In The United States Court of Appeals For The Eleventh Circuit

Case: 10-11052 Document: 01116039075 Page: 1 RECORD NO. 10-11052-EE In The United States Court of Appeals For The Eleventh Circuit EVA LOCKE, PATRICIA ANNE LEVENSON, BARBARA VANDERKOLK GARDNER, NATIONAL FEDERATION OF INDEPENDENT BUSINESS, v. Plaintiffs Appellants, JOYCE SHORE, JOHN P. EHRIG, AIDA BAO-GARCIGA, ROASSANA DOLAN, WANDA GOZDZ, et al., Defendants Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA REPLY BRIEF OF APPELLANTS William H. Mellor Daniel J. Woodring Clark M. Neily III WOODRING LAW FIRM Paul M. Sherman 3030 Stillwood Court INSTITUTE FOR JUSTICE Tallahassee, Florida 32308 901 North Glebe Road, Suite 900 (850) 567-8445 Arlington, Virginia 22203 (703) 682-9320 Counsel for Appellants Counsel for Appellants THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA 23219 (804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

Case: 10-11052 Document: 01116039075 Page: 2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii TABLE OF RECORD REFERENCES IN THE BRIEF... vii SUMMARY OF ARGUMENT...1 ARGUMENT AND AUTHORITIES...2 I. Florida s Interior Design Law Substantially Burdens And Discriminates Against Interstate Commerce With No Offsetting Public Benefits...2 A. Florida s Interior Design Law Is Discriminatory...3 B. Florida s Interior Design Law Is Unduly Burdensome...4 II. The Speech, Drawings, And Other Expressions That Make Up The Practice Of Interior Design Are Protected By The First Amendment...7 III. There Is No Categorical Exemption For Interior Decorator Services Under Florida s Interior Design Law...11 IV. When Given Its Full Scope, Florida s Interior Design Law Fails Even Rational Basis Scrutiny...17 CONCLUSION...21 i

Case: 10-11052 Document: 01116039075 Page: 3 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE ii

Case: 10-11052 Document: 01116039075 Page: 4 TABLE OF AUTHORITIES Page(s) CASES Allstate Ins. Co. v. Abbott, 495 F.3d 151 (5th Cir. 2007)...5 Asociacion de Empleados del Area Canalera v. Pan. Canal Comm n, 329 F.3d 1235 (11th Cir. 2003)...17 Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)...5 Cachia v. Islamorada, 542 F.3d 839 (11th Cir. 2008)...3 Citizens United v. FEC, U.S., 130 S. Ct. 876 (2010)...10 Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)...20 Crooks v. Harrelson, 282 U.S. 55, 51 S. Ct. 49 (1930)...14 De Weese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987)...18 iii

Case: 10-11052 Document: 01116039075 Page: 5 Diamond Waste, Inc. v. Monroe County, 939 F.2d 941 (11th Cir. 1991)...6, 7 Fitzgerald v. Racing Ass n of Cent. Iowa, 539 U.S. 103, 123 S. Ct. 2156 (2003)...19 Ford Motor Co. v. Tex. Dept. of Transp., 264 F.3d 493 (5th Cir. 2005)...5 Gross v. FBL Fin. Servs., 557 U.S., 129 S. Ct. 2343 (2009)...16 Heller v. Doe, 509 U.S. 312, 113 S. Ct. 2637 (1993)...19 Island Silver & Spice, Inc. v. Islamorada, 542 F.3d 844 (11th Cir. 2008)...3 Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997)...14 National Revenue Corp. v. Violet, 807 F.2d 285 (1st Cir. 1986)...3 Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S. Ct. 844 (1970)...4, 5, 6, 7 R & M Oil & Supply, Inc. v. Saunders, 307 F.3d 731 (8th Cir. 2002)...7 iv

Case: 10-11052 Document: 01116039075 Page: 6 Service Machine & Shipbuilding Corp. v. Edwards, 617 F.2d 70 (5th Cir. 1980)...5, 6, 7 Sinclair v. De Jay Corp., 170 F.3d 1045 (11th Cir. 1999)...17 State v. Lupo, 984 So.2d 395 (Ala. 2007)...2, 11, 15 United States v. Canals-Jimenez, 943 F.2d 1284 (11th Cir. 1991)...11 United States v. Crape, No. 09-12470, 2010 U.S. App. LEXIS 8212 (11th Cir. Apr. 21, 2010)...14 United States v. Nat l Treasury Emps. Union, 513 U.S. 454, 115 S. Ct. 1003 (1995)...10 United States v. Playboy Entm t Grp., 529 U.S. 803, 120 S. Ct. 1878 (2000)...10 United States v. Stevens, U.S., 130 S. Ct. 1577 (2010)...9, 15 Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001)...9 Vill. of Schaumburg v. Citizens for a Better Env t, 444 U.S. 620, 100 S. Ct. 826 (1980)...8 v

Case: 10-11052 Document: 01116039075 Page: 7 Walgreen Co. v. Rullan, 405 F.3d 50 (1st Cir. 2005)...3, 4 W. Lynn Creamery v. Healy, 512 U.S. 186, 114 S. Ct. 2205 (1994)...19 CONSTITUTIONAL PROVISION U.S. CONST. amend. I... passim STATUTES Fla. Stat. 481.201...16 Fla. Stat. 481.203(8)...14 Fla. Stat. 481.223(2)...10 Fla. Stat. 481.229(6)(a)...20 Fla. Stat. 481.229(6)(b)...11 Fla. Stat. 713.79...13, 16 Fla. Stat. 775.082(4)(a)...10 OTHER AUTHORITY Joyce Shore Interiors, Inc., Our Services, www.joyceshore.com/pages/ services.html (last visited June 14, 2010)...12 vi

Case: 10-11052 Document: 01116039075 Page: 8 TABLE OF RECORD REFERENCES IN THE BRIEF Docket No. Document Page No. in Brief (Tab) 54-26 Exhibit 4 to Declaration of Clark Neily: Excerpts from the Transcript of Deposition of Joyce Shore 12 54-27 Exhibit 5 to Declaration of Clark Neily: Table of Selected Interrogatories and Requests for Admission From the Plaintiffs and Defendants Responses 5, 12, 15 54-37 Exhibit 15 to Declaration of Clark Neily: Letter from Mary Helena of Smith, Thompson, Shaw & Manusa to Steve Odland, CEO of Office Depot 5 54-38 Exhibit 16 to Declaration of Clark Neily: Letter from Mary Helena of Smith, Thompson, Shaw & Manusa to Ronald L. Sargent, Manager, Staples The Office Superstore, L.L.C. 5 54-39 Exhibit 17 to Declaration of Clark Neily: Letter from Mary Helena of Smith, Thompson, Shaw & Manusa to Sam K. Duncan, CEO of OfficeMax Incorporated 5 54-40 Exhibit 18 to Declaration of Clark Neily: Press Releases from the Kelly Wearstler Action 4 vii

Case: 10-11052 Document: 01116039075 Page: 9 54-41 Exhibit 19 to Declaration of Clark Neily: Excerpts from the Administrative Proceeding against Juan Montoya by the Florida Board of Architecture and Interior Design 4 65 Joint Pretrial Stipulation 5 68-5 Exhibit 4 to Declaration of Paul Sherman: Excerpts of the Transcript of Deposition of Lisa K. Waxman, Ph.D. 13 71-9 Exhibit 6 to Declaration of Clark Neily: Excerpts of the Transcript of Deposition of David K. Minacci 5 74 Opinion on the Merits 7, 15 viii

Case: 10-11052 Document: 01116039075 Page: 10 SUMMARY OF ARGUMENT Whether read broadly or narrowly, Florida s interior design law imposes substantial, unjustifiable burdens on free speech and interstate commerce. In 47 states, there are no laws restricting the practice of interior design, and no problems as a result. It is abundantly clear from the record in this case and from legislative analyses in other states that the unlicensed practice of interior design presents no genuine public welfare concerns of any kind. See, e.g., IDPC amicus at 19-23. Controlling precedent under the dormant Commerce Clause and the First Amendment requires the government to support regulations with actual evidence of public benefit. The state fails to present such evidence because there is none. Instead, the state attempts to salvage the law by urging an artificial construction that is flatly contradicted by the state s discovery responses, the testimony of its own witnesses (including a professor of interior design from Florida State University retained by the state as an expert), common usage within the industry, and statutory text. The state s argument fails for three basic reasons. First, as explained in parts I and II below, even under the state s implausible construction, Florida s interior design law substantially and unjustifiably burdens interstate commerce and free speech. Second, as explained in part III, the state s attempt to save the law by positing a categorical distinction between interior decorator services and the state-licensed practice of interior design is a familiar 1

Case: 10-11052 Document: 01116039075 Page: 11 ploy that is no more persuasive here than when the Alabama Supreme Court rejected it in State v. Lupo, 984 So.2d 395, 404 (Ala. 2007). Finally, the state concedes that the law would indeed raise substantial constitutional issues if it were construed as broadly as the Appellants say it should be. Answer Br. at 13. What the state fails to note, however, is that the broad construction it attributes to the Appellants is in fact the same understanding uniformly shared by members of the interior design community and even the State Board of Architecture and Interior Design, at least until it abandoned that construction in favor of its current litigating position. Florida s interior design law is every bit as broad as its sweeping language indicates, and the state s attempt to have the courts rewrite the law in order to minimize its constitutional defects is both unworkable and improper under controlling case law. ARGUMENT AND AUTHORITIES I. Florida s Interior Design Law Substantially Burdens And Discriminates Against Interstate Commerce With No Offsetting Public Benefits. The state argues that Florida s interior design law imposes no burden on interstate commerce and does not discriminate in favor of Florida residents. Answer Br. at 5, 22-26. Those claims are not only implausible (since the whole point of the law is to restrict the local market to Florida-licensed designers only), they also ignore both the authorities cited in the Appellants brief and the discriminatory grandfathering provisions documented by the Appellants and 2

Case: 10-11052 Document: 01116039075 Page: 12 amicus Office Furniture Dealers Alliance ( OFDA ). Opening Br. at 38-41; OFDA Br. at 19-24. As explained below, that silence is deafening. A. Florida s Interior Design Law Is Discriminatory. The state does not challenge the legislative history recounted on page five of Appellants opening brief and on pages 20-22 of OFDA s amicus brief. This includes a grandfather provision that allowed persons who had held themselves out as an interior designer and maintained a municipal or county occupation license in Florida for just one year to become licensed, while requiring all other persons to demonstrate six years of experience as the principal of an interior design firm. Id. at 20-21. The undeniable effect of that provision was to confer the right to provide [interior design] service[s]... upon a class largely composed of [Florida] citizens, which is both discriminatory and unconstitutional under the dormant Commerce Clause doctrine. National Revenue Corp. v. Violet, 807 F.2d 285, 290 (1st Cir. 1986); Walgreen Co. v. Rullan, 405 F.3d 50, 56-58 (1st Cir. 2005). The First Circuit s reasoning in National Revenue and Rullan is fully consistent with this Court s discriminatory-impact case law, including Island Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 846-47 (11th Cir. 2008) and Cachia v. Islamorada, 542 F.3d 839, 843 (11th Cir. 2008). The state neither addresses those cases in its brief nor provides any explanation for the discriminatory grandfather clause that enabled Florida residents to effectively sidestep the burdensome 3

Case: 10-11052 Document: 01116039075 Page: 13 licensing requirements that applied to others. See Rullan, 405 F.3d at 55 (noting that the Act, as amended, excused an almost entirely local class of pharmacies from the certificate requirement ). Accordingly, even under the state s proposed revision, Florida s interior design law unconstitutionally discriminates against interstate commerce. B. Florida s Interior Design Law Is Unduly Burdensome. Even if Florida s licensing of interior designers did not discriminate against interstate commerce, as it plainly does, the law would still be subject to balancing under the Pike test, which asks the following three questions: Does the law burden interstate commerce? Does that burden substantially outweigh the putative local benefits? And could the state s interest be promoted as well with a lesser impact on interstate activities? Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. at 847 (1970). As demonstrated on pages 42-49 of Appellants opening brief, the answer to all three questions is yes, and the state s brief provides no meaningful rebuttal. Though the state fails to acknowledge it, the very point of Florida s interior design law is to restrict the market to Florida-licensed designers only. Thus, the state has vigorously enforced its law against non-resident interior designers and has even publicized those efforts in press releases. R-2-54-40, -41. The state also commenced enforcement actions against three of the nation s largest office 4

Case: 10-11052 Document: 01116039075 Page: 14 furniture dealers for offering illegal space planning services, R-2-54-37, -38, -39, although it now seeks to disclaim those actions (and the contrary testimony of its prosecuting attorney, R-4-71-9 at 145.7-146.12) on the premise that they were only commenced at the behest of the Plaintiffs. Answer Br. at 27. In reality, of course, the Appellants have no control over Florida s Board of Architecture and Interior Design, which makes its own decisions about when to initiate enforcement actions and against whom. Because Florida s interior design law plainly does impose substantial burdens on interstate commerce, the state must demonstrate the existence of local benefits sufficient to justify those burdens. But the state admits it has no evidence of such benefits. R-2-54-27 at 4 (No. 12); R-3-65 at 8 16. Lacking evidence of any actual public benefit, the state contends that Pike balancing may be satisfied by purely hypothetical assertions of public benefit. Answer Br. at 25 (citing Allstate Ins. Co. v. Abbott, 495 F.3d 151, 164 (5th Cir. 2007) and Ford Motor Co. v. Tex. Dept. of Transp., 264 F.3d 493, 503 (5th Cir. 2005)). But that argument is foreclosed by Service Machine & Shipbuilding Corp. v. Edwards, 617 F.2d 70 (5th Cir. 1980), which remains binding precedent in this Circuit. 1 In that case, the former Fifth Circuit invalidated a Louisiana-parish 1 See Bonner v. City of Prichard, 661 F.2d 1206, 1209-10 (11th Cir. 1981) (holding that Fifth Circuit decisions handed down before Sept. 30, 1981, remain binding precedent in this Circuit until overruled en banc). 5

Case: 10-11052 Document: 01116039075 Page: 15 ordinance that required itinerant laborers who travelled to the parish for employment to register their identity with the local authorities. 617 F.2d at 71-72 & nn.1-2. Judge Tjoflat explained that a court applying Pike balancing must examine the benefits that supposedly result from the local law, and not rely merely on the assertion of an accepted local interest. Id. at 75 (emphasis added). Thus, while the parish asserted an interest in crime control, the court examined the evidence, found the ordinance s crime-control benefits somewhat illusory, and concluded that it therefore failed Pike balancing. Id. at 76. The state fails to address Service Machine, even though it is a controlling decision discussed at some length in Appellants opening brief. See, e.g., Opening Br. at 43-44. Finally, besides the absence of any demonstrable local benefits, it is clear that Florida s asserted interests in public safety could be promoted as well with a lesser impact on interstate activities, Pike, 397 U.S. at 142, 90 S. Ct. at 847 as evidenced in part by the fact that 47 states do not regulate the practice of interior design and have experienced no documented problems as a result. In response, the state claims that this lesser-impact inquiry applies only in discriminatory-impact cases. Answer Br. at 28. But that assertion contradicts the express language of Pike, quoted above, and this Court s application of that inquiry, both in Diamond Waste, Inc. v. Monroe County, 939 F.2d 941, 944-46 (11th Cir. 1991) (noting the availability of less restrictive alternatives under Pike) and Service Machine, 617 6

Case: 10-11052 Document: 01116039075 Page: 16 F.2d at 75-76 (considering the availability of less burdensome schemes and other alternatives open to the parish in applying Pike). See also R & M Oil & Supply, Inc. v. Saunders, 307 F.3d 731, 737 (8th Cir. 2002) (rejecting discriminatory-impact claim, applying Pike, and considering whether the local interest involved could be promoted as well with a lesser impact on interstate activities (quoting Pike, 397 U.S. at 142, 90 S. Ct. at 847)). 2 II. The Speech, Drawings, And Other Expressions That Make Up The Practice Of Interior Design Are Protected By The First Amendment. Apart from a few short paragraphs at the end, the state s entire First- Amendment argument is lifted verbatim from the district court s opinion. Compare Answer Br. at 14-18 with District Ct. Op., R-4-74 at 12-16. Appellants have already addressed the district court s First Amendment analysis in their opening brief and will not repeat those arguments here. The only new argument the state offers regarding the First Amendment is its assertion that the Appellants have denigrate[d] the interior design profession by asserting that the interior designer does nothing of consequence in his relationship with the client. Answer Br. at 18. That is a rather puzzling accusation, because in 2 The state s suggestion that Diamond Waste was actually a discriminatory-impact case is based on a misleading description of the challenged waste-hauling regulation as prohibiting interstate waste from entering the county s landfill. Answer Br. at 28. In reality, the court determined that the regulation treats interstate waste and intrastate waste on an equal basis and applied Pike balancing including the lesser-impact inquiry precisely because there was no discriminatory impact. Diamond Waste, 939 F.2d at 944 (emphasis added). 7

Case: 10-11052 Document: 01116039075 Page: 17 fact it is the state that seeks to truncate the term interior design by denying what everyone in and out of the industry knows to be true: namely, that interior design is a highly artistic, expressive occupation in which practitioners are valued not simply or even primarily for their technical know-how, but rather for their aesthetic taste and sense of style. By stripping all aesthetic considerations from its definition of the term interior design, id. at 19, the state reduces interior designers to mere technicians, which they certainly are not. See, e.g., IDPC Br. at 6-11. The key conceptual mistake by the state and its amici is their failure to appreciate the fact that virtually everything an interior designer does from soliciting information and ideas from a client about the project, to preparing preliminary renderings, to suggesting and specifying furnishings, to preparing formal design drawings is speech. And because each of those activities (including the creation of so-called technical drawing[s], Answer Br. at 12) involves the communication of information, they all implicate speech interests... within the protection of the First Amendment. Vill. of Schaumburg v. Citizens for a Better Env t, 444 U.S. 620, 632, 100 S. Ct. at 833 (1980). That some of this speech may involve the application of specialized knowledge does not denude it of First Amendment protection. As the Supreme Court recently emphasized, as a general matter, the First Amendment means that 8

Case: 10-11052 Document: 01116039075 Page: 18 government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. United States v. Stevens, 130 S. Ct. 1577, 1584 (2010) (emphasis added, internal quotations and citation omitted). Contrary to the implication of the state s brief, there is no general expert speech exception to the First Amendment, and drawings do not lose their First Amendment protection simply because they are technical or detailed. See, e.g., Universal City Studios v. Corley, 273 F.3d 429, 451 (2d Cir. 2001) (contrasting computer code with blueprints by noting that the latter are entirely speech ). The state s suggestion that there is a blanket First-Amendment exemption for technical drawings or professional speech is further undermined by United States v. Stevens, in which the Supreme Court rejected the government s argument that depictions of animal cruelty should be categorically excluded from the First Amendment, like child pornography or defamation. The Chief Justice emphasized that federal courts do not enjoy a freewheeling authority to declare new categories of speech outside the scope of the First Amendment, 130 S. Ct. at 1585-86, and may only do so when the speech in question has been shown to be historically unprotected. Id. at 1586. In this case, neither the state nor its amici have shown that interior-designrelated speech has been historically unprotected. To the contrary, the Appellants and their amici have shown that such speech because it is integral to a 9

Case: 10-11052 Document: 01116039075 Page: 19 fundamentally artistic endeavor is a very poor candidate for categorical exclusion from the First Amendment. Opening Br. at 28-29; IDPC Br. at 6-16. The state s only response is to cite a handful of cases upholding licensing requirements for lawyers and accountants, Answer Br. at 15-16, while offering no persuasive explanation for how the rationale in those cases could possibly extend to an artistic vocation like interior design. Because interior design even under the state s restrictive definition plainly involves speech protected by the First Amendment, the only relevant question is whether Florida s law burdens that speech. Clearly it does, both by requiring a license to speak and by criminally punishing unlicensed speech. Fla. Stat. 481.223(2), 775.082(4)(a) (violation of interior design law is a first-degree misdemeanor punishable by up to one year in jail); see also Citizens United v. FEC, 130 S. Ct. 876, 896-97 (2010) (noting that both permitting processes and the threat of criminal sanctions burden speech). And because Florida s interior design law burdens speech based on its content, it is subject to strict scrutiny. United States v. Playboy Entm t Grp., 529 U.S. 803, 813, 120 S. Ct. at 1886 (2000). Thus, the state bore the burden in this case of demonstrating that the harms it alleges are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. United States v. Nat l Treasury Emps. Union, 513 U.S. 454, 475, 115 S. Ct. at 1017 (1995). Because neither the state nor its 10

Case: 10-11052 Document: 01116039075 Page: 20 amici have produced even a scintilla of evidence that the unlicensed practice of interior design poses a genuine threat to the public, the state has necessarily failed to carry this burden. III. There Is No Categorical Exemption For Interior Decorator Services Under Florida s Interior Design Law. Faced with a constitutionally suspect licensing law devoid of any evidentiary or commonsense support, the state deploys the same argument Alabama did in a similar case several years ago: namely, the invention of a categorical distinction between regulated interior design services and (supposedly) unregulated interior decorator services. The Alabama Supreme Court found that argument unpersuasive in State v. Lupo, 984 So.2d 395, 403-04 (Ala. 2007), and it fares no better here. The most glaring problem with the proposed decorator-designer dichotomy is that it renders the statute s retail-sale exemption superfluous, just as it did in Lupo. Fla. Stat. 481.229(6)(b); Lupo, 984 So.2d at 404 ( [W]e reject the Board s narrow reading of the definition [of the practice of interior design, ] because the Board s reading would render portions of the retail-sale exemption superfluous. ); cf. United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir. 1991) (noting that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage ). Appellants made this point on page 15 of their opening brief, and it remains unanswered. 11

Case: 10-11052 Document: 01116039075 Page: 21 Moreover, the undisputed evidence in this case establishes that industry members and the State Board of Architecture and Interior Design have always understood interior decorator services to be a subset of interior design and not a categorically distinct concept or set of activities. Thus, for example, the Board s Chair, Joyce Shore who refers to herself as an interior designer, not a decorator devotes much of her practice to the selection of furniture, art, and accessories to create a particular atmosphere in a home or office. R-2-54-26 at 18-22. If interior decorating services in fact constituted a wholly discrete set of activities, as the state now posits, it would be highly misleading for Ms. Shore to hold herself out as an interior designer and to describe as her areas of design expertise the selection of art, antiques, furnishings, wall coverings, window treatments, and flooring, as she does on her website. 3 Likewise, before adopting its contrary litigating position, the state initially conceded that an interior design license is required to prepare drawings relating to such items as flooring, wallcoverings, file cabinets, shelving, and furniture including the placement of chairs and couches in a hotel lobby. R-2-54-27 at 7-8 (Nos. 15, 16, 19-21, 25). That is also the view of the state s retained expert, professor Lisa Waxman, who confirmed that Florida s interior design law covers furnishings, cabinets, millwork, interior doors, flooring, and window treatments. R-3-68-5 at 134-135. 3 Joyce Shore Interiors, Inc., Our Services, www.joyceshore.com/pages/ services.html (last visited June 14, 2010). 12

Case: 10-11052 Document: 01116039075 Page: 22 Finally, the state s assertion of a categorical distinction between aesthetic decorator services and purely technical interior design cannot be reconciled with the legislature s understanding of an interior designer as a person who, in the course of his or her services, might provide a client with furniture..., area rugs, wall hangings, photographs, paintings [and] other works of art. Fla. Stat. 713.79. In the face of that language, the notion that the Florida legislature understood and intended the term interior design to encompass only technical, non-aesthetic expression and activity is insupportable. That point is further reinforced by the recognition by one of the state s amici that, in the minds of the public, the terms interior design and interior decoration are used interchangeably. NCIDQ Br. at 2. Without addressing any of those points textual surplusage, the contrary fact record, and direct evidence of contrary legislative understanding the state seeks to bolster its decorator-designer dichotomy by resorting to several interpretive canons, none of which can bear the weight of the state s implausible litigating position. Absurd results. The state contends that Appellants literal interpretation of Florida s interior design law should be rejected because it produces absurd results. For example, the state argues that even though the statute specifically defines 13

Case: 10-11052 Document: 01116039075 Page: 23 interior design as including consultations, drawings, and specifications relating to furnishings, Fla. Stat. 481.203(8), it would be patently absurd to conclud[e] that a person would need a license to choose a couch for a doctor s office waiting room. Answer Br. at 10. But the state misunderstands the absurdresults doctrine. It is true that [this Court] may depart from the text of a statute when its plain meaning produces absurd or futile results... plainly at variance with the policy of the legislation as a whole. United States v. Crape, No. 09-12470, 2010 U.S. App. LEXIS 8212, at *17 (11th Cir. Apr. 21, 2010) (internal quotations omitted, alteration in original). Still, courts rarely make that departure because the result produced by the plain meaning canon must be truly absurd before this principle trumps it. Otherwise, clearly expressed legislative decisions would be subject to the policy predilections of judges. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir. 1997). To justify a departure from the letter of the law upon that ground, the absurdity must be so gross as to shock the general moral or common sense. Crooks v. Harrelson, 282 U.S. 55, 60, 51 S. Ct. at 50 (1930). Thus, the question is not whether licensing people who select couches or prepare space plans showing their proposed location in an office is absurd in the colloquial sense, but rather whether the legislature could not possibly have intended the result commanded by the law s plain language. Florida s decision to 14

Case: 10-11052 Document: 01116039075 Page: 24 license specifications and drawings 4 relating to couches and other furnishings in commercial spaces may well seem ridiculous as was Alabama s interior design law in requiring a license to select paint colors and throw pillows, see Lupo, 984 So.2d at 402 but it is not absurd in the specialized sense relevant here. Constitutional avoidance. Appellants will not dwell long on the state s passing reference to the doctrine of constitutional avoidance, which is again lifted verbatim from the district court s opinion. Compare Answer Br. at 13 with District Ct. Op., R-4-74 at 9-10. The Supreme Court recently emphasized that courts may impose a limiting construction on a statute only if it is readily susceptible to such a construction. Stevens, 130 S. Ct. at 1592 (internal quotations and citation omitted). Federal courts will not rewrite a law to conform it to constitutional requirements, for doing so would constitute a serious invasion of the legislative domain and sharply diminish Congress s incentive to draft a narrowly tailored law in the first place. Id. (internal quotations, citations, and ellipsis omitted). As explained above, the state s proposed construction flies in the face of those principles by disregarding the literal text of Florida s interior design law, by rendering an entire provision of the law superfluous, and by disavowing the 4 R-2-54-27 at 8 (No. 25). 15

Case: 10-11052 Document: 01116039075 Page: 25 legislature s understanding of interior design as including such purely aesthetic items as photographs, paintings, [and] other works of art. Fla. Stat. 713.79. Legislative purpose. Finally, the state argues that Florida s interior design law should be interpreted consistent with the supposed legislative purpose of protecting the health, safety and welfare of the public. Answer Br. at 11. As an initial matter, there is no evidence that this was the legislature s purpose. While the purpose section of Florida s architecture and interior design law refers to safety in regard to the practice of architecture, it makes no such reference in regard to interior design. 5 Accordingly, there is no textual evidence that Florida s interior design law was enacted for the purpose of protecting the public s health, safety, or welfare. See Gross v. FBL Fin. Servs., 129 S. Ct. 2343, 2350 (2009) ( Statutory construction must begin with the language employed by [the legislature] and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. ). 5 Florida Statutes 481.201 states that: The primary legislative purpose for enacting this part is to ensure that every architect practicing in this state meets minimum requirements for safe practice. It is the legislative intent that architects who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. The Legislature further finds that it is in the interest of the public to limit the practice of interior design to interior designers or architects who have the design education and training required by this part or to persons who are exempted from the provisions of this part. (Emphases added.) 16

Case: 10-11052 Document: 01116039075 Page: 26 Even if the interior design law did contain an express legislative purpose of promoting health and safety, it is inappropriate for a court construing a statute to follow the overall purpose of the statutory scheme in order to disregard [its] plain text. Asociacion de Empleados del Area Canalera v. Pan. Canal Comm n, 329 F.3d 1235, 1241 (11th Cir. 2003) (internal quotations and citation omitted); see also Sinclair v. De Jay Corp., 170 F.3d 1045, 1047 (11th Cir. 1999) ( [W]hen the language of a statute is plain and unambiguous, it is inappropriate to resort to any examination of purpose to interpret meaning. ). IV. When Given Its Full Scope, Florida s Interior Design Law Fails Even Rational Basis Scrutiny. The state and its amicus American Society of Interior Designers (ASID) argue that the practice of interior design implicates public health, safety, and welfare, and that it is therefore rational for the government to regulate who may perform interior design services. Answer Br. at 29-33; ASID Br. at 14. As an initial matter, it is notable that neither the state nor its two amici (who are among the chief proponents and the chief beneficiaries of interior design licensing laws) have documented even a single incident of harm caused by the unlicensed practice of interior design, despite having 47 states including giants like California and New 17

Case: 10-11052 Document: 01116039075 Page: 27 York in which to look for examples. 6 The paucity of regulation in this area, together with the absence of any documented harm, raises the specter of irrationality. See De Weese v. Palm Beach, 812 F.2d 1365, 1369 (11th Cir. 1987) ( The virtual absence of statutes or ordinances similar to the instant one, although not controlling, is a strong suggestion that the ordinance is arbitrary and irrational. ). But even setting aside the lack of regulation in other states and the absence of documented harm, Florida s interior design law does not plausibly advance a legitimate public purpose because it is riddled with exemptions. See Opening Br. at 49-54. The state tries to avoid the inherent irrationality of the law as it is written by treating its provisions including its many exemptions as if they operated in complete isolation from one another. But as the Supreme Court has noted in other contexts, it is an error to analyze separately two parts of an integrated regulation, 6 NCIDQ s amicus brief quotes the cable channel HGTV s website for the proposition that 23 states require designers to have licenses, just like doctors or lawyers. NCIDQ Br. at 3. This is false. As set forth on page three of Appellants opening brief, only three states regulate the practice of interior design. Other states regulate the use of titles such as registered interior designer or licensed interior designer, but impose no restrictions on who may perform interior design work. An accurate map of state interior design regulations is available at http://idpcinfo.org/legislation.html. 18

Case: 10-11052 Document: 01116039075 Page: 28 when an entire program is subject to constitutional challenge. W. Lynn Creamery v. Healy, 512 U.S. 186, 201, 114 S. Ct. at 2215 (1994) (dormant Commerce Clause challenge). Thus, the question is not whether individual provisions of Florida s law may be deemed rational, but rather whether the entire scheme, taken as a whole, plausibly advances a legitimate state interest. See, e.g., Fitzgerald v. Racing Ass n of Cent. Iowa, 539 U.S. 103, 107-10, 123 S. Ct. at 2159-61 (2003) (emphasizing that rational basis test requires a plausible policy reason (emphasis added)); Heller v. Doe, 509 U.S. 312, 324, 333, 113 S. Ct. at 2649-50 (1993) (same). If rational basis review is nothing more than a rubber stamp for legislative action, then of course Florida s interior design law passes muster. But if the rational basis test has any substance at all and particularly if one takes seriously the requirement that regulations be supported by a truly plausible policy reason then Florida s exception-riddled interior design law should fail because it is not reasonably related to any genuine public welfare concerns. Thus, to conclude that Florida s law is rational, one would have to simultaneously believe that: (1) interior design is so inherently dangerous that only those with six years of formal education and experience should be allowed to make artistic renderings related to commercial interior design projects; (2) the free market is nonetheless perfectly capable of ensuring that only qualified individuals make drawings regarding the placement of deep fryers in commercial kitchens; (3) individuals who gained only a single year 19

Case: 10-11052 Document: 01116039075 Page: 29 of interior design experience in Florida in the late 1980s can safely perform all aspects of interior design without any formal education; and (4) the risks supposedly associated with the selection of carpet, door hardware, faucets, and telephone mountings in commercial spaces, e.g., ASID Br. at 17-19, are somehow absent in private residences, where anyone may practice interior design in Florida regardless of their qualifications and without any government oversight. Fla. Stat. 481.229(6)(a); see generally Opening Br. at 52-53. Those propositions are simply irreconcilable with the notion that Florida s regulatory scheme bears any rational connection to public health and safety. To the contrary, the only perspective from which Florida s interior design licensing scheme truly appears rational is that of the interest groups who drafted and promoted it. In this way, Florida s interior design law is exactly like the casket-sale law held unconstitutional in Craigmiles v. Giles, 312 F.3d 220, 228 (6th Cir. 2002): Finding no rational relationship to any of the articulated purposes of the state, we are left with the more obvious illegitimate purpose to which licensure provision is very well tailored. Appellants discussed Craigmiles on page 54 of their opening brief, but the state offers no response. Appellants respectfully urge this Court to embrace the Sixth Circuit s reasoning in Craigmiles and invalidate Florida s interior design law, not because it is patently protectionist, but instead because it has no other plausible rationale. 20

Case: 10-11052 Document: 01116039075 Page: 30 CONCLUSION For the foregoing reasons, the Plaintiff-Appellants respectfully request that the portion of the district court s decision upholding the practice provisions of Florida s interior design law be reversed and that this case be remanded for entry of a judgment declaring the practice provisions unconstitutional and enjoining the state from enforcing them. Dated this 15th day of June, 2010. Respectfully submitted, William H. Mellor (DC Bar No. 462072) Clark M. Neily III (DC Bar No. 475926) Paul M. Sherman (DC Bar No. 978663) INSTITUTE FOR JUSTICE 901 North Glebe Road, Suite 900 Arlington, Virginia 22203 Tel: (703) 682-9320 Fax: (703) 683-9321 Email: wmellor@ij.org, cneily@ij.org, psherman@ij.org Attorneys for Appellants 21

Case: 10-11052 Document: 01116039075 Page: 31 Daniel J. Woodring (FL Bar No. 86850) WOODRING LAW FIRM 3030 Stillwood Court Tallahassee, FL 32308-0520 Tel: (850) 567-8445 Fax: (850) 254-2939 Email: Daniel@woodringlawfirm.com Local Counsel for Appellants 22

Case: 10-11052 Document: 01116039075 Page: 32 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because this brief contains 4,973 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14-point Times New Roman font. By: Clark M. Neily III Institute for Justice 901 North Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Attorney for Appellants

Case: 10-11052 Document: 01116039075 Page: 33 CERTIFICATE OF FILING AND SERVICE I certify that on this 15th day of June, 2010, I filed with the Clerk s Office of the United States Court of Appeals for the Eleventh Circuit, via UPS Next Day Air, the required number of copies of this REPLY BRIEF OF APPELLANTS, and further certify that I served, via UPS Next Day Air, the required number of this REPLY BRIEF OF APPELLANTS to the following: Jonathan A. Glogau Chief, Complex Litigation PL-01, The Capitol Tallahassee, FL 32399-1050 Tel: (850) 414-3300, ext. 4817 Fax: (850) 414-9650 Email: jon.glogau@myfloridalegal.com Attorney for Appellees By: Clark M. Neily III Institute for Justice 901 North Glebe Road, Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Attorney for Appellants