State v. Cronin, 1D99-3226.

• Decision Date: 29 December 2000
• Docket Number: No. 1D99-3226.,1D99-3226.
• Parties: STATE of Florida, Appellant, v. Nash N. CRONIN, Deborah Combs, Craig J. Oswald, Steven Warfield, Lakewood Chiropractic Clinic, P.A., Gerald R. Mart, D.D., Mark E. Klempner, D.C., Casmar Inc., d/b/a Casmar Chiropractic, Appellees.
• Court: Florida District Court of Appeals

774 So.2d 871

STATE of Florida, Appellant, v. Nash N. CRONIN, Deborah Combs, Craig J. Oswald, Steven Warfield, Lakewood Chiropractic Clinic, P.A., Gerald R. Mart, D.D., Mark E. Klempner, D.C., Casmar Inc., d/b/a Casmar Chiropractic, Appellees.

No. 1D99-3226.

District Court of Appeal of Florida, First District.

December 29, 2000.

Robert A. Butterworth, Attorney General; Edward C. Hill, Assistant Attorney General, Tallahassee, for appellant.

Nancy A. Daniels, Public Defender; Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee; Henry M. Coxe, III and Aaron Metcalf of Bedell, Dittmar, DeVault, Pillans & Coxe, P.A., Jacksonville; D. Gray Thomas of Sheppard, White & Thomas, P.A., Jacksonville; Robert Stuart Willis of Willis & Ferebee, P.A., Jacksonville, for appellees.

WOLF, J.

This is an appeal from a final order dismissing criminal charges against appellees. The state asserts that the trial court erroneously concluded that in order to pursue a violation of section 817.234(8), Florida Statutes, the state must allege and prove that the solicitation covered by the statute was made with an intent to defraud. While we conclude that fraudulent intent is not an element of the offense defined in the statute, we nevertheless hold that the statute as written violates the First Amendment of the United States Constitution and article I, section 4 of the Florida Constitution. The order dismissing the charges is therefore affirmed.

Appellees were charged with one violation of Florida's RICO Act and several violations of section 817.234(8), Florida Statutes, otherwise known as Florida's anti-solicitation statute, with the predicate conduct for the RICO charge being the several counts of unlawful insurance solicitation. The counts charging appellees with violations of section 817.234(8) alleged only that appellees had unlawfully solicited business from the victims for the purpose of making motor vehicle tort claims or claims for personal injury protection (PIP) benefits. Among the various motions to dismiss filed by appellees was a joint motion to dismiss the charges on grounds that the information failed to allege the essential element of the anti-solicitation offense that appellees had solicited their victims with the intent to defraud. The trial court dismissed the charges based on the fourth district's decision in Bradford v. State, 740 So.2d 569 (Fla. 4th DCA 1999), which the trial court interpreted as requiring an allegation that the solicitation occurred with the intent to defraud.

Under the express terms of section 817.234(8), any person who solicits business, through any medium, with the intent of receiving payment by making a motor vehicle tort claim or a claim for PIP benefits commits a third degree felony. See Barr v. State, 731 So.2d 126, 130 (Fla. 4th DCA 1999)

(holding that "to solicit" as used in the statute means to contact or communicate with either orally or in writing). In Barr, the defendant chiropractors had been charged with violating section 817.234(8) and filed motions to dismiss the charges arguing that the statute was unconstitutionally vague, overly broad, and violative of equal protection. See id. at 128. After the trial court in Barr denied their motions, the defendants pled no contest to the lesser offense of conspiracy to commit violations of the statute, specifically reserving their right to appeal the alleged unconstitutionality of the statute. See id. On appeal, the fourth district held that the statute passed the four-part test announced in Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) for determining the constitutionality of a restriction on commercial speech. See Barr, 731 So.2d at 129. The four prongs of the Central Hudson test, as modified by Board of Trustees of State Univ. of New York v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989), are: (1) whether the speech at issue is not misleading and concerns lawful activity; (2) whether the government has a substantial interest in restricting that speech; (3) whether the regulation directly advances the asserted governmental interest; and (4) whether the regulation is narrowly tailored, but not necessarily the least restrictive means available, to serve the asserted governmental interest. See Central Hudson, 447 U.S. at 566,

100 S.Ct. at 2351; Fox, 492 U.S. at 476-81,

109 S.Ct. at 3032-35. The fourth district in Barr reasoned that the first prong of the Central Hudson test had been satisfied because the solicitations made by the defendants in that case were unlawful only because they violated section 817.234(8). See Barr, 731 So.2d at 129. The court in Barr also reasoned that the second prong of the Central Hudson test had been satisfied because the state had a substantial interest in combating insurance fraud and the resulting increase in insurance premiums borne ultimately by the public. See id. The court in Barr further reasoned that the third prong of the Central Hudson test had been satisfied because section 817.234(8) does, in fact, directly advance the state's interest in preventing insurance fraud. See id. With regard to the fourth prong of the Central Hudson test, the court in Barr reasoned that it too had been satisfied because,

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.

Id.¹

A little over two months after the issuance of the decision in Barr, the fourth district again had occasion to write on the constitutionality of section 817.234(8) in Bradford v. State, 740 So.2d 569 (Fla. 4th DCA 1999). In Bradford, the defendant chiropractor had been charged with violating section 817.234(8) and had, like the defendants in Barr, filed a motion to dismiss the charges arguing that the statute was unconstitutionally vague, over broad, and violative of equal protection. See id. at 570-71. After the trial court denied his motion, the defendant in Bradford pled no contest to the lesser offense of conspiracy to commit violations of the statute, specifically reserving his right to appeal the alleged unconstitutionality of the statute. See id. On appeal, the fourth district in Bradford affirmed, based on its prior decision in Barr, but wrote to "clarify why subsection (8) does not punish purely innocent activity." Id. at 570. The fourth district explained that only solicitations made with an intent to defraud were prohibited by the statute. See id. at 571. The supreme court subsequently granted review. See State v. Bradford, 761 So.2d 331 (Fla.2000).

After the fourth district issued its opinion in Bradford, but before the supreme court granted review in that case, the third district in Hershkowitz v. State, 744 So.2d 1268 (Fla. 3d DCA 1999), also held that section 817.234(8) does not constitute an impermissible burden on the right to commercial speech, nor was it unconstitutionally vague, over broad, or violative of equal protection. In doing so, the court in Hershkowitz merely adopted "the reasoning and analysis outlined by the fourth district in [Barr], and reiterated and further supported in [Bradford]," without specifically adopting the language in the Bradford opinion which had indicated that an intent to defraud was a necessary element of the offense defined in section 817.234(8). See Hershkowitz, 744 So.2d at 1269

.

Subsequently, the fourth district in Hansbrough v. State, 757 So.2d 1282 (Fla. 4th DCA 2000), receded from its statement in Bradford that an intent to defraud was a necessary element of the offense defined in section 817.234(8). The court in Hansbrough indicated that "[w]hile the state [had] not alleged intent to defraud in Hansbrough's case," the language from Bradford indicating that such was required had been merely dicta and not controlling. See id. The supreme court has granted review. See Hansbrough v. State, 25 Fla. L. Weekly 47, ___ So.2d ___ (Fla. Nov. 13, 2000). Consequently, at the present time, there is no court in Florida which has specifically indicated that an intent to defraud is an essential element of the offense defined in section 817.234(8). Appellees, however, request that we insert the words "intent to defraud" into the statute in order to save the constitutionality of the statute. We decline to do so.

"Whenever possible, a statute should be construed so as not to conflict with the constitution." Firestone v. News-Press Publishing Co., Inc., 538 So.2d 457, 459 (Fla.1989). Such construction, however, must be consistent with the legislative intent ascertainable from the statute itself or its common sense application. See State v. Globe Communications Corp., 648 So.2d 110, 113 (Fla.1994)

; Long v. State, 622 So.2d 536, 537-38 (Fla. 1st DCA 1993). "It is fundamental that judges do not have the power to edit statutes so as to add requirements that the legislature did not include." Meyer v. Caruso, 731 So.2d 118, 126 (Fla. 4th DCA 1999).

Sections 817.234(1)(a),(2), and (3), Florida Statutes, specifically indicate that an intent to defraud is an element of the offenses defined in those subsections. Subsection (8), however, reads:

It is unlawful for any person, in his or her individual capacity or in his or her capacity as a public or private employee, or for any firm, corporation, partnership, or association, to solicit any business in or about city receiving hospitals, city and county receiving hospitals, county hospitals, justice courts, or municipal courts; in any public institution; in any public place; upon any public street or highway; in or about private hospitals, sanitariums, or any private institution; or upon private

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