufacturers
10. Real Estate Staging Association

Among other things, these organizations agree with the fundamental principle that interior design regulations have nothing to do with protecting the public and everything to do with protecting industry insiders from fair competition. 

“Patti Morrow and IDPC share our views on legislation of the interior design profession,” said Adrian Small, president-elect of the Association of Interior Design Professionals.  “AIDP is committed to actively oppose any existing or proposed legislation that seeks to regulate the ability of interior designers to practice their trade. There is a time when we must join forces with our peers to insure that the voice of the majority of the interior design community is heard.”  Continued Small, “This is that time.”

Natasha Lima-Younts, founder and president of the Designer Society of America, was one of over 600 members of the Florida design community victimized by the Board of Architects and Interior Designers’ ruthless witch hunt.  “We are thrilled to support IDPC in this brief and in funding their important work,” declared Younts.  “Yes, interior design involves creativity and critical thinking, but limiting who can offer interior design services to only a small, self-anointed handful provides no additional public protection, but instead results in fewer choices and higher prices for consumers.”

The Interior Design Protection Council is the only national nonprofit organization exclusively formed to protect the rights and livelihoods of the interior design community.  Founder and director Patti Morrow has been instrumental in beating back over 100 efforts to expand or enact new interior design regulations.  “What is so insidious about a one-size-fits-all regulatory scheme is that it not only negatively impacts interior designers, per se,” said Morrow, “but many other allied and ancillary industries as well.”  Morrow claims that in Florida – Ground Zero in the fight for design freedom – people in more than 20 occupations were disciplined for violating the restrictive, anti-competitive interior design law, including office furniture dealers, restaurant equipment suppliers, workrooms, stagers, various retailers, kitchen designers, remodelers, real estate developers, art and antiques dealers, yacht design, and even a florist.  “It’s time for the sun to set on the Florida interior design cartel!” avowed Morrow.

Also joining the fray are the National Kitchen and Bath Association and the Office Furniture Distributors Association, which each filed their own Amicus Brief. 

Click here to read the Amicus Brief of the Interior Design Protection Council et al: http://www.idpcinfo.org/Amicus_Brief_of_Interior_Design_Protection_Council_.pdf

Patti Morrow, Executive Director IDPC

IDPC files brief in Florida unconstitutional interior design lawsuit

 

Institute for Justice/Interior Design Protection Council Join Forces to Take Down Interior Design Cartel

 The Interior Design Protection Council (IDPC), joined by ten other interior-design and allied organizations, has filed an Amicus (“Friend of the Court”) Brief in the 11^th U.S. Circuit Court of Appeals in support of the appeal filed by the Institute for Justice last month.  At issue is a Florida law that requires a government-issued license to perform commercial interior design work.  Given that there has never been a documented instance of harm from interior design in the 47 states that do not regulate the practice of interior design, it is quite clear that licensing interior designers has nothing to do with protecting the public and everything to do with protecting industry insiders from fair competition. 

On February 4th, Federal District Judge Robert L. Hinkle declared unconstitutional the portion of the Florida law that prohibited people without a license from referring to themselves as interior designers, as well as sharply narrowed provisions of the law restricting the practice of interior decorating in commercial buildings by unlicensed persons. “This ruling is an important first step to getting Florida’s unconstitutional interior design laws struck down entirely,” said Clark Neily, senior attorney at the Institute for Justice, a public interest law firm that litigates nationwide on behalf of entrepreneurs facing anti-competitive state licensing laws like Florida’s interior design practice act.

IDPC is a nonprofit organization whose sole mission is to protect the rights and livelihoods of interior designers and related occupations, by educating, organizing, and mobilizing grassroots opposition.  Its brief argues that the court’s decision failed to understand that interior design is really a fundamentally expressive activity, compounded that error by ignoring the severe burdens that Florida’s statute imposes, and disregarded conclusive evidence that interior design licensing serves no countervailing public interest.

“Interior design is a dynamic profession that celebrates innovation, creativity and diversity, and consumers directly benefit from the multiple pathways into the field,” said Patti Morrow, founder and director of IDPC.  “Florida’s one-size-fits-all occupational licensing scheme could not be more contrary to those values, and that’s why ten major organizations have signed on to support our brief.”  IDPC is spearheading the movement to resist the efforts of a small, elitist faction of interior designers that is attempting to cartelize the industry through arbitrary and unreasonable occupational licensing laws.  In doing so, IDPC has helped beat back over 100 different attempts to impose or expand restrictions on interior designers around the country in the past four years. 

The court of appeals is expected to hear oral arguments in the Florida interior design appeal (Locke v. Shore, No. 10-11052-EE), in 2010 or early 2011.

“The district court’s ruling that Florida’s statute is ‘not subject to First Amendment scrutiny’ because ‘there is a ‘personal nexus’ between the interior designer and the client’ represents a dramatic and unwarranted expansion of the professional speech doctrine,” wrote attorney Robert Kry of Molo Lamken, L.L.P., Washington, DC, author of IDPC’s Amicus Brief.  Kry is among the country’s foremost authorities on the so-called “professional speech” doctrine, which effectively eliminates First Amendment protection for certain kinds of vocation-related speech.  As Kry explains in the IDPC brief, “Where the First Amendment is at stake, proponents of licensure must do more than concoct overwrought hypotheticals about exploding fabric finishes and furniture-placement deathtraps for the disabled. Yet for all their years of trying, that is all those proponents have been able to muster.”

  “Arguing that the State’s power to license doctors or lawyers implies a power to license interior designers is like arguing that the State’s power to license motor vehicle operators implies a power to license the press,” continued Kry.  “It makes no sense.” 

Click here to read the Amicus Brief of the Interior Design Protection Council et al:  http://www.idpcinfo.org/Amicus_Brief_of_Interior_Design_Protection_Council_.pdf 

Patti Morrow Exec Dir