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    4.  – Constitutional Challenges to Florida Licensing Statute Unsuccessful

Constitutional Challenges to Florida Licensing Statute Unsuccessful

CONSTITUTIONAL CHALLENGES TO FLORIDA LICENSING STATUTE UNSUCCESSFUL

By: Robert S. Tanner, Esq.

About the Author: Larry Leiby, Esq. was the founder and first chairman of the Florida Bar Construction Law Committee in 1976. He is the author of the Florida Construction Law Manual. He is Board Certified in Construction Law and was on the Construction Law Certification Committee that creates and grades the tests for construction law board certification. He was awarded the lifetime achievement award by the Florida Bar Construction Law Committee and teaches construction law at the Florida International University College of Law. He can be reached at [email protected]. For more information, please visit www.mkpalaw.com.

When a law interferes with what you want to do, you can try to get the legislature to change or repeal the law or you can try to persuade the courts to strike down the law. One approach to getting a law stricken is by challenging its constitutionality, that is, by arguing that it violates either or both the Florida or United States Constitutions. For example, several years ago an unlicensed contractor challenged the statute that prohibited unlicensed contractors from enforcing contracts for work that required state licensure. See Full Circle Dairy, LLC v. McKinney, 467 S.Fupp.2d 1343 (M.D. Fla. 2006). In that case, the unlicensed contractor wanted to pursue payment of $900,000.00 on a project where it had already been paid $1.4 million. The court held that the statute prohibiting unlicensed contractors from enforcing their contracts was constitutional.

More recently, in Locke v. Shore, 2011 WL 692238 (11 th Cir. March 1, 2011), several individuals, along with the National Federation of Independent Business, sued in federal court to challenge the constitutionality of Florida’s statute requiring interior designers practicing in the commercial (as opposed to a residential) setting to be licensed. The trial court held that the license requirement was constitutional. The matter went up to the United States Court of Appeals for the Eleventh Judicial Circuit.

The Eleventh Circuit analyzed the plaintiff’s arguments based on the First Amendment, the Dormant Commerce Clause, as well as the Due Process and Equal Protection Clauses, and concluded that Florida’s statute requiring a license to practice interior design in a commercial setting was constitutional. The appellate court found that the statute has a legitimate purpose and rational basis, is not overly broad, does not impose substantial burdens on interstate commerce, and does not discriminate against out-of-state residents. Accordingly, the appellate court affirmed the trial court’s ruling that the licensing statute is constitutional.

Although the licensing statutes in these two cases were upheld, courts do strike statutes on constitutional grounds. You may want to talk with your attorneys about mounting a constitutional challenge to a statute that causes you to incur substantial costs or its removal would provide you with substantial opportunity. Your attorneys can review the statute for the many constitutional grounds upon which a statute may be challenged.