Fraternal Order of Police, Metropolitan Dade County, Lodge No. 6 v. Department of State, 57970
| Decision Date | 06 November 1980 |
| Docket Number | No. 57970,57970 |
| Parties | FRATERNAL ORDER OF POLICE, METROPOLITAN DADE COUNTY, LODGE NO. 6; Professional Police Officers Association, Inc.; Carl Gallo; and CRG Productions, Inc., a Florida Corporation, Appellants, v. DEPARTMENT OF STATE, State of Florida, and The Honorable Jessie McCrary, asSecretary of State, Appellees. |
| Court | Florida Supreme Court |
Edward S. Jaffry of Horne, Rhodes, Jaffry, Horne & Carrouth, Tallahassee, for appellants.
Jim Smith, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellees.
Appellants, law enforcement associations and professional fund-raisers, bring this appeal attacking the constitutionality of the "Law Enforcement Funds Act," codified as part II, chapter 496, Florida Statutes (1979), which requires any person or group soliciting contributions on behalf of law enforcement organizations to register with the Florida Department of State and comply with the regulatory mandates of the act. The trial court upheld the act's constitutionality except for subsections (8) and (9) of section 496.31, which the court found violative of plaintiffs' equal protection and due process rights. Direct appeal has been taken to this Court pursuant to article V, section 3(b)(1) of the Florida Constitution. We affirm.
In 1978 the Florida Legislature enacted a comprehensive act 1 regulating "organizations" which solicit contributions for or on behalf of any association of law enforcement personnel. The definitional section of the act, section 496.21, provides in pertinent part:
(1) "Organization" means a group or person which is or holds itself out to be soliciting contributions from the public by the use of any name of any law enforcement person, body, agency, or association after October 1, 1978....
(3) "Law enforcement" means the words "police," "policemen," "policeman," "sheriff," "deputy sheriff," or any combination of words used to indicate that a person, body, agency, or association is affiliated in any way with a person, body, agency, or association of law enforcement personnel.
(5) "Professional solicitor" means any person who, for a financial or other consideration, solicits contributions for, or on behalf of, an organization, whether such solicitation is performed personally or through his agents, servants, or employees or through agents, servants, or employees specially employed by or for an organization, who are engaged in the solicitation of contributions under the direction of such person; or a person who plans, conducts, manages, carries on, or advises an organization in connection with the solicitation of contributions; however, no agent, servant, or employee of a professional solicitor shall be deemed to be a professional solicitor....
The solicitation of law enforcement funds act imposes a number of requirements upon professional solicitors. Every organization which intends to solicit contributions must first register with the Department of State and obtain a certificate of registration. § 496.24, Fla.Stat. (1979). In obtaining this certificate the soliciting organization must file a registration statement disclosing certain information prescribed in section 496.23 and in addition must post a bond for the duration of registration pursuant to section 496.24. Soliciting organizations are prohibited from engaging in practices which in general might mislead the public. The prohibited practices are enumerated in section 496.31 and bar solicitors from representing to the public for example, that registration with the Florida Department of State constitutes official endorsement, that the solicited proceeds will be used for charitable purposes if such is not the case, or that contributions are being solicited on behalf of a law enforcement organization when that organization has not authorized the solicitation. In addition, a solicitor is not permitted to use the word "charity" or "charitable" as part of its name nor to solicit funds without identifying himself as a professional solicitor. Section 496.31 also contains the provisions which were found by the trial court to be unconstitutional. These provisions, subsections (8) and (9) of section 496.31, provide:
(8) A professional solicitor's total fee shall not be in excess of 25 percent of the gross contributions which he solicits. All fundraising costs shall be included in such gross contributions.
(9) Any organization registered and certified pursuant to this part shall not expend in excess of 25 percent of its gross contributions for fundraising costs.
Finally, the solicitation act provides criminal penalties for the violation of its provisions and for the filing of an application containing false information or for the use of solicitation funds for purposes other than those stated in the registration certificate. § 496.33, Fla.Stat. (1979).
Appellants instituted their general attack upon the constitutionality of the solicitation of law enforcement funds act by a suit for declaratory and injunctive relief. Their complaint alleges that the act violates the equal protection clauses of the Florida 2 and United States Constitutions 3 on the basis it arbitrarily subjects appellants to registration and licensing requirements that are not imposed on persons or organizations engaged in the same business activity (the solicitation of funds from the public) for other non-charitable organizations composed of, for example, firefighting personnel and postal workers; that the act constitutes an unlawful prior restraint on their constitutional guarantee to freedom of speech 4 and that the solicitation act unlawfully and without due process interferes with their constitutionally protected right to pursue a lawful business. 5
At trial appellants offered testimony from Nelson Perry, president of the Fraternal Order of Police, Metropolitan Dade County Lodge No. 6, and former president of the Dade County Police Benevolent Association. 6 He testified that the funds raised for the Fraternal Order of Police were used to publish a magazine entitled "Dade County PBA Bolo," to support organizations such as Little League baseball and the Kiwanis League, to assist police officers and their families in times of financial distress because of illness or injury, to provide for police awards and generally to support law enforcement activities. 7 Perry stated that to raise funds for his organization he found it necessary to employ professional solicitors. 8 He said that it was impossible to employ a solicitor who would perform the services required in soliciting funds for less than 25% of the gross contributions as required under subsection 496.31(8), Florida Statutes. Typically, he said, 40% of the gross contributions go to the solicitor for his fee and fundraising costs, with 30% of the remaining gross contributions going to support the magazine and 30% for the other mentioned activities of the organization. Carl Gallo, a professional solicitor and one of the plaintiffs in this suit, testified that in his experience raising funds for police organizations or comparable firefighters or postal worker organizations, he has never been able to keep fundraising costs under 25% of the gross contributions collected as is required by subsection 496.31(9), Florida Statutes (1979). He stated that on the average the fundraising costs, including overhead, operating and possible entertainment expenses total about 60% of the gross contributions. Out of the remaining 40% net profit he would receive, depending on the agreement, up to one-half or 20% of the gross contributions with the remaining 20% of the gross going to the organization for which funds were solicited. The vice-president of CRG Enterprises, Inc., a fundraising organization and another plaintiff in this suit, corroborated Gallo's testimony with regard to the activities and typical fee arrangement of the professional solicitor. He stated that it would be impossible for his organization to continue to solicit funds for police organizations under the new statutory 25% limit on fundraising costs. The impossibility of meeting the 25% limit was also attested to by another professional solicitor whose fundraising activities included soliciting contributions for charitable organizations. He said that although he was registered under the charitable solicitations act, part I of chapter 496, Florida Statutes, and was thus subject to a part II limitation on his fee of 25% of the gross contributions solicited, 9 he could meet the 25% limit only with regard to special events such as dances, but could not otherwise conduct a general fundraising operation.
The state countered with testimony from Detective Arthur Trollinger who had investigated alleged misrepresentation and pressure tactics used by some solicitors in obtaining contributions for various organizations including church groups and labor unions as well as police associations. He testified that fraudulent claims were often made concerning the use of the funds and their tax deductability. Based on his investigations, he said that a frequent "sales pitch" included the suggestion that a person might be treated advantageously when stopped by a police officer if his car had a decal or sticker on it showing that he had contributed to a police organization. Glen Birchfield, a former professional solicitor, also testified for the state and described how in a typical pitch he would tell the individual solicited that the funds were being collected for the family of an officer who was killed in the line of duty. He said he was more successful in soliciting money for law enforcement organizations than for firefighter or church organizations because of the greater sympathy people feel toward police officers and because of the sticker pitch suggesting favorable treatment from the police.
The state also presented testimony from a number of individuals who had been...
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