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State v. Cronin12/29/2000
An appeal from the Circuit Court for Duval County. Lance M. Day, Judge.
This is an appeal from a final order dismissing criminal charges against appellees. The state asserts that the trial court erroneous 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 t
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