Barr v. State

• Decision Date: 21 April 1999
• Docket Number: No. 98-2088., No. 98-2087
• Citation: 731 So.2d 126
• Parties: Daniel BARR and Renny Mitchell Edelson, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

731 So.2d 126

Daniel BARR and Renny Mitchell Edelson, Appellants, v. STATE of Florida, Appellee.

Nos. 98-2087, 98-2088.

District Court of Appeal of Florida, Fourth District.

April 21, 1999.

H. Dohn Williams, Jr., of H. Dohn Williams, Jr., P.A., Fort Lauderdale, for appellants.

Robert A. Butterworth, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Renny Edelson and Daniel Barr, both chiropractors, timely appeal from the denial of their motions to dismiss the state's information charging them with unlawful insurance solicitation in violation of section 817.234(8), Florida Statutes (1997). They pled no contest to the lesser offense of conspiracy to commit unlawful insurance solicitation, specifically reserving their right to appeal the alleged unconstitutionality of this statute. As set forth below, we hold the statute as applied to Edelson and Barr is constitutional and, thus, affirm.

This case stemmed from the business relationship between Edelson and Barr and Prebeck Consultants, Inc. ("Prebeck"), a business engaged in scheduling appointments for persons involved in motor vehicle accidents with chiropractors. After purchasing a motor vehicle accident report, Prebeck solicited a person listed on the report for the purpose of scheduling a free initial examination, and possible subsequent treatment if necessary, with Edelson and Barr. Edelson and Barr examined such person, determined treatment was necessary, and later billed that person's PIP benefits for the services they rendered.

The state then charged Edelson and Barr separately with unlawful insurance solicitation in violation of section 817.234(8). Edelson and Barr filed motions to dismiss, alleging that the statute was unconstitutionally vague and over-broad, and violative of equal protection. The court denied both motions. They then pled no contest to the lesser offense of conspiracy to commit unlawful insurance solicitation, reserving their right to appeal the above issue.

The overbreadth doctrine does not apply

Edelson and Barr first argue that section 817.234(8) is unconstitutionally overbroad because it unduly restricts their commercial speech. Section 817.234(8) provides,

It is unlawful for any person, in his or her individual capacity or in his or her capacity as a public or private employee, or for any firm, corporation, partnership, or association, to solicit any business in or about city receiving hospitals, city and county receiving hospitals, county hospitals, justice courts, or municipal courts; in any public institution; in any public place; upon any public street or highway; in or about private hospitals, sanitariums, or any private institution; or upon private property of any character whatsoever for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736. Any person who violates the provisions of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 817.234(8), Fla. Stat. (1997). However, the overbreadth doctrine does not apply to commercial speech cases, as here. Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of NY, 447 U.S. 557, 565 n. 8, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (citations omitted); see also Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 481, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989)(holding doctrine will not facially invalidate restrictions on commercial speech because such speech is "more hardy, less likely to be `chilled,' and not in need of surrogate litigators"). The statute does not violate First Amendment protections

We do agree, however, with Edelson and Barr that commercial speech is entitled to some First Amendment protection. Bates v. State Bar of Arizona, 433 U.S. 350, 363, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977). As such, the Supreme Court has developed a four-part analysis to determine whether the governmental restriction on such speech violates First Amendment protections. First, the court must determine that the expression concerns lawful activity and is not misleading. Second, it must ask whether the asserted state interest behind the restriction is substantial. Third, it must determine whether the regulation directly advances the interest so asserted, and, fourth, whether the regulation is not more extensive than necessary to serve that interest. Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. The Court later clarified that this last prong does not require the least restrictive means available for achieving the state's interest, but rather, just a reasonable fit between the means and the ends. Florida Bar v. Went for It, Inc., 515 U.S. 618, 632, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995).

Here, the first prong of the Central Hudson test is satisfied, as the solicitation made by Edelson and Barr was unlawful only because it violated section 817.234(8), and not for any other reason. In addition, the record reflects that the state satisfied the second prong by proving that substantial state interests were involved. Specifically, in response to the motions to dismiss, the state filed a 1975 Dade County Grand Jury Report, which clarified that the statute was created in part to combat both insurance fraud and a resulting increase in insurance premiums borne ultimately by the public. This report also satisfied the third prong of the test by showing that subsection(8) directly advances the state's interest in preventing insurance fraud. As the report suggests, there was a serious problem in the industry of "runners" soliciting automobile accident victims with little or no injuries to undergo unnecessary medical treatment so that they could exhaust the victims' PIP benefits before the victims sued in tort for damages. From an objective standpoint, we believe the statute's prohibition against this type of solicitation provides a direct link to the state's interest in preventing harm to such victims and the insurance industry.

Finally, we hold the state satisfied the fourth prong of the test by demonstrating that subsection (8) is narrowly drawn. The statute is not a blanket ban on all solicitation of business by a chiropractor, but rather, targets only those persons who solicit business for the sole purpose of making motor vehicle tort or PIP benefits claims. Although not the least restrictive means available to achieve the state's purpose, we hold the ban on such solicitation is reasonably tailored to the state's interest in preventing insurance fraud and raised premiums.

Edelson and Barr's reliance on Edenfield v. Fane, 507 U.S. 761, 764, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) and Innovative Database Systems v. Morales, 990 F.2d 217, 222 (5th Cir.1993), as support for their argument that the statute is not narrowly tailored, is misplaced. The statutes in those cases placed total bans on the professional solicitation at issue which were not sufficiently tailored in scope or purpose. In contrast, section 817.234(8), by limiting its purpose to the filing of motor vehicle tort or PIP benefits claims, is reasonably tailored to fit the state's interests in preventing insurance fraud and rising premiums.

The statute is not void for vagueness

Edelson and Barr next argue that section 817.234(8) is vague because it does not define "solicitation." We disagree and hold the term may be readily understood by reference to commonly accepted dictionary definitions. See Powell v. State, 508 So.2d 1307, 1310 (Fla. 1st DCA)(holding dictionary definitions may be used as sources where statute does not define term in question) (citations omitted), rev. den., 518 So.2d 1277 (Fla.1987). In this regard, Black's Law Dictionary notes that "[t]he term implies personal petition and importunity addressed to a particular individual to do some particular thing." Black's Law Dictionary 1248-49 (5th ed. 1979). Similarly, the Board of Chiropractic, which governs Edelson's and Barr's profession, has defined "solicit" as contact or communication, oral or written, directed to a specific recipient. Fla. Admin. Code Ann. R. 64B2-15.002(2) (1997). Because these examples demonstrate that individuals of common intelligence know what "to solicit" means, we hold that the statute adequately advises persons of what conduct is proscribed. Because there is no evidence that the statute will lead to arbitrary enforcement, we hold it is...