Declaration of Clark Neily in Support of Plaintiffs Motion for Summary Judgment Exhibit 5

Transcription

1 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 1 of 10 Declaration of Clark Neily in Support of Plaintiffs Motion for Summary Judgment Exhibit 5

2 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 2 of 10 Defendants Responses to Plaintiffs First Set of Interrogatories (Served: 8/14/09; Unsworn Resp. Rec d 9/17/09; Verified Resp. Rec d 10/6/09) 1. On or about June 1, 2009, you were advised by means of Plaintiffs Complaint for Declaratory and Injunctive Relief in this case that a non-licensed company, PRIDE Enterprises, offers statutorily forbidden space planning services on its website and that those services were likely being performed by people who were not state-licensed interior designers. Prior to the date you received this Interrogatory, did you take any steps to investigate that situation, and if so, please describe those steps including the identity of the persons involved. If you did not take any steps to investigate that situation, please explain why you did not. 2. Please state whether you believe that the performance of space planning services by employees of PRIDE Enterprises presents a risk to the health, safety, or welfare of people in Florida and explain why or why not 3. If your response to Request for Admission No. 38 (regarding costs imposed by interior design laws) was anything other than an unqualified admit, please explain your response and the basis for any qualification or denial. 4. Do you contend that the performance of interior design services in nonresidential applications by nonlicensees presents a risk to public welfare that the performance of interior design services in nonresidential settings by licensees does not? If so, please explain the basis for that contention, including any evidence you have to support it. 5. Florida law generally forbids people who are not statelicensed interior designers from practicing interior design, Fla. Stat (1)(b), but exempts from that restriction the performance of interior design services for any residential application, Fla. Stat (6). Do you contend that the performance of interior design services by nonlicensees in nonresidential settings presents a risk to public welfare that the performance of interior design services by nonlicensees in residential settings does not? If so, please explain the basis for that contention, including any evidence you have to support it. 6. Do you contend that the restrictions on the practice of interior design imposed by Fla. Stat (1)(b) advance a legitimate state interest? If so, please identify No action was taken with respect to PRIDE. Board members are not involved in investigations until cases are presented to the probable cause panel. The allegations of the complaint were not treated as a complaint against PRIDE because it is not an entity required to have a certificate of authorization pursuant to (3), Fla. Stat. and the allegations did not address a specific violation or incident. The Board does not take a position on whether unlicensed practice presents a risk to the health safety and welfare of the public. Rather, the Board is charged with enforcing the law as adopted by the Legislature. The value judgment of whether this, or any, regulation is needed or desirable is one made by the Legislature. The Board does assert that it was rational for the Legislature to have concluded that the adoption of licensing for interior designers was in the public interest in the furtherance of its police power responsibilities. The Board has no information on the economic effect of the law. Legislature. The Board does assert that it was rational for the Legislature to have concluded that there is a difference between places where the general public is invited and private residences with respect to the need for regulation. Legislature. The Board does assert that it was rational for the Legislature to have concluded that there is a difference between places where the general public is invited and private residences with respect to the need for regulation.

3 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 3 of 10 each such interest and explain how you believe the restrictions in Fla. Stat (1)(b) advance each interest identified. 7. Are you aware of any evidence that the limitations on the practice of interior design set forth in Fla. Stat (1)(b) actually protect public health and welfare, protect consumers, or advance any other legitimate state interest? If so, please describe that evidence. 8. Has the Smith Thompson law firm ever initiated disciplinary proceedings (including, without limitation, the sending of a warning or cease-and-desist letter) against a person or business for an alleged violation of Florida s interior design law without a complaint or inquiry first having been made by a person or business unaffiliated with Smith Thompson or the State Board? In other words, has Smith Thompson ever commenced an investigation or disciplinary proceeding for potential violations of Florida s interior design law on its own initiative? If so, please explain the circumstances surrounding each such investigation or proceeding (or, if they are too numerous to conveniently document, then please summarize how such proceedings have been initiated by Smith Thompson in the past). Legislature. The Board is not required to produce evidence of the rational relation to a legitimate state objective. In light of this, the Board has no specific information. The law firm of Smith, Thompson, Shaw & Manausa, P.A., does not proactively seek violations of the interior design law. The law firm does not actively search the Internet or magazine advertisements to find a violation. The law firm reacts to those complaints filed by the public, consumers, other licensees, and the various building departments throughout the state. The only time the law firm opens a case on it own initiative, is when during the course of an investigation, it is discovered that other individuals or businesses may be in violation. For example, if the law firm received a complaint regarding possible unlicensed activity, and during the investigation it is learned that a licensee may be aiding or abetting this activity, the law firm will open a case against the licensee. It would appear that the law firm does open cases on its own initiative if someone reviewed the files because in many of the investigative reports list the investigator as the complainant. This is misleading because the investigator puts his own name on the report as the complainant when a complaint is filed anonymously, comes from the Department of Business and Professional Regulation, or is case opened based on another investigation. During the period of approximately September, 2006 through April, 2007, the law firm opened around 12 cases that were provided by the Department of Business and Professional Regulation. These cases were all based on applicants using the title interior designer on their application. The law firm began receiving these cases when Emory Johnson began reviewing application files for the Department. Although Mr. Johnson had a contract with the law firm as an expert witness for disciplinary case, the Department hired him to review application files as well. These cases were all filed on Mr. Johnson s initiative, and not at the bequest of the Department or the law firm. The law firm has not received any other complaints involving applications, once Mr. Johnson was terminated by the Department in his capacity of reviewing licensure files. It should be noted that the law firm does not have a 2

4 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 4 of 10 financial incentive to open unlicensed cases. The law firm s contract with the Board of Architecture and Interior Design is structured in such a way that the law firm bills hourly for the work done on all unlicensed cases. However, there is a limit each year on how much can be paid by the Board for such work, and each year the law firm has reached this amount well before the expiration of the twelve month period. Therefore, every year the law firm works for many months without receiving any compensation for unlicensed activity. Given the number of cases that are routinely filed each year, and the limited amount of compensation available, there is no financial incentive for the law firm to actively seek out unlicensed cases. 9. Please state the total number of individuals currently registered as interior designers in Florida, and identify how many of those individuals obtained their license through what is commonly referred to as a grandfather provision, under which people were at one time allowed people to obtain an interior design license in Florida without demonstrating the current statutory requirements of education, experience, and examination reflected in Fla. Stat (For purposes of clarification, this Interrogatory is not meant to encompass persons who were licensed as interior designers in Florida by virtue of the reciprocity provisions set forth in Fla. Stat (3)(a) & (b) or the provision for licensing architects as interior designers set forth in Fla. Stat (5)(b)). Legislature. The Board does assert that it was rational for the Legislature to have concluded that there is a difference between places where the general public is invited and private residences with respect to the need for regulation. The number of individuals registered as Interior Designers includes: Current number of interior designers as of 9/4/09 Current, active = 2850 Delinquent, active = 245 Current, inactive = 148 Delinquent, inactive = 40 Total 3283 Licensed prior to 12/31/1998: Current, active = 1632 Delinquent, active = 156 Current, inactive = 118 Delinquent, inactive = 34 Total 1940 Licensed prior to 12/31/1990: Current, active = 947 Delinquent, active = 100 Current, inactive = 67 Delinquent, inactive = 21 Total 1135 These numbers give a rough estimate of the numbers of individuals who may have been granted licenses under the grandfather provisions of the law. In order to get an 3

5 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 5 of Do you contend that Florida s interior design law produces local benefits as that term is used by the Supreme Court in Pike and its progeny? If so, please identify each such benefit and identify any supporting evidence you are aware of to support its existence. 13. Does the Board affirmatively disclose to the public (i.e. without specifically being asked) which Florida registered interior designers received their license or registration without meeting all of the criteria described in Fla. Stat (2), including interior designers who were registered pursuant to the former statutory grandfather provision? If not, please explain why not. 14. Please state the total amount of money, per year, that the Board has derived from fines, settlements, and any other proceeds related to alleged violations of any provision of Florida s interior design law for the past five years. 17. Under Florida law, as amended by HB 425 in 2009, a manufacturer of commercial food service equipment or the manufacturer s representative, distributor, or dealer or an employee thereof who prepares designs, specifications, or layouts for the sale or installation of such equipment is exempt from licensure as an architect or interior designer if the terms of Fla. Stat (8)(a)-(c) are complied with. Do you contend that there is a rational basis for exempting from licensure the persons described above but not exempting upon the same terms manufacturers, distributors, and dealers of commercial office furnishings (including workstations, manufactured partitions, manufactured panels, and other manufactured spatial dividers)? If so, please fully explain your contention, including any evidence that supports it. 18. Are you aware of any professions, practices, systems, laws, and/or regulations that could serve to protect the public from potential mistakes by an interior designer working on a nonresidential project (for example, the accurate number, Defendants would have to inspect each of the files and determine on a case by case basis which ones would be in which categories. This would be overly burdensome and if Plaintiffs want this information then the files can be made available for inspection. Legislature. The Board does assert that it was rational for the Legislature to have concluded that licensing interior designers would provide benefits to the people of Florida. No. There is no requirement in the statute that such information be disclosed. The law firm does not segregate those amounts collected in fines and costs between the professions of architecture and interior design. The following is a summary of the fines imposed by the Board for both violations of architecture and interior design practice act: June 30, 2005 Licensed $215,278 Cases Unlicensed $166,049 Cases Total $381,327 June 30, 2006 $316,230 $203,273 $519,503 June 30, 2007 $98,179 $224,255 $322,404 June 30, 2008 $173,415 $173,906 $347,321 Legislature. The Board does assert that it was rational for the Legislature to have concluded that there is a difference between places where the general public is invited and commercial kitchens which are not open to the public. No. 4

6 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 6 of 10 presence of an architect, engineer, or general contractor who is responsible for code compliance; the existence of building and safety codes; government inspectors; state and local permitting processes; etc.)? If so, please describe each such profession, practice, system, law, and/or regulation and briefly explain how it could serve to protect the public from potential mistakes by an interior designer working on a nonresidential project. 19. Do you contend that the professions, practices, systems, laws, and/or regulations referred to in Interrogatory No. 18 above and in your response to that Interrogatory are insufficient to properly protect public health, safety, and welfare? If so, please explain the basis for that contention including any evidence you have to support it. 20. Do you contend that the value of the economic benefits produced by Florida s interior design regulations exceed the economic costs imposed by those regulations? If so, please explain the basis for that contention including any evidence you have to support it. 21. It appears from the summaries of disciplinary cases and/or probable cause panels posted on Smith Thompsons s website that proceedings were initiated against the following persons solely because they used the term interior designer in describing themselves on their applications for licensure submitted to the State Board: Nicole Michelle Arwood, Case No ; Raisa Gonzalez, Case No ; Beth A. McKeown, Case No ; Madlyn Annette Santini, Case No ; Amy Lee Neumann, Case No ; Lisa Platt, Case No ; Cynthia Bodnar, Case No ; RaChelle Peloso, Case No ; Tonya Whitaker, Case No ; Chelsey S. Hargarten, Case No ; Heather D. Lollie, Case No Please state whether this is true as to each such person and explain how Smith Thompson became aware of the fact that those persons had used the term interior designer to describe themselves on their applications for licensure. 22. During his deposition on September 23, 2009, your prosecuting attorney, David Minacci, was presented with evidence that Staples office supply company was violating Florida s interior design law by representing on its web site that it provides space planning services for nonresidential applications, including specifically space planning for work stations and cubicle/panel systems. Mr. Minacci was also advised that two other large office supply companies, Office Max and Office Depot, were advertising the provision of similar space planning services under similar circumstances. By copy of this Legislature. The Board has no information with which to answer this question. During the period of approximately September, 2006 through April, 2007, the law firm opened around 12 cases that were provided by the Department of Business and Professional Regulation. These cases were all based on applicants using the title interior designer on their application. The law firm began receiving these cases when Emory Johnson began reviewing application files for the Department. Although Mr. Johnson had a contract with the law firm as an expert witness for disciplinary cases, the Department hired him to review application files as well during this period. These cases were all filed on Mr. Johnson s initiative, and not at the request of the Department or the law firm. The law firm has not received any other similar complaints involving applications, once Mr. Johnson was terminated by the Department in his capacity of reviewing licensure files. As to the three organizations referenced, enforcement files have been opened, notification letters have been sent, and investigations are ongoing. See documents attached hereto. 5

7 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 7 of 10 Interrogatory and attached documents (PL ), Plaintiffs have furnished evidence from which a reasonable person would conclude that Staples, Office Max, and Office Depot have violated Florida s interior design law, both by offering space planning services for non-residential applications (including specifically space planning services relating to partitions and panel systems) and by actually performing such services for customers in Florida without the statutorily mandated certificate of authorization. Please state what actions, if any, you have taken regarding the apparent violations of Florida s interior design law by Staples, Office Max, and Office Depot, including the identity of the persons involved in any investigation or enforcement efforts. If you have not taken any steps to investigate possible violations of Florida s interior design law by these companies or otherwise enforced the law against those companies, please explain why not. Defendants Responses to Plaintiffs First Set of Requests for Admission (Served: 8/14/09; Resp. Rec d 9/17/09) 1. There is no statutory definition for the terms designs, consultations, studies, drawings, or specifications as used in Fla. Stat (8). 2. Anyone may perform residential interior design services in Florida with no occupation-specific license, registration, or other government approval (For clarification, this Request excludes generic requirements such as a county business license or state tax identification number.). 3. It is lawful for Eva Locke, Pat Levenson, and Barbara Vanderkolk Gardner to perform interior design for any residential application in Florida even though they are not registered or licensed under Chapter 481, Florida Statutes. 4. The services provided to you by the law firm of Smith, Thompson, Shaw & Manausa (hereafter Smith Thompson ) include receiving and reviewing complaints about the unlicensed or improper practice of interior design, preparing and issuing cease-and-desist letters on behalf of the Board, presenting cases to the Board s probable cause panel, and prosecuting complaints at disciplinary hearings. 5. The Board s prosecuting attorney David Minacci has. David Minacci has stated publicly that the law stated publicly that Smith Thompson is definitely more firm has been more aggressive enforcing the interior aggressive than the State Board had been concerning design practice act then when the Department provided the investigation and enforcement of Florida s interior design same services. These statements was based on the fact law prior to engaging Smith Thompson s services. that the law firm has received more complaints, opened more investigations, issued more notice and orders to 6

8 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 8 of The two tables (one Word and one Excel) ed to your counsel by Plaintiffs counsel on July 13, 2009, are each a substantially accurate summary of the Board s interior-design-related enforcement actions from 2002 to the present. 7. Most of the Board s interior-design-related enforcement actions from 2002 to the present relate to people using the term interior designer (or other words to that effect ) without being licensed to do so. 11. PRIDE Enterprises does not possess a certificate of authorization to practice interior design in Florida. 12. Upon at least one occasion, PRIDE Enterprises has provided space planning (as that term is defined in Fla. Stat (12)) services for a non-residential application without a certificate of authorization. 14. Despite having provided space planning services without a certificate of authorization, neither PRIDE Enterprises nor any officer or employee of PRIDE Enterprises has been disciplined by the Board. 15. Under Florida law, a nonlicensee may not prepare a drawing relating to the flooring (including without limitation carpets, rugs, hardwood, laminate, tile, etc.) in a nonresidential building or structure. 16. Under Florida law, a nonlicensee may not prepare a drawing relating to the wallcoverings (including, without limitation: wallpaper, paneling, ceramic tile, tile board, etc.) in a nonresidential building or structure. 17. Under Florida law, a nonlicensee may not prepare a drawing relating to lighting fixtures in a nonresidential building or structure. 18. Under Florida law, a nonlicensee may not prepare a drawing relating to plumbing fixtures in a nonresidential building or structure. cease and desist, filed more Administrative Complaints, and imposed more fines than when the Department provided the same services. The main reason the Board wanted to privatize the disciplinary function is because it want stronger enforcement of the laws in relation to both the unlicensed practice of architecture and interior design. that review of the enforcement files shows this to be true; some of the Board members were not on the Board until after that date and would have no knowledge. Defendants are without knowledge needed to respond to this request. that no disciplinary actions have been taken against PRIDE. In addition, the request is denied because a licensed electrician (who would be excluded from Plaintiffs definition of Licensee ) could prepare lighting plans. In addition, the request is denied because a licensed plumber (who would be excluded from Plaintiffs definition of Licensee ) could prepare plumbing plans. 7

9 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 9 of Under Florida law, a nonlicensee may not prepare a drawing relating to furniture in a nonresidential building or structure. 20. Under Florida law, a nonlicensee may not prepare a drawing relating to file cabinets in a nonresidential building or structure. 21. Under Florida law, a nonlicensee may not prepare a drawing relating to the shelving in a retail clothing store. 22. Under Florida law, a nonlicensee may not prepare a drawing relating to product display racks in a retail clothing store. 23. Under Florida law, a nonlicensee may not prepare a drawing relating to the dressing rooms in a retail clothing store. 24. Under Florida law, a nonlicensee may not prepare a drawing relating to the checkout counters in a retail clothing store. 25. Under Florida law, a nonlicensee may not prepare a drawing relating to the placement of chairs and couches in a hotel lobby. 26. Under Florida law, a nonlicensee may prepare drawings and specifications relating to the placement of a deep fryer in a restaurant kitchen, provided the nonlicensee complies with the terms of Fla. Stat (8), as amended in 2009 by HB Under Florida law, a nonlicensee may prepare drawings and specifications relating to the placement of a commercial steam cooker in a restaurant kitchen, provided the nonlicensee complies with the terms of Fla. Stat (8), as amended in 2009 by HB Under Florida law, a nonlicensee may prepare drawings and specifications relating to the placement of a stovetop in a restaurant kitchen, provided the nonlicensee complies with the terms of Fla. Stat (8), as amended in 2009 by HB

10 Case 4:09-cv RH-WCS Document Filed 12/11/09 Page 10 of Under Florida law, a nonlicensee may prepare drawings and specifications relating to the placement of a food preparation counter in a restaurant kitchen, provided the nonlicensee complies with the terms of Fla. Stat (8), as amended in 2009 by HB Some of the people currently licensed by the State Board as interior designers in Florida obtained their license without demonstrating that they had passed any examination of any kind. 33. Some of the people currently licensed by the State Board as interior designers in Florida obtained their license without demonstrating that they had graduated from an interior design program. 34. Some of the people currently licensed by the State Board as interior designers in Florida obtained their license without demonstrating that they had ever studied interior design in any school at any time. 35. Some of the people currently licensed by the State Board as interior designers in Florida obtained their license without demonstrating that they had performed any of the diversified interior design experience referred to in Fla. Stat People who obtained their interior design license in Florida through what is commonly referred to as a grandfather provision (and which at one time allowed people to obtain an interior design license without demonstrating the current statutory requirements of education, experience, and examination) are not required to disclose that fact to potential customers. 37. People who obtained their interior design license in Florida through what is commonly referred to as a grandfather provision (and which at one time allowed people to obtain an interior design license without demonstrating the current statutory requirements of education, experience, and examination) are not required to make any disclosure to potential customers regarding their specific credentials or qualifications. that some of the current license holders got their licenses under the grandfather provisions of the law and therefore may not have completed this requirement. that some of the current license holders got their licenses under the grandfather provisions of the law and therefore may not have completed this requirement. that some of the current license holders got their licenses under the grandfather provisions of the law and therefore may not have completed this requirement. that some of the current license holders got their licenses under the grandfather provisions of the law and therefore may not have completed this requirement. 9