Roberts v. FarrellRoberts v. Farrell
MEMORANDUM OF DECISION
Connecticut defines an “interior designer” as an individual “qualified by education, experience and examination who”:
(A) identifies, researches and creatively solves problems pertaining to the function and quality of the interior environment; and (B) performs services relative to interior spaces, including programming, design analysis, space planning and aesthetics, using specialized knowledge of non-load-bearing interior construction, building systems and components, building codes, equipment, materials and furnishings; and (C) prepares plans and specifications for non-load-bearing interior construction, materials, finishes, space planning, reflected ceiling plans, furnishings, fixtures and equipment relative to the design of interior spaces in order to enhance and protect the health, safety and welfare of the public.
Conn. GemStat. § 20-377k. Plaintiffs Susan Roberts, Lynne Hérmann, and Cynthia Hernandez each perform such interior design services in this State. Thus, since 1982, Susan Roberts has operated an antique furniture and interior design business called the “Idea Factory” and has provided residential and commercial interi- or design services to clients in Connecticut and other states. See Pls.’ Motion for Preliminary Injunction [doc. # 19] Ex. A (“Declaration of Susan Roberts”) at ¶¶ 2, 7. Since 2004, Lynne Hermann has operated an Interiors by Decorating Den franchise and has provided residential interior design services in Connecticut. See id. Ex. B (“Declaration of Lynne Hermann”) at ¶ 2. Cynthia Hernandez operates an interi- or design business called “Ideal Interiors, LLC, d/b/a Interiors by Decorating Den” and provides residential interior design services in Connecticut. See id. Ex. C (“Declaration of Cynthia Hernandez”) at ¶¶ 3, 4.
Plaintiffs brought this action under
The specific statutory provision that Plaintiffs challenge states as follows:
No person shall use the title “interior designer” or display or use any words, letters, figures, title, advertisement or other device to indicate that he is an interior designer, unless he (1) has obtained a certificate of registration as provided in sections 20-377k to 20-377v, inclusive; or (2) is an architect licensed in this state; or (3) has used or was identified by the title of “interior designer” for at least one year immediately preceding October 1,1983.
I.
On January 14, 2009, Plaintiffs moved for a preliminary injunction to restrain the Commissioner from enforcing §§ 20-377l to 20-377v pending resolution of their case on the merits. After the Court’s on-the-record telephonic conference with the parties on January 22, 2009, counsel agreed that it was both feasible and appropriate for Plaintiffs’ case to proceed on an accelerated schedule to a final judgment on the merits in lieu of a ruling on Plaintiffs Motion for Preliminary Injunction [doc. # 19]. After engaging in expedited discovery, the parties informed the Court on April 15, 2009 that they foresaw two possible means of resolving this case: (1) a bench trial on the merits on the basis of stipulated facts and legal briefing from the parties; and (2) legislative action requested by Connecticut Attorney General Richard Blumenthal and Commissioner Farrell, which the parties agreed would moot Plaintiffs’ constitutional challenge by changing the regulated term in § 20-377Í from “interior designer” to “registered interior designer.” See Substitute for Raised S.B. 1002, as amended by Senate Amendment “B” ’ (LCO No. 6967). 1 After again conferring with the parties during an on-the-record telephonic conference on April 27, 2009, the Court denied the Commissioner’s motion to stay the proceedings until the Connecticut General Assembly considered the proposed legislative amendment. The Commissioner stated he would continue to. pursue the legislative amendment and, although the Court and the parties were optimistic that remedial legislation would pass the Connecticut General Assembly, the Court scheduled a prelimi *245 nary injunction hearing immediately following the close of the legislature’s regular session.
Although the proposed amendment to
Although the Court, as well as the parties and their counsel, remained hopeful that the General Assembly would expeditiously act on the proposed amendment during its special session, the General Assembly has unfortunately not acted on the legislation. Therefore, the Court turns to the merits of Plaintiffs’ claim. Before proceeding further, however, the Court pauses briefly to commend the parties, their counsel, and the Attorney General and Commissioner on their cooperation during this case as well as their commitment to seeking a legislative resolution of Plaintiffs’ claim. The Court had hoped that the legislature would solve this issue on its own, and the Court and the parties have waited patiently for legislative action. Plaintiffs filed this action almost one year ago, in early-September 2008, and initially moved for preliminary relief in January 2009. They have shown the utmost patience as the Commissioner sought to work with the legislature to amend § 20-377Í. However, in a telephonic conference with the parties on June 29, 2009, counsel for the Commissioner could not provide any definite timetable for legislative change. Thus, the Court and Plaintiffs have now waited for almost an additional month without any further action by the General Assembly as to
After considering the parties’ briefs and stipulations of fact, as well as the skilled arguments of both counsel at the June 5, 2009 hearing, the Court hereby GRANTS Plaintiffs’ request for permanent injunctive relief as well as a declaratory judgment that § 20-377Z is unconstitutional. For the reasons that follow, the Court finds that § 20-377l violates Plaintiffs’ First and Fourteenth Amendment rights under the U.S. Constitution by impermissibly restricting their commercial speech.
*246 II.
Under Connecticut law, any person may perform interior design work in the state without first obtaining a license from or registering with the State.
2
Plaintiffs Susan Roberts, Lynne Hermann, and Cynthia Hernandez lawfully perform interior design services in Connecticut, and each Plaintiff considers herself to be, and wishes to identify herself as, an “interior designer.” There are four ways to be registered as an interior designer in Connecticut: (1) pass either of two national examinations (the National Counsel for Interior Design Qualification (NCIDQ) Examination or the Interior Design Society’s Uniform National Examination); (2) be licensed as an architect in Connecticut; (3) be registered as an interior designer in another state having registration standards equal to or greater than those in Connecticut; or (4) demonstrate that the registrant has used or was identified by the title of “interior designer” for one year or more immediately preceding October 1, 1983 and obtained registration prior to July 1, 1991.
As to those individuals qualifying by examination, the NCIDQ examination and the Uniform National Examination are formulated and administered by private bodies over which the State of Connecticut has no direct control. Both the NCIDQ and the Interior Design Society establish their own eligibility requirements to sit for those examinations. The State of Connecticut likewise has no direct control over those eligibility requirements. The examinations test knowledge and skills relating to consumer protection, public health, life safety, and welfare, among other subjects. Subject matters covered in the examinations include professional ethics, contract documents and administration, building codes, design standards and guidelines for persons with disabilities, and environmental standards and practices. The tests are comprised of three parts — two half-day multiple choice sections (Principles and Practices of Interior Design and Contract Documents and Administration) and a full day practicum (Schematics and Design Development) — each of which must be passed in order to be certified as having passed the examination. In order to sit for the examinations, a person must possess a combination of interior design-related education and supervised interior design-related work experience. Typically, six years are required to meet the work and education experience necessary to sit for the examination. Conversely, those individuals falling under the “grandfather” provision can be registered as an “interior designer” in Connecticut without having studied interior design in school, without having passed any examination, and without demonstrating any specific work experience.
There are approximately 617 registered interior designers listed on the Department of Consumer Protection’s roster of active registrants. Plaintiffs reviewed approximately 418 of those files and determined that of the registrants whose files were reviewed, approximately 1/4 were registered by virtue of having taken the NCIDQ examination; approximately 1/4 were registered by virtue of having used the title “interior designer” for at least one year prior to October 1, 1983; and approximately 1/2 were registered by virtue of being state-licensed architects. Although it maintains a roster of state-registered interior designers, the Department of Consumer Protection does not affirmatively disclose to the public (i.e., without
*247
being specifically asked) which interior designers obtained their registrations by taking a licensing exam, which were “grandfathered-in” without an exam under the provisions of
Despite lawfully performing interior design services in Connecticut, Plaintiffs are prohibited from referring to themselves as “interior designers” or the work they lawfully perform as “interior design,” because they are not registered with the Department of Consumer Protection under § 20-3772 and do not meet the “grandfathering” provision of § 20—3772(3) and
The Commissioner has enforced the interior design registration law, including collecting annual registration fees of $150 per registrant, investigating alleged violations of the registration law, and advising persons who are not registered with the Department that they may not refer to themselves as interior designers. Any person who knowingly, willfully, or intentionally, violates Connecticut’s interior design law shall be fined not more than $500 or imprisoned for up to one year, or be both fined and imprisoned.
Nineteen states regulate interior design-related titles but not interior design work. Of those states, only three — Connecticut, Oklahoma, and Texas — regulated the title “interior designer.” The remaining 16 states regulate the more specialized terms “licensed interior designer,” “registered interior designer,” or “certified interior designer.” Oklahoma and Texas recently passed legislation to amend their existing laws to regulate use of the term “registered interior designer,” instead of “interior designer.”
See
2009 Okla. Sess. Law Serv. Ch. 184 (West) (eff. July 1, 2009);
III.
Both parties agree that this case is about whether
Although the Court ultimately bases its decision on Central Hudson’s final factor — whether the regulation is more extensive than necessary to serve the State’s asserted interest — the Court will address each of the factors in turn because Plaintiffs raise substantial and legitimate questions regarding the Commissioner’s ability to satisfy his burden as to the other Central Hudson factors. Ultimately, however, even assuming arguendo, and without deciding, that the Commissioner could demonstrate that Connecticut’s interest in restricting the use of the title “interior designer” is substantial and that § 20-377Z directly advances that interest, the Court *249 concludes that the Commissioner cannot show that the challenged title restriction is no more extensive than necessary to serve the State’s asserted interest.
The Commissioner concedes that Plaintiffs may lawfully perform interior design services, but he argues that Plaintiffs’ would-be use of the term “interior designer” merits no First Amendment protection because it is misleading and thus fails the first prong of the Central Hudson test. According to the Commissioner, the legislature has invested the term “interior designer” with a specific meaning, and because each of the Plaintiffs does not meet the requirements for, and thus lacks a certificate of, state registration, each Plaintiff does not meet the statutory definition of an “interior designer.” Therefore, whenever a Plaintiff describes herself as an “interior designer,” she engages in untruthful and misleading speech in violation of the first prong of the Central Hudson analysis.
As Plaintiffs persuasively argue, and as the Fifth Circuit recently held in an essentially identical case involving Texas’s restriction on the title “interior designer,” the Commissioner’s argument is untenable.
See Byrum v. Landreth,
As the Eleventh Circuit stated in response to the identical argument in a case challenging Florida’s restriction of the title “psychologist,” a court is not bound by the state’s definition of a term when determining whether speech is misleading.
See Abramson v. Gonzalez,
The Commissioner relies on
American Academy of Pain Management v. Joseph,
American Academy of Pain Management
is distinguishable from this case for two primary reasons. First, unlike the term “board certified,” which the Ninth Circuit found to have a pervasive and well-established meaning throughout the medical profession, there has been no showing that the term “interior designer” is a well-established term of art in the design industry that connotes specialized skills or proficiency. In fact, the parties stipulate that they are “not aware of any evidence that a member of the public in Connecticut who hears a person refer to him- or herself as an ‘interior designer’ assumes that that person possesses a particular set of credentials and/or qualifications.” Stipulations of Fact [doc. # 32] Ex. A at ¶ 6. In addition, the Commissioner conceded at oral argument that apart from the statutory definition that Connecticut gave to the term in 1983, “interior designer” is a generic term that holds no specific meaning. At least in these circumstances, the accurate use of a descriptive and generic term to describe one’s services cannot become inherently misleading merely because the State has decided to appropriate the term and require state registration as a condition to its use.
See Byrum,
Second, unlike the title restriction that Connecticut places on Plaintiffs, the physicians in
American Academy of Pain Management
could still use the title “physician” even if they were not “board certified” under California’s statutory scheme. Thus, the term “board certified” simply modified the term “physician,” and when taken together, would be akin to such terms as “licensed interior designer,” “certified interior designer,” or “registered interior designer.” The California law at issue in
American Academy of Pain Management
did not strip physicians of their title of “physician” simply because they were not “board certified.” Nor did the Ninth Circuit hold that it was inherently misleading for physicians to call themselves “physicians” simply because they lacked board certification.
See American Academy of Pain Management,
Next, the Court considers whether the Commissioner has demonstrated that the State’s asserted interest in protecting consumers from being misled as to the title “interior designer” is substantial, and whether that interest is directly advanced by the restriction on use of the title “interior designer” under
Plaintiffs concede that consumer protection can be a substantial state interest, but they argue that the Commissioner’s asserted interests neither protect consumers nor respond to a demonstrated need for commercial regulation in this field. Although the parties stipulate that they “are not aware of any evidence that any consumer has ever been deceived, misled, or otherwise injured by a person’s use of the term ‘interior designer’ to describe him- or herself,” Stipulations of Fact [doc. # 32] Ex. A at ¶ 10, Plaintiffs acknowledge that consumers may not have reported to the Commissioner all title-related injuries they may have suffered. However, Plaintiffs take issue with what they deem is a complete lack of evidence regarding the need for a total ban on their use of the title “interior designer,” and thus, the Commissioner’s assertion that the State’s interest in regulating Plaintiffs’ speech is substantial and directly advanced by
Although the Commissioner admonishes Plaintiffs for seeking specific evidence that demonstrates that the State’s asserted interest in protecting consumers from their commercial speech is substantial and directly advanced by the title restriction in
The Court recognizes that the Commissioner need not cite empirical evidence in support of its regulation. However, this case is unlike
Went for It
in its complete lack of any “evidence” (even construed most broadly) to support the Commissioner’s asserted need to protect consumers from the use of the term “interior design” by individuals who lawfully perform those services in the State. Neither common sense, history or even consensus supports this restriction,
see Bad Frog Brewery,
As a consequence, the Court has considerable doubt that
As the Supreme Court itself has noted, the “critical inquiry” in determining the legality of a restriction on commercial speech is whether the “complete suppression of speech ordinarily protected by the First Amendment is no more extensive than necessary to further the State’s interest.”
Central Hudson,
First, when Connecticut Attorney General Blumenthal and Commissioner Farrell requested the assistance of the Co-Chairs of the Connecticut General Law Committee with respect to their proposed amendment to
*254 As the Supreme Court instructed in Went for It, a court may consider the existence of a less-burdensome alternative to the challenged restriction as relevant in determining whether the fit between the State’s ends and means is reasonable. The Court believes that this consideration becomes even more relevant where the Attorney General and Commissioner have acknowledged that “[sjimilar requirements [to Connecticut’s] in other states have been uniformly struck down as an unconstitutional infringement of First Amendment rights,” Pls.’ Suppl. Br. in Supp. of Mot. for Prelim. Inj. [doc. # 32] Ex B, and they have continued to advocate for a less-burdensome alternative to the current restriction. See Attachment to Order [doc. #35].
Second, as the Court has previously noted, the Commissionér has stated that the State has an interest not in the delivery of interior design services but rather in safeguarding the statutory meaning assigned to “interior designer” and in protecting consumers from being misled by the improper use of that title. However, as the Court emphasized at oral argument, the term “interior designer” is a generic term that conveys no particular educational or experiential credentials on the part of an individual. This is especially true given that one-quarter of registered interior designers in Connecticut fall under the grandfather provision in § 20 — 3772(3) and therefore may lack the education, experience, and certification held by the remaining percentage of “interior designers” registered with the State.
If the State were seeking to convey the existence of a regulatory regime in this field, then a term such as “licensed interior designer” or “registered interior designer” would far better serve that interest, as the rest of the states who have decided to regulate this field have concluded. In fact, this is precisely what Connecticut has done in other fields of endeavor, many of which also have practice restrictions. 4 Amending Connecticut’s title restriction of interior designers in a similar manner would more accurately convey that registered or certified individuals had submitted to the State’s oversight. In addition, the use of narrower terms such as “licensed interior designer,” “certified interior designer,” or “registered interior designer” would actually expand consumer choice and further consumer protection because it would alert Connecticut residents to the existence of a statutory registration or certification scheme, while simultaneously allowing Plaintiffs to compete in the market for interior design services. As such, the States’s asserted interest could be more effectively met by a more limited regulation.
When the Fifth Circuit examined the “fit” between what it assumed for purposes of its appeal was Texas’s substantial interest in protecting consumers and its title restriction on the use of “interior designer,” the court noted that simply including terms like “licensed,” “certified,” or “regis
*255
tered” before “interior designer” would ensure a reasonable “fit” between the state regulation and the nearly identical commercial speech at issue in that case.
See Byrum,
the state’s interest in protecting its citizens from incompetent health professionals ... can be furthered by more, not less disclosure. If the state is concerned about the dangers posed by “unqualified persons,” the current system whereby anyone may practice psychology seems an odd one indeed. Nonetheless, as long as that remains the system in Florida, the defendant must adopt narrowly tailored means for directly advancing the state’s interest while preserving the plaintiffs right to disseminate truthful commercial speech.
IV.
Accordingly, the Court concludes, and declares, that § 20-377Í of the Connecticut General Statutes, as currently written, violates Plaintiffs’ First and Fourteenth Amendment right to expression under the U.S. Constitution. The Commissioner is permanently enjoined from enforcing § 20-377L The Clerk shall enter judgment for Plaintiffs and close this file.
IT IS SO ORDERED.
Notes
. The proposed legislative amendment to
No person shall use the title "registered interior designer” or display or use any words, letters, figures, title, advertisement or other device to indicate that such person is a registered interior designer, unless such person (1) has obtained a certificate of registration as provided in sections 20-377k to 20-377v, inclusive; or (2) is an architect licensed in this state.
. The Court takes the following facts from the parties' Stipulations of Fact dated May 7, 2009. See Pls.’ Supplemental Brief in Support of Motion for Preliminary Injunction [doc. # 32] Ex. A.
. The Commissioner takes the position that Ms. Roberts may legally refer to herself as an "interior designer” without registering with the Department because she previously referred to herself as an "interior designer” for at least one year immediately preceding October 1, 1983, the date that
. For example,