Florida’s Interior Design Licensing Cartel Gets Hung Out to Dry
Load Florida. Set to spin. Press start.
That’s what ASID, IIDA and their Florida-based puppet-coalition, IDAF, are doing to try and wash the truth out of the recent Florida court decision.
In the past several weeks, we have seen concerted efforts to mislead the design community by misrepresenting the recent court ruling in which a judge struck down the title provision of Florida’s interior design law and created significant new opportunities for nonlicensees to work in commercial settings by rewriting the law’s practice restrictions.
That’s supposed to be a “victory” for the pro-regulation cartel? Sorry ASID, IIDA, and IDAF—that just doesn’t wash. Here are the FACTS:
1. Title Restriction Struck Down—Period.
Before the court’s ruling on February 4, 2010, only state-licensed interior designers were allowed to use the terms “interior design,” “interior designer,” “space planning,” and other “words to that effect.” Federal District Judge Robert Hinkle declared that provision unconstitutional and ordered the state not to enforce it any longer. How significant was that ruling?
Alleged title violations have always made up the vast majority of enforcement actions brought by the State Board of Architecture and Interior Design under Florida’s interior design law—about 80-90% since 2002. These cases usually involved a nonlicensee who was lawfully practicing residential interior design (which is specifically exempted from the practice act) and simply advertising that fact, accurately, on their business cards, on their website, or in the yellow pages. The State Board even went after nonlicensees for being identified—again, accurately—as “interior designers” in newspaper articles and in magazine profiles over which they had no control! I’ve said it before and I’ll say it again: it was a modern-day witch hunt. Of course, the effect of the title law (the very deliberate effect, I might add) was to make it as difficult as possible for potential clients to identify these unlicensed residential designers. No Google search for “interior designer” or “space planning” would find them, and they could not be listed under the “interior design” heading in the yellow pages.
But now they can. The cartel’s censorship of the terms “interior design,” “interior designer,” “space planning,” etc. is OVER. The public will now be able to find both licensed and unlicensed interior designers in Florida when they go online, or look in the yellow pages, or drive by a designer’s business.
Given the almost single-minded zeal with which the Board has been going after alleged title violations over the past eight years, the significance of that ruling cannot be overstated. And because the state decided not to file an appeal, that ruling is FINAL.
2. Florida’s Practice Restriction Judicially Rewritten—Nonlicensees May Now Perform Substantial Work in Commercial Settings.
As written, Florida’s interior design law says you must have a license to perform interior design work—including space plans, designs, consultations, studies, or specifications—in any nonresidential setting. The sweep of that law is staggering. Indeed, it is reminiscent of Alabama’s practice act, declared unconstitutional by the Alabama Supreme Court in 2007, which made it a crime for nonlicensees to offer advice about such mundane things as paint colors and throw pillows.
In order to avoid the “substantial constitutional issues” (those are Judge Hinkle’s words, not mine) that arise from a literal reading of the statute, the Board of Architecture and Interior Design abandoned its earlier interpretations of the law and asked the judge to simply rewrite the practice act however he thought necessary in order to uphold it. The result was an incomprehensible new definition of “interior design” in Florida that no one can understand and that will be virtually impossible for the State Board to enforce.
According to the new definition invented by the Board’s lawyers and the judge, “interior design” in Florida no longer includes spaces plans and other services relating to “stand-alone furniture” (whatever that means exactly—the court decision uses the term but never defines it) in commercial settings and apparently does not include surface materials, window treatments, wall coverings, paint, floor coverings, surface-mounted lighting, or surface-mounted fixtures in commercial settings either.
So what, if anything, remains covered by Florida’s commercial practice restriction? The only thing that remains covered for sure based on the judge’s ruling is “fixtures,” typically defined as “personal property that is attached to land or a building and that is regarded as an irremovable part of the real property”—things like non-load-bearing walls, ceilings, and HVAC materials.
As to everything else—well, it’s anybody’s guess what remains covered and what does not. As specifically noted in the court ruling, this pulled-from-thin-air definition of “interior design” represents a new and “limited construction” invented by the State Board’s lawyers “to obtain a favorable ruling in this case.” Moreover, the judge specifically admonished the State Board that it would not be allowed to “revert to incorrect positions [read: correct but constitutionally problematic] it has taken earlier” and “will not be free in later cases to disavow the limited construction it has successfully advocated here.”
Here is what the Board’s prosecuting attorney David Minacci said in an email to IDAF president Janice Young four days after the ruling came down:
“I do not agree with the Judge’s ruling and I cannot defend it. All I’m doing is telling you what I think it says. Bottom line, the practice act was saved but really had the legs cut out from underneath it.” http://www.idpcinfo.org/Minacci_-_Can_t_Defend.pdf
Does that sound like “victory?” Hardly.
3. The Cartel’s “Victory” Celebration Is Not Only Misplaced But Premature.
Besides having precious little to celebrate after seeing the practice act’s “legs cut out from underneath it” in order to save it, the cartel’s victory dance is premature because an appeal has been filed challenging Judge Hinkle’s decision to save even a legless version of Florida’s interior design practice act.
Two important issues on appeal will be the facts that: (1) no one can make heads or tails of the court’s new definition of “interior design”; and (2) besides being incomprehensible, that new definition of “interior design” is utterly unrecognizable to anyone in the industry. As Brad Powell put it in an article in the February edition of Office Insight Magazine (which ASID ballyhooed to its members in a recent email):
“‘Oh, nooo!’ I hear many say. ‘The Florida court’s interpretation of interior design does not make any sense, and certainly does not correctly characterize the interior design profession.’ This objection is most certainly correct.”
The Board’s prosecuting attorney David Minacci was even more succinct. As he said in an email to IDAF president Janice Young one week after the ruling came down:
“I think things are more confusing after this opinion than before.” http://www.idpcinfo.org/Minacci_-_Confusing.pdf
And Board Chair Joyce Shore’s reaction when she was told that the Institute for Justice had appealed Judge Hinkle’s decision?
“I am terribly disappointed but I am not surprised.” http://www.idpcinfo.org/Shore_-_Disappointed.pdf
Again, does that sound like victory? As usual, the cartel’s rhetoric is totally at odds with the facts.
So stay tuned, more of the cartel’s dirty laundry will be cleaned.