Harris v. Beneficial Finance Co. of Jacksonville

• Decision Date: 30 July 1976
• Docket Number: No. 48198,48198
• Citation: 338 So.2d 196
• Parties: John E. HARRIS, Appellant, v. BENEFICIAL FINANCE COMPANY OF JACKSONVILLE, a Florida Corporation, Appellee.
• Court: Florida Supreme Court

Page 196

338 So.2d 196

John E. HARRIS, Appellant, v. BENEFICIAL FINANCE COMPANY OF JACKSONVILLE, a Florida Corporation, Appellee.

No. 48198.

Supreme Court of Florida.

July 30, 1976.

Rehearing Denied Nov. 9, 1976.

Alan A. Alop, Jacksonville, for appellant.

W. Douglas Childs and Bruce S. Bullock of Bullock, Sharp & Childs, Jacksonville, for appellee.

SUNDBERG, Justice.

In this appeal from an interlocutory order entered by the Circuit Court in and for Duval County, our jurisdiction derives from the fact that the trial judge passed upon the constitutionality of portions of Chapter 559, Florida Statutes. While this order does not constitute a final judgment, it can be reviewed in this Court through certiorari. Article V, Section 3(b)(3), Florida Constitution.

As appears from Appellant's pleadings in the trial court, on October 1, 1973, Beneficial Finance Company of Jacksonville, a Florida corporation, extended a consumer loan to John E. Harris. Harris made payments on this loan through June, 1974, when he found he could no longer make such payments. On or about September 3 and September 27, 1974, agents of the finance company, without his permission, contacted Harris' employer, Western Auto Company, in Jacksonville, Florida, regarding the overdue debt. On both of these occasions, Beneficial's agents communicated with Harris' employer in an effort to collect the outstanding obligation.

In January, 1975, Harris filed an action in the Circuit Court for Duval County, alleging that the defendant had violated the provisions of the Consumer Collection Practices Act (CCPA), Section 559.72(4), Florida Statutes:

'In collecting consumer claims, whether or not licensed by the division, no person shall:

'(4) Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives his permission in writing to contact his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that his employer will be contacted if a final judgment is obtained.'

The original complaint was dismissed upon motion of the defendant, Beneficial. Thereupon, plaintiff filed his amended complaint. Ultimately Beneficial filed an amended motion to dismiss the amendedcomplaint, challenging the validity of Section 559.72(4), Florida Statutes, as an unconstitutional infringement of the right of free speech guaranteed by the First Amendment. Also in its amended motion to dismiss, Beneficial contended that Section 559.77(1), Florida Statutes, the remedy provision of the CCPA which allows successful plaintiffs to recover either actual damages or $500, whichever is greater, constituted an unconstitutional deprivation of defendant's property without due process of law.

In an opinion and order dated September 24, 1975, the trial court rejected Beneficial's free speech attack on Section 559.72(4), Florida Statutes, but declared the minimum damage award provision of Section 559.77(1) to be unconstitutional on due process grounds. Plaintiff Harris appeals the latter decision, while defendant Beneficial has filed a cross-appeal on its unsuccessful free speech challenge to the statute.

After carefully considering Beneficial's constitutional challenge to Section 559.72(4), Florida Statutes, we have concluded that it must be rejected. The trial court properly applied the 'commercial speech' doctrine to the facts of the instant case. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (commercial handbill); Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (sexually-segregated want ads). Communication directed solely to the collection of a debt is purely commercial. While calling communication 'commercial' does not serve to strip it of all constitutional guarantees, communications such as the one at issue here may more readily be curbed in the public interest than can speech which conveys political, social or religious thought. See generally Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975).

Bigelow struck down a Virginia law under which a newspaper editor had been convicted for advertising the availability of legal medical abortions in New York. The Court rejected the Commonwealth's argument that the statute was constitutional because it could be applied only to commercial speech. The reason for this decision is instructive:

'The legitimacy of appellant's First Amendment claim in the present case is demonstrated by the important differences between the advertisement presently at issue and those involved in Chrestensen and Pittsburgh Press. . . . Portions of its message, most prominently the lines, 'Abortions are now legal in New York. There are no residency requirements,' involve the exercise of the freedom of communicating information and disseminating opinion.' Bigelow at 2232.

Adding that 'the advertisement conveyed information of potential interest and value to a diverse audience' and was newsworthy, the Court found that the speech involved 'pertained to constitutional interests,' and was protected under the First Amendment.

The United States Supreme Court recently revisited the 'commercial speech' doctrine in Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (Opinion filed May 24, 1976). Consumers of prescription drugs sued the State Board of Pharmacy challenging the constitutionality of a Virginia statute declaring it to be unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. Reasoning that 'speech which does 'no more than propose a commercial transaction" does not lack all First Amendment protection, the Court held the statute to be unconstitutional. In so doing, Mr. Justice Blackmun, writing for the majority, emphasized the value of the type of speech at issue--the price of prescription drugs--to the Recipient of such information:

'As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate. Appellees' case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities.

'Generalizing, society also may have a strong interest in the free flow of commercial information. Even an individual advertisement, though entirely 'commercial,' may be of general public interest. The facts of decided cases furnish illustrations: advertisements stating that referral services for legal abortions are available, Bigelow v. Virginia, supra; that a manufacturer of artificial furs promotes his product as an alternative to the extinction by his competitors of fur-bearing mammals, see Fur Information & Fashion Council, Inc. v. E. F. Timme & Son, 364 F.Supp. 16 (S.D.N.Y.1973); and that a domestic producer advertises his product as an alternative to imports that tend to deprive American residents of their jobs, cf. Chicago Joint Board v. Chicago Tribune Co., 435 F.2d 470 (C.A. 7 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1662, 29 L.Ed.2d 138 (1971). Obviously, not all commercial messages contain the same or even a very great public interest element. There are few to which such an element, however, could not be added. Our pharmacist, for example, could cast himself as a commentator on store-to-store disparities in drug prices, giving his own and those of a competitor as proof. We see little point in requiring him to do so, and little difference if he does not.' Id. at 764, 96 S.Ct. at 1826.

(Emphasis supplied) (Footnote omitted)

The Court concluded that while 'commercial speech, like other varieties, is protected, we of course do not hold that it can never be regulated in any way. Some forms of commercial speech regulation are surely permissible.' Justice Blackmun specifically mentioned the continuing validity of time, place and manner restrictions. Id. at...