Roush v. State, 57241

• Decision Date: 08 April 1982
• Docket Number: No. 57241,57241
• Citation: 413 So.2d 15
• Parties: Thomas (Fred Phillip) ROUSH, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 15

413 So.2d 15

Thomas (Fred Phillip) ROUSH, Petitioner, v. STATE of Florida, Respondent.

No. 57241.

Supreme Court of Florida.

April 8, 1982.

Franklin R. Harrison of Davenport, Johnston, Harris, Gerde, Harrison & Nabors, Panama City, for petitioner.

Jim Smith, Atty. Gen. and David P. Gauldin, Asst. Atty. Gen., Tallahassee, and Edward A. Miller, Chief Asst. State Atty. and William L. Wright, Asst. State Atty., Fourteenth Judicial Circuit, Panama City, for respondent.

PER CURIAM.

This cause is before the Court on petition for certiorari to review two interlocutory orders of the Circuit Court of the Fourteenth Judicial Circuit, Bay County. In issuing the orders, the court passed upon the constitutionality of a state statute. Therefore, a final judgment in the cause, under the jurisdictional provisions in effect at the time the notice of certiorari was filed, would have been appealable to this Court. We have jurisdiction, article V, section 3(b)(3), Florida Constitution (1972), and uphold the constitutionality of section 812.035, Florida Statutes (1977), ^* and approve the action of the court below.

In response to numerous consumer complaints that petitioner Thomas Roush's Guaranteed Transmission Service was involved in a continuing scheme of fabricating or escalating transmission repair costs, law enforcement officers in Bay County initiated a secret investigation to determine whether Roush's business was perpetrating a fraud upon the public. During the investigation, an undercover agent, driving a vehicle with a nondefective transmission, left the car with Roush's business and requested the advertised "$9.95 Special" transmission tune-up. When the agent later called to learn whether the car had been serviced, she was told that unexpected problems in the transmission had been discovered and that the necessary repairs would require an additional payment of $39.95, plus parts. The agent agreed to the repair, but, on the following day, she was informed that the problems were more serious than originally suspected and that the estimated cost of the required service would be approximately $289.50. After giving her permission to have the necessary work performed--the cost of which finally amounted to $314.42--the agent retrieved the vehicle and turned it over to an expert transmission mechanic for inspection. The expert later testified that he could find no indication that any internal transmission repairs had in fact been made. Based on evidence gathered during the investigation, the employee who had dealt with the agent was arrested and charged with grand theft in violation of section 812.014, Florida Statutes (Supp.1978), which defines and prohibits "theft."

Subsequently, on Friday, June 22, 1979, the state attorney, pursuant to section 812.035, filed a motion for equitable relief with the circuit court seeking to enjoin the operation of Roush's transmission repair business, to suspend his local business license, and to seize the property used in the business. At 12:50 p. m. that day Roush was served with the motion along with a summons and notice of hearing to be held at 3:00 p. m. the following Monday, June 25, 1979.

At the hearing Roush appeared with counsel and moved for a continuance, arguing that he had not been allowed adequate time to prepare a response to the state attorney's petition. The court denied the motion and proceeded with the hearing. The state then presented a number of witnesses who testified about the seemingly fraudulent activities of Roush's business. Among those testifying were several former customers who believed that they had paid for unnecessary and unsatisfactory transmission repairs under conditions similar to those discovered during the undercover operation. Roush offered no evidence. At the conclusion of the hearing, the court enjoined Roush from operating his transmission business until further order and ordered the seizure of all real and personal property used in the business.

By motion for rehearing, Roush raised the issues of the constitutionality of section 812.035 and the adequacy, under due process principles, of the notice provided him in this case. The court upheld the statute and held that the notice comported with due process. Roush contends these two rulings were in error.

At the outset, it should be noted that the instant case presents this Court with no problem of statutory construction. To buttress this conclusion, several observations are in order relative to the scope of the Florida Anti-Fencing Act, sections 812.005-812.037, Florida Statutes (1977 & Supp.1978), and its applicability to Roush's conduct, as well as to the actions of the state and circuit court.

Doubtless, some would argue that the statute's short title, "The Florida Anti-Fencing Act," implies some intent on the part of the legislature to limit the scope of the act to fencing activities, thus removing Roush's alleged consumer fraud from the act's coverage. As this Court stated in King Kole, Inc. v. Bryant, 178 So.2d 2, 4 (Fla.1965), however, a "title need not be an index to the contents. It is not necessary that it delineate in detail the substance of the statute." Further, in the presence of language as unequivocal as that embodied in the act, "[w]here the words selected by the Legislature are clear and unambiguous, ... judicial interpretation is not appropriate to displace the expressed intent." Heredia v. Allstate Insurance Co., 358 So.2d 1353, 1355 (Fla.1978) (emphasis supplied).

An examination of the Florida Anti-Fencing Act clearly reveals that, despite its narrow title, the act encompasses a range of activities far broader than trafficking in stolen property. One such activity embraced by the statute is theft. Section 812.014 provides that:

(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent:

(a) To deprive the other person of a right to the property or a benefit therefrom.

(b) To appropriate the property to his own use or to the use of any person not entitled thereto.

Subsection 812.012(2)(d)(1) defines "obtains or uses" to mean any manner of "[c]onduct previously known as stealing; larceny; purloining; abstracting; embezzlement; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud, or deception." (Emphasis supplied.) Although the act expands the common law notion of theft, it is undisputably within the legislature's power to provide that statutory expansion.

Since the language pertaining to theft is of such a clear and concise nature, this Court is guided by the rule that "unambiguous statutory language must be accorded its plain meaning." Carson v. Miller, 370 So.2d 10, 11 (Fla.1979). Applying this rule to the facts of the instant case, it is clear that the alleged fraudulent and deceptive trade practices conducted by Roush's business constituted theft pursuant to the act and rendered Roush subject to the sanctions authorized by the act.

Unlike many criminal statutes, the Florida Anti-Fencing Act provides civil remedies, as well as criminal penalties, for violations of the act. Subsection 812.035(5) specifically confers upon any state attorney the authority to institute civil proceedings in response to violations of the act. Accordingly, in the instant case the Bay County State Attorney, armed with convincing evidence of Roush's fraudulent scheme, filed a motion for equitable relief with the circuit court, seeking imposition of the civil remedies provided by the act. In conducting a hearing on the Monday immediately following Roush's Friday receipt of service, the circuit court adhered to the dictate contained in subsection 812.035(5) that "the circuit court shall proceed as soon as practicable to the hearing" of actions brought under the section. (Emphasis supplied.) Although a weekend intervened between the service and hearing, the fact remains that the court followed the clear command of the section. And, just as the court's timing of its adjudication complied with the act, so too did the court's imposition of civil remedies.

Subsection 812.035(5) provides that "[p]ending final determination, the circuit court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, ... as the court may deem proper." Further, the court may order the seizure of all property subject to forfeiture under section 812.035. § 812.035(3), Fla.Stat. (1977). Subject to forfeiture is "[a]ll property ... used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation" of the act. § 812.035(2), Fla.Stat. (1977). Consequently, "after making due provisions for the rights of innocent persons" (subsection 812.035(1)), the circuit court had at its disposal a wide range of civil remedies with which it could prevent further violations of the act by Roush. In ordering the seizure of Roush's business property and temporarily restraining the conduct of his business activities, the court acted squarely within the bounds of its legislatively given authority. Thus, it is clear that the conduct of Roush's business was of a nature sufficient to bring it within the scope of the act. Likewise, the statute sanctioned the actions taken by the state and circuit court.

While any question relative to the applicability of the act here is easily resolved, a more difficult question is posed by the contention that enforcement of the civil remedies section of the act resulted in violations of Roush's procedural and substantive due process rights. We find, however, no merit to this claim.

Roush alleges that the speedy fashion in which the circuit court adjudicated his case deprived him of reasonable notice and the time to mount an adequate defense to the charges facing him, deprivations tantamount to infringements on his procedural due process guarantees. As noted, however, the court's timing of...