State v. Lupo

• Decision Date: 12 October 2007
• Docket Number: 1050224.
• Citation: 984 So.2d 395
• Court: Alabama Supreme Court
• Parties: STATE of Alabama v. Diane Burnett LUPO.

984 So.2d 395

STATE of Alabama v. Diane Burnett LUPO.

1050224.

Supreme Court of Alabama.

October 12, 2007.

Troy King, atty. gen., and Kevin Newsom, deputy atty. gen., and Billington M. Garrett, asst. atty. gen., Montgomery, for appellant.

Mark W. Lee, Dorothy A. Powell, and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.

Matthew C. McDonald of Miller, Hamilton, Snider & Odom, L.L.C., Mobile, for amicus curiae Alabama Retail Association, in support of the appellee.

William H. Brooks and Ivan B. Cooper of Lightfoot, Franklin & White, LLC, Birmingham; and C. Dylan Sanders and Lisa S. Core of DLA Piper Rudnick Gray Cary US, LLP, Boston, Massachusetts, for amicus curiae National Council of Architectural Registration Boards, in support of the appellee.

Robert M. Hill, Jr., Florence, for amicus curiae University of North Alabama, in support of the appellee.

Dominick Matranga of Hicks Matranga & Osborne, Mobile; and Clark Neily and William H. Mellor, Institute of Justice, Arlington, Virginia, for amicus curiae Alabama Decorators, Artists, and Designers Right to Work Coalition (ADAD), in support of the appellee.

Robin Brigham Thetford and Joseph D. Thetford of Thetford & Thetford, Mobile, for amicus curiae National Kitchen & Bath Association, in support of the appellee.

SMITH, Justice.

The State of Alabama, by and through the Alabama State Board of Registration for Interior Design ("the Board"), appeals from a judgment of the Jefferson Circuit Court declaring the Alabama Interior Design Consumer Protection Act, Act No. 2001-660, Ala. Acts 2001 ("the Act"), codified at § 34-15B-1 et seq., Ala.Code 1975, unconstitutional. We affirm.

Facts and Procedural History

On August 28, 2002, the Board sued Diane Burnett Lupo in the Jefferson Circuit Court. The complaint alleged that the Board had found Lupo in violation of the Act for practicing "interior design" without registering with the Board. The complaint further alleged that the Board had fined Lupo $1,500 and sought a judgment requiring Lupo to pay the fine plus $235 in costs and an injunction prohibiting Lupo from practicing interior design unless she complies with the requirements of the Act.

Lupo's answer denied the material allegations of the complaint and asserted that the Act is unconstitutional because, she argued, it is overly broad and deprives her of her liberty interest in violation of due process.

Following a nonjury trial and the submission of briefs, the trial court issued an order holding that the Act was "overly broad, unreasonable, and vague" and that it therefore violated the due-process provisions of the Alabama Constitution.¹ The Board filed a motion to alter, amend, or vacate the judgment and also moved for a stay of the judgment. The parties consented to extend the time period under Rule 59.1, Ala. R. Civ. P., for the trial court to rule on the Board's postjudgment motion. The trial court eventually denied the postjudgment motion within the time period stipulated by the parties, and the Board filed a timely notice of appeal.

Standard of Review

"`Our review of constitutional challenges to legislative enactments is de novo.' Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999) (`In reviewing the constitutionality of a legislative act, this Court will sustain the act "`unless it is clear beyond reasonable doubt that it is violative of the fundamental law.'"' White v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala.1989) (quoting Alabama State Fed'n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944))). We approach the question of the constitutionality of a legislative act `"`with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.'"' Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000) (quoting Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 159 (Ala.1991), quoting in turn McAdory, 246 Ala. at 9, 18 So.2d at 815).

"Moreover, in order to overcome the presumption of constitutionality, ... the party asserting the unconstitutionality of the Act ... bears the burden `to show that [the Act] is not constitutional.' Board of Trustees of Employees' Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973). See also Thorn v. Jefferson County, 375 So.2d 780, 787 (Ala.1979) (`It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitutionality....')."

State ex rel. King v. Morton, 955 So.2d 1012, 1017 (Ala.2006).

Discussion

In 1982, the legislature enacted Act No. 82-497, Ala. Acts 1982, which was codified at §§ 34-15A-1 to -7, Ala.Code 1975. Act No. 82-497 was a "title" act — it regulated the use of the title "interior designer" but did not regulate the practice of "interior design." Thus, the 1982 Act restricted the use of the title "interior designer" to those individuals who had complied with the registration provisions of the 1982 Act,² but it did not limit who could engage in the practice of interior design.³

The evidence before the trial court showed that Lupo had been an "interior decorator" for more than 22 years. The services she provided to clients consisted of advice in selecting paint colors, accessories, fabrics, and furniture for homes and businesses. Many of the services Lupo provided as an interior decorator also could have been classified as "interior design" under the definition of that term in the 1982 Act.⁴ Even so, because the 1982 Act was a "title" act, Lupo was able to offer those services so long as she did not use the title "interior designer."

However, when the legislature enacted the Act, it repealed the 1982 Act.⁵ Although similar in some ways to the 1982 Act, the Act differs from its predecessor in one significant manner: it restricts the practice of interior design to those individuals who have been issued a certificate of registration by the Board. In particular, § 8(c) of the Act states that an individual who practices interior design without having a certificate of registration from the Board is guilty of a Class A misdemeanor.⁶ See also § 3(2) to (5), Act No. 2001-660, Ala. Acts 2001 (defining the terms "certificate of registration," "interior designer," "practice of interior design," and "practicing interior design").

In January 2002, Lupo appeared before the Board to respond to charges that she was not complying with the Act. The Board alleged that Lupo was using the title "interior designer" and was practicing interior design without a certificate of registration. After a hearing, the Board determined the Lupo had violated the Act, assessed a fine of $1,500 and costs of $235, and ordered her to cease from practicing interior design without having a certificate of registration from the Board. To enforce its order, the Board then filed the present action in the Jefferson Circuit Court. In her defense to the action, Lupo asserted — and the trial court held — that the Act is unconstitutional.

As authority for her assertion that the Act is unconstitutionally overbroad, vague, and unreasonable, Lupo cites Ross Neely Express, Inc. v. Alabama Department of Environmental Management, 437 So.2d 82 (Ala.1983), a decision the trial court cited in its order finding the Act unconstitutional. The defendant in Ross Neely Express operated a truck terminal in Montgomery County. To reach the terminal, the defendant's trucks had to travel along an unpaved access road. The Alabama Air Pollution Control Commission claimed that by creating dust as they traveled along the access road Ross Neely's trucks were violating certain rules and regulations of the Alabama Department of Environmental Management ("ADEM"). 437 So.2d at 83-84.

This Court held that the ADEM rules and regulations the defendant was charged with violating were unconstitutional. 437 So.2d at 85-86. The ADEM provisions at issue stated:

"`4.2.1 No person shall cause, suffer, allow, or permit ... a road to be used ... without taking reasonable precautions to prevent particulate matter from becoming airborne. Such reasonable precautions shall include, but not be limited to, the following:

"`. . . .

"`(b) Application of asphalt, oil, water, or suitable chemicals on dirt roads, materials stock piles, and other surfaces which create airborne dust problems;

"`. . . .

"`4.2.2 Visible Emissions Restrictions Beyond Lot Line. No person shall cause or permit the discharge of visible fugitive dust emissions beyond the lot line of the property on which the emissions originate."'

437 So.2d at 83.

This Court stated:

"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. Pike v. Southern Bell Telephone and Telegraph Co., 263 Ala. 59, 81 So.2d 254 (1955). The courts have found that this right is violated when a statute or regulation is unduly vague, unreasonable, or overbroad. In Kahalley v. State, 254 Ala. 482, 48 So.2d 794 (1950), this court found a criminal misdemeanor statute to be unconstitutionally vague. There the court stated:

"`[L]egislation 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.'

"In reviewing a regulation of a county Board of Health, this court held that the central issue was reasonableness. Baldwin County Board of Health v. Baldwin County Electric Membership Corporation, 355 So.2d 708 (Ala. 1978). In City of...