11th Circuit Sides with Fla. Department of Health in Licensing Challenge

Last Friday, the 11th Circuit Court of Appeals affirmed the decision of the Northern District of Florida, granting summary judgment to the Florida Department of Health in an action challenging, on First Amendment grounds, the constitutionality of the Florida licensing requirements set forth in the state’s Dietetics and Nutrition Practices Act (Florida Dietetics Practices Act).

The opinion recounted that Heather Del Castillo (Plaintiff) operated a “health-coaching business” and “described herself as a ‘holistic health coach,’ and not a dietician,” who gave her clients “tailored advice on dietary choices, exercise habits and general lifestyle strategies. Del Castillo had a certificate in holistic health coaching that she received from an online school. But she did not have a Florida dietician or nutritionist license” and “she was not qualified to receive a license because she lacked the necessary education and professional experience.”

The Florida Department of Health (FDOH) investigated Plaintiff following a complaint filed with it by a licensed dietician alleging that Plaintiff was violating the Florida Dietetics Practices Act “by providing nutritionist services without a license.” In May 2017, the FDOH sent Plaintiff “a citation and cease and desist order.” Plaintiff paid $500 in fines and $254.09 in “investigatory fees” for “ ‘ providing individualized dietary advice in exchange for compensation in Florida.’“

Subsequently, Plaintiff filed suit against the “Secretary, Florida Department of Heath” (Defendant) alleging that the Florida Dietetics Practices Act “as applied to her, violated her First Amendment free speech rights.” She sought injunctive relief, attorneys fees and costs and “a declaratory judgment that the [Dietetics and Nutrition Practices] Act is ‘unconstitutional to the extent that [it] prohibit[s] [her] and others similarly situated from offering individualized advice about diet and nutrition.” Both parties moved for summary judgment after discovery, and the District Court ruled in favor of the Defendant. The Plaintiff appealed the ruling to the 11th Circuit.

As characterized by the 11th Circuit, the District Court premised its decision on a prior 11th Circuit opinion, Locke v. Shore, which upheld a free speech challenge to a licensing requirements for certain interior designers. The Defendant argued unsuccessfully in the District Court that Locke had been “abrogated” by the 2018 U.S. Supreme Court decision in National Institute of Family & Life Advocates v. Becerra (NIFLA decision) and that her “dietary advice to her clients was pure speech rather than conduct,” making the Florida Dietetics Practices Act provisions subject to a “strict scrutiny” analysis  they could not survive.    The 11th Circuit largely deals with same issues.

The 11th Circuit notes that its 2011 Locke decision is based on two independently adequate grounds: “ The first reason we gave was that a ‘statute that governs the practice of an occupation is not unconstitutional as an abridgment of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation… The second reason we gave… was that if ‘the government enact[ed] generally applicable licensing provisions limiting the class of persons who may practice the profession, it may not be said to have enacted a limitation on free speech … subject to First Amendment scrutiny.” 

The opinion continues, “There was ‘a difference,’ we reasoned, for First Amendment purposes between regulating professionals speech to the public at large versus their direct, personalized speech with clients.” The second reason, known as the “professional speech doctrine,” is based upon Justice White’s concurring opinion in Lowe v. SEC. It is this doctrine that the Supreme Court refused to recognize in the 2018 NIFLA decision, but the 11th Circuit ruled that the first prong of the Locke decision pertaining to the practice of a profession is still good law and governed this case. 

The court upheld the challenged provisions of the Florida Dietetic Practices Act and affirmed the District Court’s decision granting summary judgment to the Defendant. The plaintiff was represented by the Institute for Justice.