Dear Members,

On August 23 I received the results of the "Diane Lupo" case from our Attorney, Mark Lee. As you will read in the order, Judge Helen Shores Lee found that the Interior Design Consumer Protection Act violates the Constitution of the State of Alabama.

Stay tuned,

Linda Gafford

The above styled cause came on before this Court in the form of a non-jury trial. This action is brought by the State of Alabama against Diane Burnette Lupo for violation of Alabama Code 34-15B-1 (1975) or the Alabama Interior Design Consumer Protection Act (Act 2001, No. 01-660). Representing the State of Alabama was the Honorable James M. Smith. Representing the Defendant, Lupo, was the Honorable Mark W. Lee. Lupo was specifically cited for "failing to be registered with Board Pursuant to 8(B) of the Act." In addition to assessing Lupo a fine of $1,500 plus costs of $235, the State of Alabama ordered Lupo to cease and desist from offering interior design services, and advertising to offer interior design services, without being registered. The State of Alabama (thru the State Board of Registration for Interior Design) brings this action to enforce the order of the Board.

Defendant Lupo challenges the constitutionality of the legislation upon which the Board acted in exercising jurisdiction and levying its fine and cease and desist order. In particular, Lupo argues that the Act in question is unconstitutional as being overly broad, unreasonable, and vague.

This Court agrees. Upon hearing the witnesses and arguments of the parties, having considered the evidence and briefs submitted, it is the opinion of this Court, as outlined below, that the Act is overly broad, unreasonable, and vague. Additionally, the Court’s review of Ross Neely Express, Inc., v. Alabama Department of Environmental Management, 437 So.2d 82 (1983), provides case law central to the issue before the Court.

It is well established that the right to due process is guaranteed to the citizens of Alabama under the Alabama Constitution of 1901, Article 1, Sections 6 and 13. This Constitutional right to due process applies in civil actions as well as criminal proceedings. The courts have found that this right is violated when a statute or regulation is unduly vague, unreasonable, or overbroad.

In the case at bar, though the legislative Act affects the practice of interior design and provides regulatory parameters defined as being within the practice of interior design, the evidence shows that the parameters defined by the Act clearly bleeds over into other occupational areas of interior consult not traditionally held out as interior design work. The Court finds the reach of the Act overbroad.

The evidence before the Court also shows that the enforcement of the Act makes it a criminal offense for one to perform in occupational areas of interior consult not traditionally held out as interior design work. The result of which was the creation of uncertainty among established interior decorators who do not perform interior design work or hold themselves out as interior designers, as to which activities they could lawfully perform under the statute. The Court finds that absence of clarity in the statute as unduly vague. In Kahalley v. State, 254 Ala. 482, 48 So.2d 794 (1950), the court stated "Legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a Defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law’s enforcement."

While the Court acknowledges that certain regulatory matters are clearly subject to the police powers of the state of Alabama, the restraint imposed here upon the performance of activities in occupational areas of interior consult not traditionally held out as interior design work is unreasonable. In City of Russellville v. Vulcan Materials Co, 382 So.2d 525 (1980), the court said: "The validity of a police power regulation... primarily depends on whether, under all the existing circumstances, the regulation is reasonable, and whether it is really designed to accomplish a purpose properly falling within the scope of the police power." The evidence before the Court shows unreasonableness of the Act and that the enforcement of the Act has no rational relationship to the health, safety, or welfare of the citizens of the State of Alabama.

For all the reasons outlined above, this court finds for the Defendant, Diane Burnette Lupo, and against the Plaintiff, State of Alabama. Accordingly, it is the judgement of this Court that the Alabama Interior Design Consumer Protection Act is overly broad, unreasonable, and unduly vague, and therefore violates due process as guaranteed by the Constitution of the State of Alabama.

Costs taxed to the State of Alabama.

DONE AND ORDERED, this 23^rd day of August 2004.

Circuit Judge