Upon further scrutiny it appears that both sides of the lawsuit can legitimately claim victory in Judge Hinkle’s recent opinion (here as posted by the Florida Chapter of the American Institute of Architects);

http://www.aiafla.org/upload_documents/FL_Decision_2-4-10.pdf

What does that mean? Well my non-legal (read I am not a lawyer but I play one on the internet) assessment is this.

1. Interior decorators can claim that they are interior designers if they are egnaged in providing residential decorating services. The issue of decorators providing decorating services in a non-residential setting is less clear but it appears that as long as they are not providing interior design services (such as table layouts for wedding receptions, hanging artwork or other non-building permitable arrangement of F.F.& E. or minor finish selections) they can go about their business. This is a semantic victory for the Anti-Regulation side.

2. Practitioners of commercial interior design involving “non-structural” elements must still be licensed to do so in the State of Florida. A tenuous victory for the Pro-Regulation side. One they did not lose the entire battle and two Judge Hinkle provided some interesting opinions on the value of interior design services while illuminating the issue of our ambiguous identity.  HELLO ASID & IIDA!

If you are so inclined I have put together the following crib notes of Judge Hinkle’s opinion.  What is important is that his opinion will provide precedent for future opinions and rulings in other states.

RE. General Issues Regarding the Practice Act

Florida’s ban on the unlicensed practice of nonresidential interior design, as properly construed, easily passes muster under the federal Constitution.

 In sum, the statute prohibits an unlicensed person from providing designservices to a client relating to nonstructural interior elements of a nonresidential building or structure. It sweeps no more broadly than that.

 Licensing interior designers may or may not be sound policy, but federalcourts do not sit to review the wisdom of state laws or to prohibit state legislatures from adopting laws that are unsound, unnecessary, or even silly, so long as they are not unconstitutional.

RE. Violation of the 1^st Amendment

 But contrary to the plaintiffs’ assertion, the provision requiring a license to practice Case 4:09-cv-00193-RH-WCS Document 74 Filed 02/04/10 Page 12 of 27 nonresidential interior design does not implicate this principle.

 It is true of course that practicing interior design involves speech. Aninterior designer consults with the client and may prepare drawings or studies in the course of the work. This does not mean, however, that the ability to practice interior design without a license is protected by the First Amendment. If it were, then the laws regulating many professions—including law, medicine, and engineering—would be subject to heightened scrutiny under the First Amendment. They are not.

The Florida requirement for a license is a professional regulation, andits effect on speech is incidental. The license requirement is not subject to First Amendment scrutiny.

RE. Plaintiffs contention that the Florida ID Practice Law unduly interferes with interstate commerce (several non-Florida based interior designers have been cited for practicing ID in Florida without a license)-

The Florida licensing statute is valid under Pike. The law promotescompliance with fire and accessibility codes, helps reduce indoor pollution, and protects consumers from incompetent interior designers. See Fla. S. Comm. On Approp., CS for CS for SB 127 (1988) Staff Analysis 1-2 (May 18, 1988) (citing evidence of the dangers posed by incompetent interior designers). And even if the statute burdens interstate commerce to a degree (which is not at all clear), the burden is not “clearly excessive” when compared to the legitimate local interests. The statute does not violate the dormant Commerce Clause.

 RE. The Right to Practice Free From State Regulation-  

The Supreme Court has held that the Fourteenth Amendment’s Privileges or Case 4:09-cv-00193-RH-WCS Document 74 Filed 02/04/10 Page 20 of 27 Immunities Clause protects a limited set of rights. See Slaughterhouse Cases, 83 (16 Wall.) 36, 21 L. Ed. 394 (1872); Saenz v. Roe, 526 U.S. 489, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999). The right to engage in an occupation free from state regulation is not one of them. See Madden v. Kentucky, 309 U.S. 83, 91, 60 S. Ct. 406, 84 L. Ed. 590 (1940); see also Nebbia v. New York, 291 U.S. 502, 527-28, 54 S. Ct. 505, 78 L. Ed. 940 (1934) (“The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases.”). And even if the Privileges or Immunities Clause applied, it would not invalidate this statute. The plaintiffs are not entitled to relief under the Privileges or Immunities Clause.

RE. The Semantics of “INTERIOR DESIGN” & “INTERIOR DESIGNER”

The state’s only argument in support of § 481.229(6)(a) is that it is misleading for a residential interior designer to call herself an “interior designer.” Not so. A person who trains dogs is a dog trainer, even if she trains only poodles. A person who grows apples is an apple grower, even if she grows only Granny Smiths. And a person who provides interior-design services is an interior designer, even if she works only on residences. There is nothing misleading about a Florida residential interior designer calling herself an “interior designer.”

It is not misleading for an unlicensed person who lawfully practices residential interior design to refer to herself as an “interior designer,” regardless of how the statute defines the term. Surely few if any prospective customers know the state definition of “interior designer.” Surely few customers or other members of the public use the term “interior design” in the restricted way it is defined in the statute, and few know that to provide nonresidential “interior design” services in Florida, one must have a license.

 Moreover, even if a customer was sophisticated enough to know the technical definition of “interior design” and to know that nonresidential interior design work requires a license, and even if the customer cared, the customer presumably would look for a representation that the advertiser was licensed, or simply ask. The notion that such a person would read the words “interior designer,” and understand this as a representation that the advertiser was licensed, is a stretch.

RE. Final Judgment

The Florida statute requiring a person to obtain a license in order to provide nonresidential “interior design” services—as that term is properly construed—is constitutional. But the statute barring a person who provides lawful residential interior-design services without a license from advertising herself as an “interior designer” violates the First Amendment. Accordingly,

IT IS ORDERED:

1. It is declared that § 481.223(1)(b) is constitutional.

2. It is declared that § 481.223(1)(c) and the proviso in § 481.229(6)(a)

prohibiting advertising or representing oneself as an interior designer are

unconstitutional.

KUDOS TO JUDGE HINKLE FOR A SUCCINCT AND NON-LEGALISTIC DEFINITION AND DESCRIPTION OF HIS FINDINGS! PROFESSIONAL INTERIOR DESIGNER LOVES THE GRANNY SMITH ANALOGY!!