Condon v. Office Depot, Inc., 2D02-1688.

CourtCourt of Appeal of Florida (US)
Citation855 So.2d 644
Docket NumberNo. 2D02-1688.,2D02-1688.
PartiesTimothy CONDON, Appellant, v. OFFICE DEPOT, INC., a Delaware corporation d/b/a Office Depot, Appellee.
Decision Date22 August 2003

Michael C. Addison of Addison & Delano, P.A., Tampa, for Appellant.

Richard M. Zabak and Rebecca O'Dell Townsend of Gray, Harris & Robinson, P.A., Tampa, for Appellee.

FULMER, Judge.

In this appeal we consider whether Florida recognizes a private cause of action arising under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 (1999), in the absence of specific state legislation authorizing such action. We hold that no enabling legislation is required before this claim can be heard in state courts. Therefore, we reverse.

In a complaint filed in circuit court, Timothy Condon alleged that Office Depot violated the TCPA by sending him thirteen unsolicited facsimile advertisements.1 The TCPA prohibits, among other things, the sending of certain unsolicited facsimile advertisements. 47 U.S.C. § 227(b)(1)(C). The TCPA provides a private cause of action only in state court "if otherwise permitted by the laws or rules of court of a State." 47 U.S.C. § 227(b)(3).2 Interpretation of the phrase "if otherwise permitted by the laws or rules of court of a State" was the crux of the dispute in the underlying proceeding.

Office Depot filed a motion to dismiss Condon's complaint, asserting that the "if otherwise permitted" language required the Florida Legislature to enact substantive legislation before this claim was cognizable in state court and that Florida had taken no such action to opt in. The trial court agreed and dismissed the suit with prejudice.

On appeal, Office Depot reiterates the arguments made in the trial court. Condon argues, as he did below, that the "if otherwise permitted" language does not require the state to opt in by taking affirmative action to permit suits under the TCPA. It simply means that when a TCPA claim is brought in a state court, local laws control procedure, jurisdiction, venue, administration, and the like.

Interpretation of this language has been addressed by other state3 and federal courts,4 although it appears that we are the first appellate court in Florida to do so. We join the majority view5 and conclude that the State is not required to adopt enabling legislation before a state court of competent jurisdiction can entertain this federal law claim. Rather, we interpret the language "if otherwise permitted" to acknowledge the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules or to create courts to accommodate TCPA claims. "The requirement that a state court of competent jurisdiction treat federal law as the law of the land does not necessarily include within it a requirement that the state create a court competent to hear the case in which the federal claim is presented." Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 372, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). The "federal law takes the state courts as it finds them." Howlett, 496 U.S. at 372,110 S.Ct. 2430 (citing Henry Hart, The Relations Between State and Federal Law, 54 Colum. L.Rev. 489, 504 (1954)). "The States thus have great latitude to establish the structure and jurisdiction of their own courts." Howlett, 496 U.S. at 372,110 S.Ct. 2430. It is these principles of federal law that we conclude are the subject of the "if otherwise permitted" language.

We align ourselves with the majority view because we are of the opinion that the minority view requiring opt-in legislation runs afoul of the Supremacy Clause of the United States Constitution. There is a presumption of state court jurisdiction over claims arising under federal law. Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990). And, while exclusive jurisdiction in state court for a federal claim is unusual, it does not negate controlling principles of constitutional law.

Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum—although both might well be true—but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature. The Supremacy Clause makes those laws "the supreme Law of the Land," and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure.

Howlett, 496 U.S. at 367, 110 S.Ct. 2430; see also Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947)

(holding that Rhode Island state courts could not refuse to enforce a federal statute when the courts had jurisdiction that was adequate and appropriate to adjudicate the type of claim covered by the federal statute).

The Supreme Court has recognized a presumption of state-court jurisdiction over federal claims, which "can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981). The ambiguous language "if otherwise permitted" does not explicitly direct the enactment of enabling state legislation. Nor does the legislative history support such a requirement. According to Senator Hollings, the bill sponsor:

The substitute bill contains a private right-of-action provision that ... would allow consumers to bring an action in State court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the States which court in each State shall be the proper venue for such an action as this is a matter for State legislators to determine. Nevertheless, it is my hope that States will make it as easy as possible for consumers to bring such actions, preferably in small claims court.
Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys' costs to consumers of bringing an action were greater than the potential damages. I thus expect that the States will act reasonably in permitting their citizens to go to court to enforce this bill.

137 Cong. Rec. S16,205-06 (1991) (statement of Sen. Hollings) (emphasis added).6 Senator Hollings thus expected state legislation to address issues like venue. Finally, we see no incompatibility between state-court jurisdiction and federal interests. To the contrary, "although Congress created the private TCPA action, it was from the beginning a cause of action in the states' interests." Int'l Sci. & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F.3d 1146, 1154 (4th Cir.1997) (reciting Congressional findings that over half the states had similar statutes but they were being evaded through interstate operations and that the states had expressed a desire for federal legislation to supplement their restrictions). Given the presumption of state-court jurisdiction and the absence of any factors that would rebut its existence, we would require an explicit mandate from Congress that the private cause of action it created was conditioned on prior state approval.

"Federal law confers rights binding on state courts, the jurisdiction of which is governed in the first instance by state laws." Gulf Offshore Co., 453 U.S. at 478, 101 S.Ct. 2870 (footnote omitted). The Florida Constitution is the source of jurisdiction for Florida's courts. Under article V, section 5(b), Florida circuit courts are courts of general jurisdiction.7 As such, they are competent to hear the type of claim filed by Condon. And they do hear similar claims under section 365.1657, Florida Statutes (2001), which makes it unlawful to send unsolicited fax advertisements and provides for enforcement by the Attorney General. Because section 365.1657 was passed prior to the 1991 enactment of the TCPA, see ch. 89-95, Laws of Fla., we do not consider it as a legislative refusal to permit a private cause of action under this later-enacted federal law.

For the reasons expressed, we conclude that the trial court erred by dismissing Condon's complaint. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT, J., Concurs.

ALTENBERND, C.J., Dissents with opinion.

ALTENBERND, Chief Judge, Dissenting.

I recognize that the court's ruling in this case is supported by the majority of jurisdictions that have considered this issue. It may be that I am simply troubled by the questionable precedent created by a federal statute that effectively enacts a uniform state law for all fifty states by enacting a single federal law that can only be enforced in state courts. Nevertheless, I am persuaded by Maryland's opinion in R.A. Ponte Architects, Ltd. v. Investors' Alert, Inc., 149 Md.App. 219, 815 A.2d 816 (2003), and accordingly dissent. I do not believe that the federal statute should be interpreted as requiring a state court to handle these federal claims merely because a state's constitution provides for a trial court of general jurisdiction.

In 1989, the Florida Legislature enacted a statute that prohibited certain unsolicited advertising by facsimile machine. See ch. 89-95, Laws of Fla. (codified at § 365.1657, Fla. Stat. (2002)). The statute provided for a civil penalty not to exceed $500 per violation. Significantly, it did not expressly provide for a private right of action. In this state, there is no question that this consumer protection statute did not implicitly create a private right of action. See Villazon v. Prudential Health Care Plan, Inc., 843 So.2d...

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