Why the Supreme Court Should Review Florida's Absurd Occupational Licensing Scheme for Interior Designers

Writing in The National Law Journal, Institute for Justice attorneys Clark Neily and Paul Sherman explain why the Supreme Court should agree to hear the case of Locke v. Shore, which centers on Florida's 1994 law requiring interior designers to carry a costly state license before plying their trade. As the authors write:

Florida is one of only three states in the nation to license the practice of interior design, and the burdens Florida's law imposes on would-be designers are extraordinary, particularly in light of the fact that 47 states see no need to license them and have had no problems as a result. Acquiring an interior design license takes years and can cost tens of thousands of dollars. To be eligible for licensure, an applicant must first complete a combined six years of post-secondary education and apprenticeship under a state-licensed interior designer and pass a state-mandated exam administered by a private testing body.

Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech, from consulting with clients regarding their personal goals and tastes, to drawing up space plans, to offering advice about the selection and placement of fixtures, finishes and furnishings. The Supreme Court has repeatedly held that all of these kinds of activities constitute "speech" within the meaning of the First Amendment. Weighed against the immense burdens Florida's interior design law imposes on this speech is an utter dearth of evidence regarding the law's supposed benefits to the public. Indeed, attorneys for the state stipulated during the litigation they had no evidence that the unlicensed practice of interior design — which is the norm in 47 states — poses any bona fide threat to the public, or that Florida's licensing regime had benefited the public in any demonstrable way.

Read the rest here. For more on occupational licensing abuse, see here and here, and also check out Reason.tv's "Throw-Pillow Fight: Is your interior designer really putting your life at risk?"

Comments

[joe]

Come on. Of course the licensing requirements are silly, but if interior design is "speech," then what isn't?

[Brett L]

Exactly. This is why state-mandated licensing requirements are all bullshit.

[Jeffersonian]

I wouldn't go that far, but I'd say 95% of them are. The other 5% are legit insofar as they'd run up against public health issues.

[Privation Property = Licensing]

Privation Property = Licensing of genocide of Non-State society and invasion and occupation of Land.

[Brett L]

I know a bunch of nurses, licensing doesn't make the ones who don't give a shit give a shit or vice versa. I'm all for private licensure. "Our hospital on employs nurses certified by the AMA" is fine with me. If people want to use an uncertified lawyer or doctor that's fine. My only proviso is that any certification body can not be completely insulated from civil suits for fraud or negligence in certifying people.

[Jeffersonian]

I'm thinking along the lines of, say, a plumber who is connecting a sprinkler system to the city water system. A plumber who does that incorrectly or doesn't verify that it's operating correctly may cause pathogens to backflow into the water supply, unbeknownst to anyone until it's too late.

IOW, where occluded threats are present, I think it's reasonable to require that someone verifiably trained is doing the work. That's obviously not the case with interior decorators.

[Brett L]

And if the city were liable for his work as any other property owner would be, the city would make sure he had the training and skills to do it right. Licensure is a way of hiding from liability ("he had a license and followed procedure, therefore it isn't his fault the backflow happened").

[Jeffersonian]

That's just the thing, the plumber isn't a city employee, he's private. I'm assuming his liability insurance would cover it, assuming he had it. I think it's a minimal intrusion to require a demonstrated competence before allowing the guy to work on something that could sicken hundreds of people.

[mikey]

If he's licensed, then why does his work have to be inspected? If his work has to be inspected, why does he have to be licensed? Restraint of trade - that's why.

[Inspector]

That's my job!!!!

[PROFESSIONALINTERIORDESIGNER]

You are correct it is not the case with interior "decorators" but it is with interior designers that practice in commercial interiors where life safety is an issue.

[Pro Libertate]

Like attorney licensing. Why do we need it? I think some sort of private certification process would be very useful, but beyond that, what's the point? For ethics enforcement purposes, I suppose it might be necessary to be registered as an attorney somewhere (to prevent people offering advice who aren't holding themselves out to be attorneys from being held to that standard), but that's not the same thing at all.

The bar exam and CLE requirements are, as far as the actual practice of law are concerned, complete jokes.

[Doctor Whom]

The bar exam tests your ability to do well on the bar exam. CLE is state-mandated nap time.

[Pro Libertate]

I'm 100% sure I could've passed the bar just taking a bar prep course and skipping law school altogether.

[A Secret Band of Robbers]

Can you actually do that? It might be worth it if I could find another way to give the law students in my life an inferiority complex.

[Pro Libertate]

Well, you can't get licensed without a law degree (though there are, or at least were, a couple of states that still allowed apprenticing, I think), so they probably wouldn't let you sit for the bar. I suppose you might be able to get your hands on a past version of the bar exam and take that. Pass, and you win!

[Tonio]

Virginia is one of those states where you can "read the law" (apprentice yourself to a lawyer) and sit for the bar exam without going to law school. Not sure if you can do the bar exam without being sponsored by someone who's already "in" though.

[Mensan]

"I'm 100% sure I could've passed the bar just taking a bar prep course and skipping law school altogether."

That's exactly what Frank Abagnale claims he did.

[Isaac Bartram]

I'm not sure I have a problem with the courts having some system of qualifying attorney's who come before them to argue cases.

I do have a problem with having to have a license to fill in a few blank spaces on a standard form.

I guess technically you don't need to be a member of the bar to fill in a few blank spaces on a standard form. You just have to have one if you want to charge someone else to do it.

[Night Elf Mohawk]

Who qualifies the judges? The first case I argued featured a judge who didn't understand that testimony not offered for the proof of the matter asserted isn't hearsay.

[Paying Laywer Consumer]

That's my job!!!!

[Libertymike]

Why should the courts regulate attorneys?

First, there is no textual support in the federal constitution or the state constitutions of which I am conversant for the proposition that the judiciary has the power to license and regulate the practice of law.

Second, court licensure and regulation of the practice of law does not serve the principals upon which we seceded from the British Empire. IOW, we did not revolt so that the courts could monopolize any trade, particularly the practice of law.

Third, given the fact that power attracts scum, particularly prosecutors and judges, who in their right mind would agree that the fox guarding the henhouse is ever a good idea?

Fourth, public confidence in the legal profession continues to be below the mendoza line notwithstanding the "stewardship" of the courts.

[A Secret Band of Robbers]

I do physician education for a medical device company, and CME is actually counterproductive for us. We do a specialized dedicated MRI that works on somewhat different principles than most MRIs, so our radiologists need some special training before they use our machines.

But CME guidelines require all materials to be non-device specific. IOW, we next-gen manufacturers can't make CME materials that teach our rads how to use our machines, but they're required to spend a certain number of hours each year learning how to operate our competition's machines. Our major competitors are GE, Siemens, and Philips, who most certainly do not get special treatment on account of being politically influential. Nope, not at all.

If they want to learn how to operate our machines, they have to do it in addition to learning a bunch of stuff that is irrelevant or even counterproductive.

The worst part is that the busier a radiologist is--excluding the extremely dedicated and competent rads, of which there are many--the less likely they are to make the time to do additional training. It's a great way to maximize the number of patients exposed to bad training, and all in the name of improving training. Oops.

[joe]

No, it's why labeling every controversial behavior as "speech" is bullshit. And now the professions are "speech" too? The argument is counterproductive, as it erodes and obscures the principles of capitalism.

[swillfredo pareto]

The argument is counterproductive, as it erodes and obscures the principles of capitalism.

You are begging the question (actually two). Why, especially as it is practiced in this country, should I consider the erosion of capitalism a bad thing.

[joe]

Rational people know that capitalism (genuine capitalism) is a good thing. The history of the world proves it.

Capitalism "as it is practiced in this country" is not capitalism, but a mixed economy, closer to fascism than true capitalism.

[Aresen]

Don't use the phrase "rational people" when you mean "I".

Even for the least controversial subjects, "rational people" do not always agree and attempts to phrase an argument in those terms are simply aimed at defining your opponent's arguments as invalid.

I think capitalism is mostly a good thing, but I don't expect everyone to agree with that as a premise.

[Libertymike]

But you could reasonably expect most, if not all, rent seekers to agree with the premise that crony capitalism "is mostly a good thing".

[swillfredo pareto]

Capitalism "as it is practiced in this country" is not capitalism, but a mixed economy, closer to fascism than true capitalism.

I think you are making an honest argument but before proceeding I would recommend you learn the definitions of capitalism and socialism. Probably facism too because none of those words mean what you seem to think they do.

And you still have not explained how calling interior design speach erodes any of those things.

[joe]

I know the difference between capitalism and socialism and fascism. This isn't the place for a treatise on economics and politics, but capitalism is a politico-economic system, a social system based upon the recognition of individual rights--the right to life being the foundation of all the others--among which are (but not limited to) property rights and freedom of speech.

But one's freedom of speech is meaningless without property rights, without the right to action, the right to think and act and produce and trade with others on a voluntary, noncoercive basis. That's why arguing this case (wrongly) as a "speech" issue subverts the principles of capitalism. Talking about drapes is one thing, but without the right to produce and install them, that "freedom" is an empty promise. Freedom of speech without freedom of action is a sham.

[Tonio]

Pretty much anything is speech, not just controversial behavior. So the argument isn't counterproductive. Sorry.

[joe]

Pretty much anything is speech

Sleeping is speech? Eating is speech? Renting an apartment is speech? Thanks for adding your flippant and lazy analysis. You're part of the problem.

[Brian D]

I hope your Commenting on the Internet license is up to date, bub.

[.]

Liberty? Constitutional? You want to be free, you have to buy a license first.

[SIV]

Viewed through a First Amendment lens, the law is clearly unconstitutional. Virtually everything an interior designer does is speech

Same goes for lawyers. Why don't they try and overturn that licensing requirement too?

[Abdul]

Stop your crazy talk! The state-supported cartel puts money in my pocket!

[Matt R]

I think I can see licensing lawyers. Or at least make the case. The courts are in the public arena, run by the government. You can argue that one would need a standard set of knowledge to enter in to this arena and practice and play by the rules. The case for private licenses wouldn't really work here unless you talk about private courts and that is a whole other can of worms.

[Pro Libertate]

I don't agree. The courts can have rules that anyone acting in a representative capacity has to follow. You don't need licensing to do that.

[Matt R]

Yes but this would be complicated by the capacity of the person to defend themselves. A mentaly ill person wouldn't be able to know the rules and understand them properly. I can certainly see your argument but I think it gets more complicated. There aren't many other occupations that I agree need a license. Contracting and construction are the worse

[Pro Libertate]

But people can argue their case pro se, and if a client is incompetent, even an attorney is limited in what he can do.

[SIV]

Try offering "legal advice" without a license sometime. Don't go near a government courthouse. See how that works out for ya. Speech is illegal.

[P B]

WTF! Any recommendations on which country I should flee to? Gov Cuomo want DNA samples from everyone convicted of anything.

http://www.breitbart.com/artic....._article=1

[Aresen]

Unfortunately, that is getting damn near universal.

Some jurisdictions (the UK) are taking DNA samples from everyone arrested (and you can't get out of the database even if they never charge you.)

[I recall reading a story about the police in the UK getting virtually every male in a certain part of the UK to give a DNA sample so they could catch a criminal. When they finally caught the guy, they refused to destroy the data that they had obtained on completely innocent people.]

[Jeffersonian]

You know who else doesn't have interior design licensure requirements?

[Mensan]

Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New Jersey, New York, North Carolina, South Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, North Dakota, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia, Washington, Wisconsin, and Wyoming.

[Ice Nine]

But how else to prevent the horror of some charlatan using Mauve with Tropical Mango?

[Auric Demonocles]

Nuke the planet from orbit.

[Soon]

It's inevitable.

[Pro Libertate]

Terracotta and teal dominated Florida like a Nazi dictator for quite some time. Maybe that's what this is all about.

[H man]

Ug, I worked in a Crate and Barrel warehouse for a time. I got so sick of seeing teal and terra cotta items. There are other options people.

[Tonio]

Terra cotta and teal are so common because they're the colors of classical antiquity. These two colors, plus purple (reserved for the high and mighty) were the only dyes which were available using [AGRICULTURAL CITY-STATE] technology.

[Radioactive]

OMG what if the carpet doesn't match the drapes...choas will reign!!

[A Secret Band of Robbers]

If you're so worried about it, go find another strip club, asshole.

[CrackertyAssCracker]

It'd be cool if somebody started a business as "not an interior designer". But they basically did the same thing.

[Auric Demonocles]

I am a decorator of non-exteriors.

[Sparky]

You mean something like this?

[Abdul]

As someone raised in a family of physicians I have found my path to creativity by fusing my love for design with the influence of my family to heal and nurture.

Oh, so that's what happens when you fuck up the MCATS?

[jacob]

+100

[CrackertyAssCracker]

Good one. Could you call Feng Shui a "religious" belief system too? For bonus 1st amendment coverage?

[AlmightyJb]

Furniture moving consultant

[Aresen]

I doubt this will fly as a First Amendment challenge.

This is exactly what Milton Friedman warned about with regulators and a concentrated vs a diffuse interest.

[Tim]

Isn't this more of a Gay rights issue?

[Fist of Etiquette]

My dad made it through the war unscathed only to be maimed at home by incompetent feng shui.

[R C Dean]

I don't see the 1A issue.

Does the licensing requirement prohibit anyone from speaking about interior design without a license? Or does it prohibit getting paid to speak about interior design without a license?

I'm guessing its the latter. The 1A does not protect the right to get paid, only the right to speak.

[SIV]

So, under the 1sr amendment the State could mandate only unpaid journalists and free newspapers?

[SIV]

Unpaid clergy and no collection plate or tithing?

[SIV]

Unless you have the proper state-required guild license of course!

[Zeb]

If the first amendment were the whole constitution, then I suppose it could.

[R C Dean]

I could argue that journalists and newspapers are protected by the "free press" clause, not the "free speech" clause. That can be a hard distinction to maintain, though.

The whole idea of needing state permission to earn a living wasn't even on the Founder's radar, I don't think. It just didn't exist, at the time, AFAIK.

Even lawyers weren't really licensed as we think of it now; it was the courts that stated who could appear in a case as an attorney, not the legislature/some agency.

Making this a 1A issue just strikes me as proving too much, from a purely practical perspective. It would overturn virtually all licensing, which I don't think the courts will be willing to do. Hell, most of what primary care doctors do is speech, even including writing prescriptions.

[TrickyVic]

I'm not convinced that there is a federal issue. Absent that, the states can pass any law their Constituition allows.

[adam]

"it was the courts that stated who could appear in a case as an attorney, not the legislature/some agency."

That's still how it works. Lawyers are licensed by the highest court of their state. Often that function is handled by an agency or board that reports to the highest court, but the court is still in charge, administer discipline, etc. There are also Unauthorized practice of law statutes, which of course come from the legislature. Those are aimed more at counseling, not appearing in court.

[R C Dean]

ALright, I looked at the statute. Unlike many licensing statutes, it doesn't prohibit doing X for remuneration without a license, it prohibits "the practice of interior design." As drafted, it would prohibit you from doing any kind of interior design work on your own house.

So, I withdraw my objection. This statute prohibits speech, regardless of whether you are getting paid.

[TrickyVic]

How is the act of interior design, speech? You can talk about what you are going to do to your home all day long and you won't get arrested for that.

But I have an idea. Welcome to the first church of the holy interior designer.

[Pro Libertate]

Feng shui is more than halfway there.

[R C Dean]

How is the act of interior design, speech?

The "practice" of interior design is communication - drawings, plans, talking.

You can talk about what you are going to do to your home all day long and you won't get arrested for that.

Nonetheless, it falls within the scope of this statute.

[Mensan]

"How is the act of interior design, speech?"

According to the statute [emphasis added]:

"Interior design" means designs, consultations, studies, drawings, specifications, and administration of design construction contracts relating to nonstructural interior elements of a building or structure. "Interior design" includes, but is not limited to, reflected ceiling plans, space planning, furnishings, and the fabrication of nonstructural elements within and surrounding interior spaces of buildings.

[SIV]

It would overturn virtually all licensing

That is the attractiveness of the argument.

[adam]

Awesome. So we can ban those homeless people that the union pays to protest in front of my building all the time.

[AlmightyJB]

Who would pee on your plants then?

[adam]

Here's the 11th Circuit opinion- http://www.bloomberglaw.com/pu.....t_Opinion.

On brief skim, it doesn't look like being paid for doing interior design is a condition of requirement to get the license, not is it an exception. I doubt many people do interior design in commercial settings for free, but if they did, they would still need this license.

[J_L_B]

This is one where the expansive commerce clause is pushing itself into basic rights. The trend of commerce clause growth was slowed a bit in the 90's, but if it should return to pre-90's levels, we could see scenario where the commerce clause outranks the bill of rights.

[COMMERCE CLAUSE]

COMMERCE CLAUSE!!!!

SMASH!!!!!

[TrickyVic]

""The 1A does not protect the right to get paid, only the right to speak.""

Citizens United?

If giving money to someone is protected speech, then this issue isn't clear.

[R C Dean]

Citizens United protects your right to pay someone to speak. It does not give anyone a right to get paid to speak.

[Jon]

I didn't pay her to fuck me, I paid her to leave after I was done.

[EDG reppin' LBC]

Brilliant defense. 🙂

[Mr. FIFY]

Floridians are Concerned! about pet-grooming licensing, too:

http://www.bradenton.com/2012/.....ation.html

[Sparky]

"Pennsylvania, Massachusetts and California have tried to pass legislation for licensed dog groomers in the past, but it always falls apart before it even gets to any assembly," Reynolds said.

I bet there's a reason for that fuckwit.

[Isaac Bartram]

The funny thing in that article is the one case of someone upset by the lack of regulation of petgroomers simply went out into the marketplace and found someone who was able to demonstrate qualifications that she found satisfactory after she had a bad experience with her vet's groomer.

[P Brooks]

Viewed through a First Amendment lens, the law is clearly unconstitutional.

I'm sorry, but I don't see the First Amendment as the proper basis for challenging this sort of thing.

Of course, I think "That's quite possibly the stupidest thing I've ever heard" should be completely sufficient to get rid of most laws.

[H man]

+1

[TrickyVic]

""I think "That's quite possibly the stupidest thing I've ever heard" should be completely sufficient to get rid of most laws.""

Should be.

But government never thinks what it does is stupid, and plenty of people agree with the government. They are here to help you. Government wants you to suck its teat for nourishment. It gives them purpose and power.

[P Brooks]

I would prefer to see it fought as a taking under the Fifth. Let that laughter and pointing commence.

[35N4P2BYY]

Bonus points if they could contrive a 3rd Amendment argument.

[joshua corning]

Just call all interior design fung shway and protect it under freedom of religion.

[John Smith]

I don't see how speech is the way to end this law. But then again, when auctioneers, doctors, plumbers, electricians, salonists, barbers, real estate brokers and many other professions are licensed in many states, what other way can you end the insanity?

[Matt R]

How easy would it be to skirt this law by saying you "Indoor and outdoor home advisor" or something ridiculous like that.

[adam]

Because the ban is on doing certain acts, not holding oneself out as an "Interior Designer."

[Matt R]

True. Well there are tasks a ID does that crosses over with carpenters and painters. Painting walls, hanging a shelf. Wouldn't these things cross each other? I think it just reveals how ridiculous there whole thing is

[AlmightyJb]

OT... Gingrich thinks WOD not violent enough. Like we needed another reason to hate him.

http://www.rawstory.com/rs/201.....t-growers/

[Matrix]

I think it is more likely that the Founders would have a violent reaction to him and his ilk.

[Zeb]

This is a small point, and does not justify the licensing requirements. But interior designers and interior decorators are not necessarily the same thing.

[Radioactive]

AH as in different flavored douche?

[SIV]

Interior designers are more like architects.Interior decorators are more like aesthetic consultants.

[Almanian]

It scares and - at the same time - intrigues me that you are able to make this distinction.

[SIV]

One requires more geometry than the other.

[Mensan]

"Interior designers are more like architects.Interior decorators are more like aesthetic consultants."

Florida Statute 481.203 disagrees:

"Interior design" includes, but is not limited to, reflected ceiling plans, space planning, furnishings ... "Interior design" specifically excludes the design of or the responsibility for architectural and engineering work ...

[AlmightyJB]

You just can't start letting poor people make money. Before you know it they start showing up at the same stores and restaurants as you, then they move to your neigborhood and put their kids in the same schools as yours. There's good reasons for these requirements. Only "certain people" should be allowed to succeed.

[Pro Libertate]

I have a workaround. Do the "interior" design work before the roof is put on. Not interior, bitches!

[Radioactive]

I have a better one, get these ass hats to mind their own fucking business...preferably with a large caliber handgun

[Almanian]

Nice

[wylie]

Is that topologically valid? A concave shape still has an interior, doesn't it? I tried to answer my own question by looking at wikipedia and my head asploded.

[Pro Libertate]

Don't over think this--the people you're trying to deceive aren't going to go there.

[Mensan]

Agreed. Thinking isn't their forte.

[joshua corning]

The Supreme Court has repeatedly held that all of these kinds of activities constitute "speech" within the meaning of the First Amendment.

I always thought there was a huge window in classifying large portions of economic activity as a form of expression and therefor protected under freedom of speech.

I am glad to see this legal theory is being tested.

[mr lizard]

Have you seen our interiors down here? We need all the licensed help we can get.

[Aresen]

Nothing a good hurricane season won't clear up.

[Chris Birkentall]

a picture is worth a thousand words- your graphic is so apt to this egregious attempt at deregulation of our profession. Last I looked, most professions are the ones behind the goal of state regulation ( thereby becoming a self-regulated group), so therefore it it the professions right to their own free speech that regulates them. In a perverted way, part of me wants to see this move forward, and press on as a way to deregulate lawyers, doctors, and architects. After all, one can represent oneself if charged in a court of law; one can diagnose themselves of ailments; and one can build their own home (and even design it). Not saying that they won't be found guilty, or die of cancer or have the whole house fall down thereby killing or maiming someone ( at which point they would need a doctor and a lawyer but maybe not an architect but an engineer)

[Chris Birkentall]

This comment is in regards to the posting by ProfessionalInteriorDesigner on that blog. It wonderfully shows a stick figure beating his head into a wall. Some things are so pointless.