[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT MARCH 1, 2011 No. 10-11052 JOHN LEY ________________________ CLERK
D. C. Docket No. 4:09-cv-00193-RH-WCS
EVA LOCKE, PATRICIA ANNE LEVENSON, BARBARA VANDERKOLK GARDNER, NATIONAL FEDERATION OF INDEPENDENT BUSINESS,
Plaintiffs-Appellants,
versus
JOYCE SHORE, JOHN P. EHRIG, AIDA BAO-GARCIGA, ROASSANA DOLAN, WANDA GOZDZ, et al.,
Defendants-Appellees,
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(March 1, 2011) Before MARTIN, COX, and BLACK, Circuit Judges.
MARTIN, Circuit Judge:
The question this appeal presents is whether Florida’s license requirement
for interior designers practicing in commercial settings within the state violates the
United States Constitution. The district court held that the license requirement is
constitutional under each of the provisions Appellants relied on to challenge it: the
First Amendment, the Dormant Commerce Clause, and the Equal Protection and
Due Process Clauses.1 We agree and affirm.
I. BACKGROUND
Florida law requires interior designers practicing in nonresidential,
commercial settings within the state to obtain a state license. Fla. Stat. §§
481.209(2), 481.213. Florida statute § 481.223(1)(b) provides that “[a] person
may not knowingly . . . [p]ractice interior design unless the person is a registered
interior designer unless otherwise exempted herein.” A designer must complete a
combined total of six years of interior design education and internship experience
with a licensed interior designer to qualify for a Florida license. See Fla. Stat.
1 Before the district court, Appellants also unsuccessfully challenged the licensing requirement under the Fourteenth Amendment’s Privileges or Immunities Clause. On appeal, Appellants have abandoned this claim. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that issues not argued on appeal are deemed abandoned); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 n.4 (11th Cir. 2008).
2 § 481.209(2); Fla. Admin. Code r. 61-G1-22.001(1). The designer must also pass
an examination administered by the National Council of Interior Design
Qualifications (“NCIDQ”). Fla. Stat. §§ 481.209 and 481.207.
Florida’s statute on its face requires only interior designers, a subset of
architects, but not interior decorators, to obtain a state license before practicing in
a commercial setting. See Fla. Stat. §§ 481.223(1)(b) and 481.203(8), (15). A
separate Florida statute defines “interior design” as “designs, consultations,
studies, drawings, specifications, and administration of design construction
contracts relating to nonstructural interior elements of a building or structure.”
Fla. Stat. § 481.203(8). The statute further provides that “‘[i]nterior 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.”2 Id. By contrast, “‘[i]nterior decorator services’ includes the
selection or assistance in selection of surface materials, window treatments,
wallcoverings, paint, floor coverings, surface-mounted lighting, surface-mounted
fixtures, and loose furnishings not subject to regulation under applicable building
codes.” Fla. Stat. § 481.203(15).
2 A “nonstructural element” is “an element which does not require structural bracing and which is something other than a load-bearing wall, load-bearing column, or other load-bearing element of a building or structure which is essential to the structural integrity of the building.” Fla. Stat. § 481.203(10).
3 Practicing interior design in commercial settings in Florida without a license
constitutes a misdemeanor, punishable by up to one year in jail. See Fla. Stat.
§§ 481.223(2) and 775.082(4)(a). The Florida Board of Architecture and Interior
Design (“the Board”), the entity that enforces the license requirement, may also
impose an administrative penalty. See Fla. Stat. § 455.228. In recent cases, the
Board has sought to charge violators a $5,000.00 fine per violation. The Board
has pursued, on average, several hundred cases per year, in recent years.
Florida’s interior design license requirement includes several exceptions.
For instance, interior designers practicing in residential settings in Florida may do
so without a license. See Fla. Stat. §§ 481.223(1)(b) and 481.229(6)(a). Under
certain conditions, Florida also exempts from the license requirement
manufacturers of “commercial food service equipment” and employees of retail
establishments performing interior decorator services in connection with a retail
sale. See Fla. Stat. §§ 481.229(6)(b), (8). Florida also allows unlicensed
employees of an architect to practice “under the instruction, control, or
supervision” of a licensed architect. Fla. Stat. § 481.229(2). Similarly, “any
person” can “act[] as a contractor in the execution of work designed by an
architect.” Id.
4 Florida law also requires corporations, limited liability companies, and
partnerships offering interior design services in commercial settings in Florida to
have a Florida-licensed interior designer serve as a partner or one of the principal
officers of the firm. See Fla. Stat. § 481.219. For such entities to comply with
Florida law, they must obtain a certificate of authorization from the Board. Fla.
Stat. § 481.219(3). Certificate applicants must establish that “[o]ne or more of the
principal officers of the corporation or one or more partners of the partnership, and
all personnel of the [entity] who act in its behalf in [Florida] as interior designers,
are registered.” Fla. Stat. § 481.219(7)(b). A “registered” interior designer is one
who “is licensed” under Florida law. See Fla. Stat. § 481.203(9).
Appellants, Eva Locke, Patricia Anne Levenson, and Barbara Vanderkolk
Gardner, currently practice interior design in residential settings in Florida and
wish to expand their practice to commercial settings. They are educated and
trained in interior design but not licensed as “interior designers” by the state of
Florida. The Board has notified Gardner, on two separate occasions, that it has
found probable cause to prosecute her for violating Florida’s interior design
license law. The National Federation of Independent Business is a national trade
association with members who, like these designers, provide “interior design” and
decorator services in Florida. Some of the association’s members have been
5 subject to enforcement actions by the Board for alleged violations of the interior
design license law.
Collectively Appellants sued members of the Board (“Appellees”) in their
official capacity under 42 U.S.C. § 1983 to challenge the constitutionality of
Florida’s license requirement. The parties filed cross-motions for summary
judgment and, after oral argument on the motions, agreed to try the case as a bench
trial based solely on the written record. The district court found that Florida’s
license requirement is constitutional under the First Amendment, Dormant
Commerce Clause, and Fourteenth Amendment’s Privileges or Immunities, Equal
Protection and Due Process Clauses.3 We likewise conclude that the license
requirement is constitutional under the provisions at issue in this appeal. We
address each provision in turn, deciding questions of law de novo and reviewing
the district court’s factual findings for clear error. See Proudfoot Consulting Co.
v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009).
3 The district court invalidated Florida’s titling law, Fla. Stat. § 481.223(1)(c), which prohibited unlicensed designers from “[u]s[ing] the name or title . . . ‘interior designer’ or ‘registered interior designer,’ or words to that effect,” as unconstitutional under the First Amendment. Because Appellees did not appeal this finding, the issue of the constitutionality of the titling statute is not before this Court.
6 II. DISCUSSION
A. First Amendment
Appellants argue that the license requirement unconstitutionally burdens
protected speech under the First Amendment. “A statute that governs the practice
of an occupation is not unconstitutional as an abridgement of the right to free
speech, so long as any inhibition of that right is merely the incidental effect of
observing an otherwise legitimate regulation.” Accountant’s Soc. of Va. v.
Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (quotation marks omitted); see also
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456–57, 98 S. Ct. 1912, 1918–19
(1978); Wilson v. State Bar of Ga., 132 F.3d 1422, 1430 (11th Cir. 1989)
(recognizing, in dicta, that regulations that “govern occupational conduct” with
only an “incidental effect” on speech withstand First Amendment scrutiny);
Lawline v. Am. Bar Ass’n, 956 F.2d 1378, 1386 (7th Cir. 1992). “If the
government enacts generally applicable licensing provisions limiting the class of
persons who may practice the profession, it cannot be said to have enacted a
limitation on freedom of speech . . . subject to First Amendment scrutiny.” Lowe
v. SEC, 472 U.S. 181, 232, 105 S. Ct. 2557, 2584 (1985) (White, J., concurring).
There is a difference, for First Amendment purposes, between regulating
professionals’ speech to the public at large versus their direct, personalized speech
7 with clients. See id.; Bowman, 860 F.2d at 604–05. Florida’s license requirement
regulates solely the latter. Because the license requirement governs “occupational
conduct, and not a substantial amount of protected speech,” it does not implicate
constitutionally protected activity under the First Amendment. See Wilson, 132
F.3d at 1429.
We likewise reject Appellants’ argument that Florida’s license requirement
is unconstitutionally overbroad under the First Amendment.4 Appellants have
failed to prove that the license requirement meets the exacting standard for
invalidating laws under the overbreadth doctrine. That doctrine “permits the facial
invalidation of laws that inhibit the exercise of First Amendment rights if the
impermissible applications of the law are substantial when judged in relation to
the statute’s plainly legitimate sweep.” City of Chicago v. Morales, 527 U.S. 41,
52, 119 S. Ct. 1849, 1857 (1999) (quotation marks omitted). Moreover, we must
construe the license requirement to avoid constitutional overbreadth problems.
See New York v. Ferber, 458 U.S. 747, 769 n.24, 102 S. Ct. 3348, 3361 (1982)
(“When a federal court is dealing with a federal statute challenged as overbroad, it
should, of course, construe the statute to avoid constitutional problems, if the
4 Appellants also argued before the district court that Florida’s license requirement was void for vagueness under the First Amendment. They have failed to renew that argument on appeal.
8 statute is subject to such a limiting construction.”); Crowell v. Benson, 285 U.S.
22, 62, 52 S. Ct. 285, 296 (1932). The overbreadth doctrine is “strong medicine”
that generally should be administered “only as a last resort.” United States v.
Williams, 553 U.S. 285, 293, 128 S. Ct. 1830, 1838 (2008) (quotation marks
omitted); Ferber, 458 U.S. at 769, 102 S. Ct. at 3361. Because the license
requirement is a professional regulation with a merely incidental effect on
protected speech, we cannot say that its impermissible applications are substantial
relative to its plainly legitimate sweep. We conclude that Florida’s license
requirement is constitutional under the First Amendment.
B. Dormant Commerce Clause
Appellants next argue that Florida’s license requirement violates the
Dormant Commerce Clause. The Dormant Commerce Clause prohibits states from
enacting statutes that impose “substantial burdens” on interstate commerce. See
Dennis v. Higgins, 498 U.S. 439, 447, 111 S. Ct. 865, 870 (1991). It prevents a
state from “overtly block[ing] the flow of interstate commerce at [its] borders.”
Diamond Waste, Inc. v. Monroe Cnty., 939 F.2d 941, 944 (11th Cir. 1991).
We first observe that the Dormant Commerce Clause applies to professional
licensing statutes like the one at issue in this case. See, e.g., Kirkpatrick v. Shaw,
70 F.3d 100, 103 (11th Cir. 1995) (per curiam) (analyzing whether Florida’s state
9 bar character and fitness requirement violated the Dormant Commerce Clause);
Serv. Mach. & Shipbldg. Corp. v. Edwards, 617 F.2d 70, 73–76 (5th Cir. 1980)5
(striking city ordinance which required only nonresident itinerant laborers to
register their employment as unconstitutional under the Dormant Commerce
Clause because “[t]he movement of persons falls within the protection of the
commerce clause”).
Our review of state statutes under the Dormant Commerce Clause involves
two levels of analysis. Bainbridge v. Turner, 311 F.3d 1104, 1108–09 (11th Cir.
2002). We first must determine whether the state law discriminates against out-of-
state residents on its face. Id. Laws that facially discriminate against out-of-state
residents are analyzed under heightened scrutiny and are rarely upheld. Id. (citing
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578–79,
106 S. Ct. 2080, 2084 (1986)). Second, state laws that do not facially discriminate
against out-of-state residents are struck down only if “the burden imposed on
[interstate] commerce is clearly excessive in relation to the putative local
benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847
(1970); Bainbridge, 311 F.3d at 1109.
5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all Fifth Circuit decisions issued prior to October 1, 1981.
10 We begin our inquiry by determining whether Florida’s license requirement
discriminates against out-of-state interior designers on its face or in effect. The
interior design license requirement does not facially discriminate against out-of-
state designers. The statutory text provides that both Florida and out-of-state
interior designers need a Florida license to practice in commercial settings within
the state. See Fla. Stat. § 481.223(1)(b) (“A person may not knowingly . . .
[p]ractice interior design unless the person is a registered interior designer . . . .”).
The Supreme Court and this Court have found, however, that neutrally-worded
statutes are unconstitutional under the Dormant Commerce Clause if they have a
discriminatory effect on out-of-state residents unless the state can “justify it both
in terms of the local benefits flowing from the statute and the unavailability of
nondiscriminatory alternatives.” Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 352–53, 97 S. Ct. 2434, 2446–47 (1977); C&A Carbone, Inc. v. Town of
Clarkstown, 511 U.S. 383, 394–95, 114 S. Ct. 1677, 1684 (1994) (striking
neutrally-worded ordinance, which required all of the town’s solid waste to be
processed in the town, as unconstitutional under the Dormant Commerce Clause
because of discriminatory impact on out-of-state waste processing); see also Island
Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 846–47 (11th Cir. 2008)
(striking neutrally-worded ordinance, which imposed size restrictions on retail
11 establishments, as unconstitutional under the Dormant Commerce Clause because
of discriminatory impact on interstate chain retailers).
The Supreme Court has emphasized several factors which guide us in
determining whether a neutrally-worded state law has a discriminatory impact.
The Supreme Court has focused on whether the state law “exclude[s] a class of
predominantly out-of-state [residents]” from a particular market. See Exxon Corp.
v. Governor of Md., 437 U.S. 117, 137, 98 S. Ct. 2207, 2220 (1978). The Court
also has looked to whether the state statute imposes costs on out-of-state residents
that in-state residents do not have to bear. See, e.g., Hunt, 432 U.S. at 348–49,
351–52, 92 S. Ct. at 2444–46. Moreover, the Court has considered whether the
state legislature was motivated by protectionist purposes in passing the law at
issue. See, e.g., Granholm v. Heald, 544 U.S. 460, 472, 125 S. Ct. 1885, 1895
(2005) (“States may not enact laws that burden out-of-state [residents] simply to
give a competitive advantage to in-state businesses.”); H.P. Hood & Sons v.
DuMond, 336 U.S. 525, 538, 69 S. Ct. 657, 665 (1949).
(i) License Requirement for Individual Interior Designers
In light of these factors, we conclude that Florida’s license requirement does
not have a discriminatory effect on out-of-state interior designers. Florida’s
license requirement does not exclude a class of predominately out-of-state interior
12 designers. The license requirement does not apply to out-of-state interior
designers practicing in residential settings in Florida. Further, out-of-state
unlicensed interior designers may practice in commercial settings in Florida
“under the instruction, control, or supervision” of a licensed architect or while
“acting as a contractor in the execution of work designed by an architect.” See
Fla. Stat. § 481.229(2). While the requirement somewhat restricts entry into
Florida’s commercial interior design market, it does not block entry altogether.
Rather, it merely requires interior designers, both in and out-of-state, to achieve
proficiency in the field before practicing. Any cost imposed on out-of-state
residents is one that Florida residents must also bear, because they too must obtain
a license to practice interior design in commercial settings.
Appellants next ask us to find the license requirement unconstitutional
because of the alleged discriminatory effect of the former grandfather clause. In
the past, a grandfather clause insulated Florida-based interior designers from the
more onerous requirements that apply to out-of-state designers. See Fla. Stat.
1988, ch. 88-383, § 21 (repealed 2000). Designers with a Florida “municipal or
county license”6 who held themselves out as interior designers for one year prior
6 Such licenses are the equivalent of a business license that is required for any business operating within a municipality’s jurisdiction and is issued upon payment of a fee. See Occupational Licenses, http://www.ci.boca-raton.fl.us/city/servicesA-Z.shtm (explaining that occupational licenses are synonymous with “business tax receipts” and required for the privilege of engaging in a particular
13 to the passage of the licensing requirement in 1988 could obtain a Florida license
by passing the NCIDQ exam but without undergoing any formal education. Id.
Other interior designers needed at least six years of experience to obtain a Florida
license. Id.
We conclude that the license requirement’s former grandfather clause does
not change the result. The grandfather clause was not limited to Florida residents,
but merely to designers, both in- and out-of-state, who held occupational licenses
in Florida counties prior to the passage of the licensing requirement. Thus, in- and
out-of-state interior designers alike benefitted from the clause. We cannot say that
any added burden the clause imposed on interstate commerce disproportionately
impacted out-of-state designers.
We likewise reject Appellants’ argument that Florida acted with a
protectionist purpose in passing the interior design license requirement. Florida’s
license requirement is a “safety regulation” and thus carries a “strong presumption
of validity.” See Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662, 670,
101 S. Ct. 1309, 1316 (1981) (quotation marks omitted). The statutory text
reveals that the Florida legislature was primarily concerned with protecting
Florida consumers from safety risks in passing the licensing statute:
business or profession within a jurisdiction) (last visited Dec. 16, 2010).
14 The primary legislative purpose for enacting this part is to ensure that every architect practicing in this state meets minimum requirements for safe practice . . . . 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 a design education and training . . . .
Fla. Stat. § 481.201. Moreover, the legislative history confirms that the legislature
highlighted safety concerns, such as failure to comply with fire and building codes
and higher levels of indoor pollution, when considering whether to implement the
licensing requirement. See Fla. S. Comm. on Approp., Senate Staff Analysis and
Economic Impact Statement, S. CS/CS/SB 127, 20th Sess., at 1–2 (May 1988)
[hereinafter Senate Report].
Because Florida’s license requirement does not discriminate against out-of-
state residents, it is constitutional under the Dormant Commerce Clause unless the
burden it imposes on interstate commerce clearly exceeds its putative local
benefits. Pike, 387 U.S. at 142, 90 S. Ct. at 847. The Florida legislature justified
the license requirement by citing safety benefits. “If safety justifications are not
illusory, the Court will not second-guess legislative judgment about their
importance in comparison with related burdens on interstate commerce.” Kassel,
450 U.S. at 670, 101 S. Ct. at 1316. When the legislature passed the license
requirement, it relied on a report that suggested that the unlicensed practice of
15 interior design could lead to decreased compliance with building and fire codes as
well as increased pollution. See Senate Report, at 1–2.
We cannot say that the Florida legislature’s safety justification was merely
illusory. We therefore decline the invitation to second guess the legislature’s
judgment as to the relative importance of the safety justifications versus any
burdens imposed on interstate commerce. In light of the strong presumption of
validity we must accord safety regulations, we conclude that Florida’s interior
designer license requirement, as applied to individual designers, passes muster
under the Dormant Commerce Clause.
(ii) License Requirement for Firms
Appellants next argue that Florida’s license requirement is unconstitutional
under the Dormant Commerce Clause because it has a discriminatory effect on
out-of-state interior design firms. Florida’s statute requires that, for firms
practicing interior design in commercial settings in Florida, “[o]ne or more of the
principal officers of the corporation or one or more partners of the partnership, and
all personnel of [the entity] who act in its behalf in [Florida] as interior designers
are registered” under the Florida licensing regime. Fla. Stat. § 481.219(7)(b).
“Registered” interior designers are those who are licensed. See Fla. Stat.
§ 481.203(9).
16 The factors we apply to determine whether a neutrally-worded state statute
has a discriminatory impact on out-of-state residents lead us to conclude that the
license requirement, as applied to design firms, is constitutional under the
Dormant Commerce Clause. Our analysis of the license requirement for firms
parallels our analysis of the requirement for individual designers but differs in one
respect. We acknowledge that requiring firms to appoint principal officers who
are licensed in Florida may impose a greater burden on interstate commerce than
merely requiring individuals practicing in Florida to obtain a license.
We conclude, however, that because this burden is one shared by Florida
and out-of-state firms alike, the burden is not clearly excessive in relation to the
requirement’s local benefit. The license requirement for firms does not exclude a
class of predominately out-of-state firms from practicing interior design in Florida.
Any cost imposed on out-of-state firms as a result of the license requirement is
also imposed on in-state firms doing business in Florida’s commercial design
market. Moreover, the license requirement does not apply to out-of-state firms
doing business in Florida’s residential settings. See Fla. Stat. § 481.229(6)(a).
Thus, similar to the license requirement for individuals, the requirement merely
restricts but does not bar entry into Florida’s commercial interior design market.
We also do not agree with Appellants’ argument that the legislature was motivated
17 by protectionist purposes in passing the license requirement for firms, because the
safety justification underlying the requirement is no less compelling when applied
to firms. We therefore conclude that the license requirement for firms is also
constitutional under the Dormant Commerce Clause.
C. Due Process and Equal Protection Clauses
Appellants next argue that Florida’s license requirement violates their
substantive due process right to earn a living in the profession of their choice.
They also argue that the license requirement violates their rights under the Equal
Protection Clause of the Fourteenth Amendment because it discriminates against
out-of-state interior designers. Rational basis review applies to Due Process and
Equal Protection Clause challenges to state professional regulations, because the
right to practice a particular profession is not a fundamental one. See Williamson
v. Lee Optical of Okla., 348 U.S. 483, 488, 75 S. Ct. 461, 464 (1955); see also
Kirkpatrick, 70 F.3d at 103. “On rational-basis review, a classification in a statute
. . . bear[s] a strong presumption of validity.” FCC v. Beach Commc’ns, Inc., 508
U.S. 307, 314–15, 113 S. Ct. 2096, 2101–02 (1993). A statute is constitutional if
“there is any reasonably conceivable state of facts that could provide a rational
basis for [it].” Id. at 313, 113 S. Ct. at 2101. The party challenging the statute
bears the burden of proving that the statute lacks a rational basis. See Bah v. City
18 of Atlanta, 103 F.3d 964, 967 (11th Cir. 1997) (citing Beach Commc’ns, Inc., 508
U.S. at 314–15, 113 S. Ct. at 2101–02).
Appellees have failed to prove that Florida’s license requirement lacks a
rational basis. “States have a compelling interest in the practice of professions
within their boundaries, and . . . they have broad power to establish standards for
licensing practitioners and regulating the practice of professions.” Goldfarb v. Va.
State Bar, 421 U.S. 773, 792, 95 S. Ct. 2004, 2016 (1975). The Florida legislature
enacted the license requirement to protect public safety by ensuring that interior
designers are trained to comply with fire and building codes. See Fla. Stat.
§ 481.201 (describing purpose of interior design license requirement as promoting
“the interest of the public”); see also Senate Report, at 1–2.
We reject Appellants’ argument that the legislature’s safety concern does
not provide a rational basis for the license requirement because it was unfounded.
A law “may be based on rational speculation unsupported by evidence or empirical
data.” Beach Commc’ns, 508 U.S. at 315, 113 S. Ct. at 2102. A statute survives
rational basis review even if it “seems unwise . . . or if the rationale for it seems
tenuous.” Romer v. Evans, 517 U.S. 620, 632, 116 S. Ct. 1620, 1627 (1996).
Thus, the fact that, after Florida passed its license requirement, other states have
considered and rejected the notion that the unlicensed practice of interior design
19 poses safety concerns, is of no consequence. Further, this Court has recognized
that:
under rational basis review, a state has no obligation to produce evidence to sustain the rationality of a statutory classification. Rather, a statute is presumed constitutional, and the burden is on the one attacking the law to negate every conceivable basis that might support it, even if that basis has no foundation in the record.
Deen v. Egleston, 597 F.3d 1223, 1230 (11th Cir. 2010) (quotation marks
omitted). Therefore, contrary to Appellants’ argument, Florida and Appellees had
no burden to produce evidence of the safety benefits that follow from allowing
only licensed interior designers to design in commercial settings.
Moreover, Appellants did not negate every conceivable basis that might
support Florida’s license requirement. They have failed to carry their burden and
prove that the license requirement does not lead to any improvement in the safety
of interior design or compliance with building and fire codes.
Nor do the exceptions to Florida’s license requirement pose constitutional
problems under rational basis review. “The legislature may select one phase of
one field and apply a remedy there, neglecting the others.” Lee Optical, 348 U.S.
at 489, 75 S. Ct. at 465. Thus, the fact that Florida’s legislature exempts, under
certain circumstances, retail establishments and manufacturers of commercial food
service equipment from the licensing requirement does not invalidate the statute,
20 even if it seems unwise or illogical in light of the safety concerns behind the
statute. “Under rational basis review, a court must accept a legislature's
generalizations even when there is an imperfect fit between means and ends.”
Deen, 597 F.3d at 1230–31 (quotation marks omitted).
III. CONCLUSION
We conclude that as to all of Appellants’ claims, they have failed to
overcome the strong presumption of validity we must accord to professional and
safety regulations. Therefore, we affirm the district court’s finding that Florida’s
interior design license requirement is constitutional.
AFFIRMED.
21 BLACK, Circuit Judge, concurring in the result:
While I concur in the result in this case, I write separately to underscore my
view that the majority’s analysis of the Appellants’ First Amendment and Dormant
Commerce Clause claims is tied narrowly to this particular professional licensing
regulation and the evidence in the record before us.
As I understand the majority opinion, it holds that Florida’s licensing
scheme does not violate the First Amendment because it is a regulation of
occupational conduct with only an incidental impact on protected speech. The
practice of interior design, as defined by the statute, involves direct, personalized
communications with clients in which designers use their technical expertise to
exercise judgment on behalf of clients on matters affecting health and safety.
Because of this “personal nexus” between the designer and the client and because
the designer is exercising judgment on behalf of the client in light of the client’s
specific circumstances, Florida’s law is properly viewed as a legitimate regulation
of professional practice. See Lowe v. SEC, 472 U.S. 181, 232, 105 S. Ct. 2557,
2584 (1985) (White, J., concurring).
In applying the first tier of our Dormant Commerce Clause analysis, Island
Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 846 (11th Cir. 2008), I agree that
22 the law does not discriminate against interstate commerce on its face, nor does the
record establish that the law is discriminatory in effect.
As to the second tier, I agree with the majority that the law advances a
legitimate state interest and its burdens on interstate commerce are not “clearly
excessive in relation to the putative local benefits.” See Pike v. Bruce Church, 397
U.S. 137, 142; 90 S. Ct. 844, 847 (1970).
The individual licensing requirement advances the state's legitimate interest
in promoting the health and safety of occupants of buildings. The firm licensing
requirement further promotes safety by ensuring that a firm’s licensed interior
designers are supervised by someone who is similarly qualified and in a position
to actually exercise control over interior design work produced by the firm. See
Fla Stat. § 481.219(7)(b); § 481.219(10) (explaining that the principal officer who
qualifies the firm for its certificate of authorization “shall be responsible for
ensuring responsible supervising control of projects of the entity”).
Furthermore, while the licensing scheme does limit unlicensed designers’
ability to practice in Florida, it also preserves several outlets for these designers to
provide their services. Because the extent of the burden imposed by the licensing
requirement is significantly lessened by the statutory exemptions, I cannot
23 conclude on this record that the law’s burdens on interstate commerce are clearly
excessive in relation to its benefits.