Florida Gov. Ron DeSantis and Republican legislative leaders have made it a priority to whittle back occupational license requirements imposed on nearly 30 percent of Florida’s workforce – the highest percentage of state-regulated workers in the South and fourth-highest in the nation.
Legislative remedies fell short during the 2019 session and, if a federal court ruling issued this week stands, finding a judicial solution could prove equally frustrating.
U.S. District Court Judge Casey Rogers rejected a First Amendment challenge to Florida statutes that require a license specifically to charge for individualized counseling.
The lawsuit was filed by The Institute for Justice [IJ] on behalf of Heather Kokesch Del Castillo, who was forced to shut down her Fort Walton Beach “health coach” business and fined for practicing without a dietary license.
Del Castillo argued Florida’s law violated her First Amendment right to free speech by restricting who can give dietary guidance that customers want to buy, noting dietary information is commonly available online, in books and on TV.
But Rogers, in his U.S. Northern District of Florida chambers in Pensacola, said the state’s law gives it the constitutional authority to regulate who can give dietary advice.
The licensing requirement does not violate the First Amendment because “its impact on speech is merely incidental to the state’s lawful regulation of the occupation of dietetics,” he said.
Rogers also held that the court was bound by precedent set by an 11th U.S. Circuit Court of Appeals ruling that held speech by “professionals” was entitled to reduced First Amendment protection.
IJ attorneys argued unsuccessfully that the cited precedent was voided last year when the U.S. Supreme Court held “speech is not unprotected merely because it is uttered by professionals.”
The IJ, a national firm that describes itself as “the nation’s leading advocate for First Amendment rights and economic liberty,” has successfully challenged occupational licensing laws in North Carolina, Kentucky, Connecticut, Florida, New Mexico, Texas, Louisiana, Pennsylvania, Georgia and Washington, D.C.
IJ attorneys Paul Sherman and Ari Bargil said the case was similar to the free speech violations imposed by the cities of New Orleans, Philadelphia, Savannah and Washington, D.C, on tour guides.
But Rogers countered that licensing for dietary advice is different because clients pay for individualized advice while tour guides provide everyone the same information.
The IJ, in a Wednesday statement, said it will appeal Rogers’ ruling.
“The court held that talking with a person about their diet isn’t speech, it’s the ‘conduct’ of practicing dietetics,” Bargil said. “The Supreme Court has squarely rejected that sort of labeling game. Giving advice on what an adult should buy at the grocery store is speech, and the First Amendment protects it.”
Sherman, who is IJ’s senior attorney, added, “For decades, occupational licensing boards have acted as if the First Amendment doesn’t apply to them. Last year, the Supreme Court clearly and emphatically rejected that argument. Yesterday’s ruling is wrong on the law, and we will be appealing.”
Del Castillo was a certified “health coach” and founder of Constitution Nutrition in Monterey, Calif. She provided personalized diet and nutrition advice to paying customers often via Skype or Google Hangouts.
In 2015, her husband – an Air Force officer – was transferred to Eglin Air Base near Fort Walton Beach.
Del Castillo, through Constitution Nutrition, continued to create individualized diet and exercise plans for clients, including a six-month program for $1,170.
In March 2017, she received an email from a man named “Pat Smith” who said he’d seen her website and asked what information she would need from him to personalize a weight loss plan and what her program would include.
Del Castillo heard nothing back until May 2, 2017, when a Florida Department of Health (DOH) investigator served her with a cease-and-desist letter ordering her to stop giving dietary advice and fining her $754.
“Pat Smith,” it turned out, was a DOH investigator. His email was part of a sting operation prompted by a complaint filed by a licensed dietitian.
Under Florida law, Del Castillo was informed that offering individualized dietary advice to paying customers requires a Florida dietetics/nutrition license.
To earn a dietitian license, a person must earn a bachelor’s degree with a major in nutrition or a related field, complete 900 hours of supervised practice, pass a dietitian exam and pay fees that range from $165-$290.
Under state law, the “unlicensed practice of dietetics or nutrition” is a first-degree misdemeanor punishable by up to a year in jail and $1,000 in fines per offense. The DOH can also seek civil fines of up to $5,000 per day for each day that a violation occurs.
Del Castillo was forced to close her business and pay the fine. She filed the lawsuit with the IJ in October 2017.