Louisiana Florists (new challenge)

Introduction

Should the government have the power to say who may or may not become a florist?  Or do Americans have the right to pursue the occupation of their choice free from such excessive and arbitrary government roadblocks?  To arrange and sell flowers in Louisiana, aspiring florists must first obtain a government-issued license by passing a subjective examination that is judged by their future competition—florists who hold a government-issued license.

Louisiana is the only state in the nation that requires would-be entrepreneurs to pass a licensing exam before they can create and sell floral arrangements. If Louisiana can license florists, there is no limit to what it can license or to the burdens it can impose on honest, productive livelihoods.

States That License Florists

Monique Chauvin, Leslie Massony and Michelle Domingue are all talented at arranging flowers—and they would all like to work as florists without having to jump through the irrational and anti-competitive hoops created by Louisiana’s florist licensing law. But because none of them has passed the state-mandated licensing exam, the only way they can arrange flowers for a living is if they work for a business that employs a licensed florist. That requirement violates their fundamental right to pursue the occupation of their choice without arbitrary government interference. The law threatens to shut down Monique’s thriving small business—Mitch’s Flowers, which is based in New Orleans—and cost Leslie and Michelle their jobs because the licensed florist Monique employed passed away in February. This gives Monique 90 days to hire another licensed florist—which she does not want to do because employing a licensed florist is a pointless expense and does not improve the quality of floral arrangements—or she will have to close her shop. These gifted and hard-working individuals should not have their livelihoods depend upon whether Monique either holds a license herself or employs someone who has the state’s stamp of approval to arrange flowers.

On March 4, 2010, the Institute for Justice filed a civil rights lawsuit, Chauvin v. Strain, in the U.S. District Court for the Eastern District of Louisiana against the Commissioners of the Louisiana Horticulture Commission seeking to have Louisiana’s anti-entrepreneur, anti-competitive and anti-consumer florist licensing scheme declared unconstitutional. Institute lawyers will argue that there is no legitimate justification for excluding even a single person from a harmless occupation like floristry on the grounds that government officials believe that person lacks sufficient qualifications or is not talented enough to do the work. Among our sacred rights as American citizens is the ability to earn a living in the occupation of our choice free from arbitrary or unreasonable government interference. By presuming to determine who is good enough to work in a harmless occupation like floristry, Louisiana violates that right.

An Unconstitutional Arrangement: Louisiana’s Florist Licensing Regime

Only one state in the nation imposes any type of testing or credentialing requirement for people who want to earn a living arranging and selling flowers. Louisiana alone requires individuals to pass an exam in order to work as a licensed florist. (This is the Institute for Justice’s second challenge to this law. The first was left unresolved after IJ’s clients either passed away or were forced out of the state as a result of Hurricane Katrina.) There are no public health or safety justifications for testing florists prior to allowing them to arrange and sell flowers. There are also no “consumer protection” or “industry enhancement” rationales to justify the license requirement.

The licensing exam, which is offered four times a year, consists of two parts: A one-hour written test and a four-hour practical test. ¹ The exam’s written component covers such topics as design principles, color schemes, flower and foliage types, plant care, and the mechanics of flower arranging. The practical component requires applicants to create four separate floral arrangements in four hours. The practical exams are graded by three to six judges who are working licensed florists. The notion that anyone beyond consumers themselves should make subjective judgments about who is and who is not “good enough” to make and sell floral arrangements is outrageous enough. And yet Louisiana compounds that outrage by empowering the very people most likely to abuse that power—working state-licensed florists—to sit in judgment of the very people who wish to compete against them. Louisiana thus empowers a small group of licensed florists to decide who may compete with them and who may not.

The 13-member Louisiana Horticulture Commission administers the florist-licensing scheme, including the highly subjective licensing exam. ² Applicants must pass both the written and the practical portions of the exam with a score of at least 70 percent. ³ The Commission also regulates a variety of other horticulture related industries, including nursery stock dealers, cut flower dealers, landscape architects, flower wholesalers, landscape contractors and utility arborists. ⁴ People who sell “cut flowers,” as opposed to floral arrangements, are only required to have a certificate, which is available to anyone for $70 per location where the certificate holder intends to sell cut flowers; ⁵ no license or certificate is required to prepare arrangements using dried plants or artificial materials. ⁶ So any person in Louisiana may sell a rose or baby’s breath by themselves, but if they want to put them together and sell them, then they must become a government-licensed florist.

Arranging flowers is a creative, artistic process in which beauty is very much in the eye of the beholder. What some people find beautiful, others will find unappealing. An avant-garde’s cutting-edge design may be a traditionalist’s eyesore. But that is precisely how art stays fresh—by constantly experimenting, reinventing and transforming itself. Artistic vocations, like flower arranging, or painting, or photography or even writing, must be allowed to do the same and should not be stifled by government-imposed orthodoxies. Not surprisingly, there is widespread agreement among even licensed florists that the knowledge and skills tested on the exam are outdated and bear little relation to the skills that modern florists actually need. And despite a cottage industry of floral design schools that “teach the test,” neither taking a test-preparation course nor even having years of experience arranging flowers appears to be any predictor of who will and who will not pass the exam. Regardless of the quality of the exam, the fundamental point is that it is not the government’s place to demand such an exam in the first place as a requirement to practice this occupation. All that should be needed to get into business in Louisiana as a florist are a passion for the job and a desire to please her customers.

Among the perverse effects of Louisiana’s florist licensing law is that Monique’s livelihood—and those she employs—depends entirely on being able to find a state-licensed florist who is willing work for an unlicensed shop owner like herself. A business that employs at least one state-licensed florist may employ an unlimited number of unlicensed individuals to arrange and sell flowers. Keep in mind, there is no requirement that the state-licensed florist supervise unlicensed individuals as they arrange and sell flowers, or even be on-site. There is no requirement that the licensed florist inspect arrangements before they go out the door. All that is required is that such a person be on the payroll. ⁷ These facts only serve to underscore how pointless this requirement is. Yet, without that licensed person on staff, Monique is out of business.

The lack of any genuine public policy justification is further illustrated by the fact that the Horticulture Commission not only gives a 90-day grace period for shops that lose their licensed florist during which they may operate and arrange flowers without a licensed florist on staff, but also fails to require shops operating under the grace period to disclose their unlicensed status to customers. ⁸

Louisiana law permits the Commissioner of Agriculture to assess a civil penalty of $250 for each violation of the florist licensing laws; each day on which a violation occurs is considered a separate offense. ⁹

Louisiana’s Licensing Exam Fails To Make the Grade: Experiment Demonstrates Licensed Florists Themselves Can’t Tell Licensed from Unlicensed Floral Displays

In a social science experiment conducted in January 2010, Dick M. Carpenter II, Ph.D., the Institute for Justice’s director of strategic research, asked Louisiana-licensed florists as well as unlicensed florists from across the border in Texas to judge a random line-up of floral arrangements—25 purchased from shops in regulated Louisiana and 25 purchased from shops in unregulated Texas. The result? Not even the licensed Louisiana florists found any difference in quality that could be attributed to licensure. ¹⁰

This undermines any claim by backers of Louisiana’s licensing scheme that licensure improves the quality of floral arrangements in the state. Indeed, in focus groups, the florist-judges were not at all surprised that ratings were essentially the same regardless of whether they came from Louisiana or Texas, commenting that good florists could be found anywhere. And almost all of the judges—including the licensed florists from Louisiana—expected no difference in the quality of arrangements because of Louisiana’s licensing law.

Many in the focus groups thought that instead of producing quality florists, the licensing scheme served two purposes: raising money for the state through testing and license fees and shutting out competition. And florists scoffed at the idea that licensing florists is necessary to protect the public. As one Louisiana florist concluded, “You can’t really hurt anybody with a flower.”

In short, the experiment suggests that Louisiana’s licensing scheme does nothing but protect existing license-holders from fair competition.

The Plaintiffs

Monique Chauvin is the owner and operator of Mitch’s Flowers, a New Orleans floral shop she purchased in 1999 from the original owner, who opened the shop in 1986. Monique is a talented floral arranger whose work is regularly featured in magazines, but she has not been able to pass the arbitrary florist licensing exam, having taken and failed it in the spring of 2000. Monique’s shop is extremely popular and has been voted by residents as “Tops of the Town” numerous times in New Orleans magazine. Until very recently, Monique employed a retail florist whose license hung on her wall, but sadly that license holder passed away in February, meaning that Monique’s business is now in jeopardy. Unless Monique has a regularly employed license holder on staff—or unless she passes the licensing exam herself—the Commission has the authority to prohibit Monique and her unlicensed employees from arranging and selling flowers. If she submits herself again to the licensing exam, existing license holders could once again decide to fail Monique in order to shut down their competition.

When IJ first litigated against this government-imposed barrier to the American Dream, as many as two-thirds of those who took the florist exam failed—about twice the failure rate of Louisiana’s bar exam. ¹¹ Such needless setbacks are especially harmful in these already-tough economic times. Yet even if this economic barrier were lowered so only one person failed this exam and was thereby barred from pursuing this honest occupation, that in and of itself would be an unconstitutional infringement of that person’s right to pursue the livelihood of their choice. It is simply not the government’s role to decide who may or may not enter this field.

Leslie Massony and Michelle Domingue both work at Mitch’s Flowers as floral clerks. Leslie has been working in the New Orleans floral industry and arranging flowers since 1983. Leslie took the exam two years in a row (in the early 1990s) and failed both times. Leslie desires to do freelance work, but Louisiana law prohibits unlicensed individuals from arranging and selling flowers unless they are working for a business that employs a state-licensed retail florist. ¹² Michelle recently moved from Dallas where she worked for more than 20 years as a florist. She has never taken the Louisiana exam because the exam tests skills no longer used in modern floristry. The state’s license requirement threatens to close Monique’s store, and stands as an impediment to Leslie’s ability to engage in free lance work and the possibility of Michelle opening her own business.

The Institute also represents Debby Wood, who took and failed the exam in May 2004. Debby holds a Masters of Fine Arts in Piano Performance from Tulane and is a generally creative and talented individual. In January 2004, she made six floral arrangements for her mother-in-law’s birthday party and received so many compliments she decided to pursue floral arranging as a side business. She created her own business, Debra Hirsch Wood Designs, acquired a tax ID number, and completed all the other necessary paperwork to start her business. She then found out Louisiana requires individuals to have a license before they can arrange and sell flowers. ¹³ Undeterred, Debby decided to take the licensing exam. To prepare, she enrolled in a two-week, 80-hour course and spent more than $2,000 preparing to take the exam between the course and supplies. She not only attended the classes, she took a $150 refresher course on the Saturday before the exam and studied hard on her own—going so far as to tape-record portions of the Commission’s florist handbook, make flash cards, and practice with flowers and greenery to perfect the techniques she would be required to use on the exam. She was shocked when she found out she had failed the test.

Protecting Economic Liberty is a Nationwide Concern

This case is about more than just florists in Louisiana. ¹⁴ The U.S. Constitution protects every American’s right to earn an honest living in the occupation of their choice and prohibits the government from erecting barriers to entrepreneurship that are arbitrary or do nothing more than keep entrepreneurs from competing with existing businesses. Thus, this case is about setting a national precedent that will stop the government from licensing harmless occupations.

The unfortunate reality is regulatory schemes like Louisiana’s florist licensing law are commonplace. Occupations from shorthand court reporter to fence installer to interior designer are licensed by the government for no legally justifiable reason. Such occupational licensing schemes continue to proliferate. Since the 1950s, the percentage of occupations in the United States that require individuals to obtain permission from the government, in the form of a license, before they can pursue their chosen occupation has grown from a mere 5 percent to more than 30 percent. ¹⁵ This lawsuit is part of a broader effort by the Institute for Justice to open opportunities for entrepreneurs facing illegitimate barriers to entry in other fields and to educate Americans about the anticompetitive nature of occupational regulations.

Occupational licensing regimes like Louisiana’s restrictions on arranging flowers without a license are the inevitable result of judges refusing to judge. It is the judiciary’s responsibility to strike down laws that violate civil rights—like the right to work in the occupation of our choice. We have replaced a fear of “judicial activism” with something just as bad—judicial passivism. This began 150 years ago right here in New Orleans when the U.S. Supreme Court refused to strike down a corrupt state-sanctioned monopoly in the aptly named Slaughter-House Cases.

After the Civil War, newly emancipated slaves counted economic liberty as among the most cherished of their newly held civil rights. To protect entrenched businessmen from competition, however, Southern governments soon suppressed economic opportunities for their newest citizens—as well as for entrepreneurs from the North who were seeking to capitalize on the economic opportunities presented by Reconstruction—by heavily regulating entry into trades and businesses. The national government moved quickly to curtail these abuses by passing first the Civil Rights Act of 1866 and then the 14th Amendment, both of which sought to protect the economic liberty of all Americans among the “privileges or immunities of citizenship” that states were prohibited from violating.

But in the 1873 decision from the Slaughter-House Cases, which arose out of a Louisiana law that created a monopoly in the butcher industry, a sharply divided U.S. Supreme Court effectively read the Privileges or Immunities Clause out of the Constitution by a 5-4 vote. That decision gave states a virtual carte blanche to enact laws that restricted economic opportunities without fear of interference from the federal courts. States soon seized on this unchecked power to use regulation to protect all sorts of entrenched interests. And in the spirit of Slaughter-House, states continue to regulate with impunity entry into trades and professions. These onerous restrictions often have nothing to do with protecting public health and safety and everything to do with shielding entrenched interests from fair competition.

What began in New Orleans must end in New Orleans. It is time for the courts to declare Louisiana’s anti-competitive florist regulations unconstitutional. The Institute for Justice aims to restore the 14th Amendment’s Privileges or Immunities Clause to its proper role as the foremost constitutional protection for the right to earn an honest living.

Putting the Rational Basis Test on Trial 

The plaintiffs have asked the court to declare that, under the U.S. Constitution, Louisiana’s anticompetitive florist licensing laws violate their due process right to earn an honest living and their right to economic liberty protected by the Privileges or Immunities Clause of the 14th Amendment. This lawsuit therefore goes to the very core of a cherished constitutional right: The freedom to earn an honest living. The plaintiffs in this case ask for nothing more than the opportunity to make their livelihood arranging and selling flowers without interference from Louisiana’s oppressive licensing requirements. It is difficult to conceive of an occupation less in need of government regulation than floral arranging. Forcing florists to pass a highly subjective licensing examination that even experienced florists are unable to pass is the very essence of grassroots tyranny.

In challenging Louisiana’s floral cartel, this lawsuit seeks to establish constitutional limits on government’s power to condition entry into a chosen occupation. That power must be limited to enacting laws that actually advance significant governmental interests such as protecting health and safety. Deciding who may or may not become a florist is not a significant governmental interest. Likewise, erecting anti-competitive barriers on behalf of special interests is not a legitimate government purpose. There is simply no valid reason to license florists because there is no risk to anyone from buying floral arrangements from unlicensed florists.

The U.S. Constitution prevents the government from improperly interfering with citizens’ ability work in the occupation of their choice. The architects of the 14th Amendment understood that economic liberty is a fundamental right of American citizenship and sought to protect people’s basic right to earn a living free from illegitimate government interference. Unfortunately, the U.S. Supreme Court has rejected that view by classifying the right to earn a living as a non-fundamental right. As a result, the government can restrict a person’s right to pursue his or her chosen livelihood for virtually any reason, no matter how flimsy or pretextual. Under the Supreme Court’s so-called rational basis test, courts accept any “conceivable” justification for a challenged law, even justifications for which there is not a shred of factual evidence. Inevitably, courts have treated the rational basis test as little more than a rubber stamp, allowing even the most blatantly anti-competitive laws to stay on the books by masquerading as health and safety measures. Courts routinely uphold laws regardless of whether the purported “rational basis” actually motivated the law’s adoption and regardless of whether the law advances any actual government interest. This must change if the right to earn an honest living is to occupy its rightful place in Constitutional jurisprudence and the American Dream.

We therefore intend to put the rational basis test on trial, so to speak. We will argue that there is simply no legitimate reason to keep anyone out of the floral business, and in doing so reveal the injustice at the heart of the rational basis test. The Institute aims to strike down this clearly arbitrary and anti-competitive law, and ultimately to restore economic liberty to its rightful place as a fully protected fundamental right.

Litigation Team

The lead attorney in this case for the Institute for Justice is attorney Tim Keller, the executive director of the Institute for Justice Arizona Chapter, who scored a victory against eminent domain abuse when he defended brake shop owner Randy Bailey from Mesa, Ariz.’s attempt to seize Randy’s shop in order to demolish it to build a locally owned ACE Hardware store. Keller will be joined by William H. Mellor, president and general counsel of the Institute for Justice, who successfully challenged Tennessee’s casket retailing monopoly, New York City’s ban on commuter vans and other government-created barriers to entrepreneurship.

Assisting the Institute for Justice as local counsel is law professor and lawyer Dane Ciolino, who practiced commercial and intellectual-property litigation with the New York City law firm of Cravath, Swaine & Moore, LLP, and later with the New Orleans law firm of Stone, Pigman, Walther, Wittmann, LLC, and whose teaching and scholarly interests include legal ethics, criminal law/procedure and contracts.

Founded in 1991, the Institute for Justice has vindicated the rights of entrepreneurs nationwide in their fights against arbitrary government regulation. Among IJ’s economic liberty victories are:

• Swedenburg v. Kelly—The Institute for Justice successfully waged the nation’s leading legal battle to reestablish the American ideal of economic liberty when, on May 16, 2005, the U.S. Supreme Court struck down discriminatory laws that existed only to protect the monopoly power of large, politically connected liquor wholesalers. Vintner entrepreneurs Juanita Swedenburg and David Lucas joined wine consumers and IJ in filing this federal lawsuit as a challenge to the ban on direct interstate wine shipments in New York. The case raised issues of Internet commerce, free trade among the states and regulations that hamper small businesses and the consumers they seek to serve.
• Diaw v. Washington State Cosmetology, Barbering, Esthetics, and Manicuring Advisory Board—In March 2005, after being sued by the Institute for Justice Washington Chapter just seven months earlier, state bureaucrats exempted hairbraiders from discriminatory cosmetology licensing requirements.
• Armstrong v. Lunsford—The Institute for Justice opened the hairbraiding profession in Mississippi in 2005 when the state Legislature responded to this lawsuit, filed in federal court in 2004, by allowing IJ’s clients to continue their entrepreneurship without obtaining a needless government license.
• Farmer v. Arizona Board of Cosmetology—In 2004, as a result of an IJ-AZ lawsuit, the Arizona Legislature exempted hairbraiders from the state’s outdated cosmetology scheme.
• Wexler v. City of New Orleans—In 2003, the Institute for Justice successfully persuaded a federal court to strike down an absurd ordinance that prohibited booksellers from selling books on city sidewalks without a government-issued permit.
• Clutter v. Transportation Services Authority—In 2001, the Institute for Justice defeated Nevada’s Transportation Services Authority and its entrenched limousine cartel that had stifled competition in the Las Vegas limousine market.
• Cornwell v. California Board of Barbering and Cosmetology—In 1999, the Institute for Justice defeated California’s arbitrary cosmetology licensing requirement for African hairbraiders.
• Ricketts v. City of New York—The Institute for Justice successfully defended commuter van entrepreneurs in 1999 in a fight against the government bus monopoly that would not allow any jitney entrepreneurs to provide service to consumers in underserved metropolitan neighborhoods in New York City.
• Jones v. Temmer—In 1995, the Institute for Justice helped three entrepreneurs overcome Colorado’s anti-competitive taxicab monopoly to open Denver’s first new cab company in nearly 50 years. IJ used this victory to help break open government-sanctioned taxicab monopolies in Indianapolis and Cincinnati.
• Uqdah v. D.C. Board of Cosmetology—In 1993, the work of the Institute for Justice in court and the court of public opinion led the District of Columbia to eliminate a 1938 Jim Crow-era licensing law against African hairbraiders.

For more information, contact:
Shira Rawlinson,
Communications Coordinator
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320 ext. 229
srawlinson@staging.ij.org