State v. Bradford

• Decision Date: 31 May 2001
• Docket Number: No. SC96910.,SC96910.
• Citation: 787 So.2d 811
• Parties: STATE of Florida, Petitioner, v. Charles BRADFORD, Respondent.
• Court: Florida Supreme Court

787 So.2d 811

STATE of Florida, Petitioner, v. Charles BRADFORD, Respondent.

No. SC96910.

Supreme Court of Florida.

May 31, 2001.

Robert A. Butterworth, Attorney General, Celia Terenzio, Assistant Attorney General, Bureau Chief, West Palm Beach, FL; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, FL, for Petitioner.

Michael E. Dutko of Bogenschutz & Dutko, P.A., Fort Lauderdale, FL, for Respondent.

Henry M. Coxe, III, and Aaron Metcalf of Bedell, Dittmar, DeVault, Pillans & Coxe, Jacksonville, FL; D. Gray Thomas and Wm. J. Sheppard of Sheppard, White & Thomas, P.A., Jacksonville, FL; and Robert Stuart Willis of Willis & Ferebee, P.A., Jacksonville, FL, for Steven Warfield, Lakewood Chiropractic Clinic, d/b/a Warfield Chiropractic Center, Mark E. Klempner, Casmar, Inc., and Craig J. Oswald, Amici Curiae.

Robert A. Ader and Elizabeth B. Hitt of the Law Offices of Robert Ader, Miami, FL, for Dr. Randolph Hansbrough, Amicus Curiae.

LEWIS, J.

We have for review Bradford v. State, 740 So.2d 569 (Fla. 4th DCA 1999), which expressly declares valid section 817.234(8), Florida Statutes (1997), a statute criminalizing certain conduct related to solicitation when insurance benefits are available. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we quash the district court's decision. In so doing, we hold that because the Legislature did not include fraudulent intent as an element of unlawful insurance solicitation, the statute at issue unconstitutionally infringes upon the protections afforded commercial speech by the First Amendment to the United States Constitution.¹

FACTS

This case is one in a long line of cases in which the State charged several chiropractors with unlawful insurance solicitation in violation of section 817.234(8).² The specific facts relating to Mr. Bradford's prosecution are as follows.

Charles Bradford, a licensed chiropractor, was charged by information with two counts of unlawful insurance solicitation in violation of section 817.234(8). The charges stemmed from Bradford's business relationship with Prebeck Consultants, Incorporated, a company engaged in the business of scheduling appointments with chiropractors for persons involved in motor vehicle accidents. Specifically, in this case, after obtaining a motor vehicle accident report, a Prebeck representative telephonically solicited persons listed on an accident report for the purpose of scheduling an initial examination with Bradford, and possible subsequent treatment, if necessary, for injuries arising from the traffic accident. Bradford examined the solicited individuals, determined that treatment was necessary, and later billed their personal injury protection (PIP) insurance carrier for the services rendered. During the course of pretrial hearings, the State acknowledged and agreed that Bradford's conduct contained no element of fraudulent behavior, but explained that the statute under which he was being prosecuted did not require proof of any element of fraud. Ultimately, after the trial court denied Bradford's motion to dismiss, he entered a plea of no contest to the lesser included offense of conspiracy to commit unlawful insurance solicitation, specifically reserving his right to seek appellate review of the issue concerning the alleged unconstitutionality of the statute under which he had been charged.

While Bradford was seeking review of his conviction, other chiropractors also charged with unlawful insurance solicitation were also appealing their convictions. The first of these cases to have an appellate decision was Barr v. State, 731 So.2d 126 (Fla. 4th DCA 1999). The chiropractors in Barr challenged the constitutionality of subsection (8) of the subject statute on several bases. Relevant to our consideration was the challenge presented under First Amendment protection. The district court, applying the test outlined by the United States Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), held:

[T]he 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.

Barr, 731 So.2d at 129.

Shortly after the Barr decision was published, Bradford's case was also presented to the Fourth District. See Bradford, 740 So.2d at 569. Based on its analysis in Barr, the Fourth District again determined that the statute was constitutional. See Bradford, 740 So.2d at 570

. The district court, noting that it was only writing to clarify why subsection (8) did not punish purely innocent activity, concluded that "in enacting subsection (8) [the Legislature] intended to punish only solicitations made for the sole purpose of defrauding that patient's PIP insurer." Id. at 571. This reasoning was based on (1) the district court's decision to read subsection (1)(a), which criminalizes certain acts performed with the intent to defraud, in pari materia with subsection (8), which was totally void of any language as to intent to defraud; and (2) the Fourth District's focus on the title of section 817.234: "False and fraudulent insurance claims." Thus, the Fourth District's reasoning essentially inserted an element into the statute that did not otherwise exist.

In late 1999, the Third District was presented with yet another of these cases challenging the validity of section 817.234(8) on, inter alia, First Amendment grounds. See Hershkowitz v. State, 744 So.2d 1268 (Fla. 3d DCA 1999)

. The district court in Hershkowitz relied on the Fourth District's decisions in Barr and Bradford to conclude that the statute did not create a constitutionally impermissible burden on the right to commercial speech. See Hershkowitz, 744 So.2d at 1270.

Approximately one year after announcing the Bradford decision, the Fourth District again addressed the constitutionality of section 817.234(8). See Hansbrough v. State, 757 So.2d at 1282 (Fla. 4th DCA),

review granted, 779 So.2d 271 (Fla.2000). In that case, however, the court wrote:

[T]his court, in Bradford [], followed Barr, but, in order to satisfy the third-prong of the Central Hudson four-prong test, interpreted section 817.234(8) as applying only where the defendant intends to defraud an insurance carrier. However, in Barr, we had previously ruled that section 817.234(8) satisfied the state's interest in preventing fraud. Accordingly, language in Bradford, interpreting section 817.234(8) as requiring an intent to defraud in order to satisfy the third prong of the Central Hudson test, was dicta and not controlling.[³]

Id. at 1283.

During the pendency of the present case, the First District departed from the reasoning espoused by the Third and Fourth Districts and held that the statute is unconstitutional. See State v. Cronin, 774 So.2d 871 (Fla. 1st DCA 2000)

. In Cronin, the district court first determined that there was no support for the conclusion that the Legislature intended to make fraudulent intent an element of the statute at issue. See id. at 874. The court further held that the statute was unconstitutional because it was not narrowly tailored, as required by the Central Hudson test. See id. at 876.

With that background in mind, we consider two issues. First, we must determine whether intent to defraud is an element of the offense of unlawful insurance solicitation, as specifically codified in section 817.234(8). Second, if fraud is not an element, we must then decide whether section 817.234(8) violates the protections afforded by the First Amendment to commercial speech. We address each issue in turn.

1. Whether Intent to...