Florida’s Public Adjuster Ban Ruled Unconstitutional
Dec 29, 2010
Privileged and Confidential
Colodny Fass represented the Florida Property and Casualty Association in connection with the submission of an amicus brief in the following matter:
Frederick W. Kortum, Jr. v. Alex Sink, in her official capacity as Chief Financial Officer and head of the Department of Financial Services for the State of Florida – Florida First District Court of Appeal, Case No. 1D10-2459
The Florida 1st DCA issued an opinion today holding unconstitutional section 626.854(6), Florida Statutes (2008), which barred solicitation initiated by public adjusters for a period of forty-eight (48) hours after the occurrence of an event that may be the subject of a claim under an insurance policy. The Circuit Court for Leon County had previously upheld the ban. In reversing, the Court set forth that the statutory provision regulates commercial speech and is protected by the First Amendment. As such, the matter was governed by the U.S. Supreme Court decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980).
The Court ultimately held the statutory provision unconstitutional because it determined that it was more extensive than necessary to serve the asserted governmental interest. The decision hinged on whether the statute contained a complete ban on all solicitation for the forty-eight (48) hours, or prohibited face-to-face and telephonic solicitation, while still allowing for written and email solicitations. After a lengthy discussion, the Court determined that it had no evidence to suggest the limitation did not include all public adjuster-initiated contact, whether electronic, written or oral. The Court pointed out that there is no legislative history to support a limiting interpretation, and the plain language of the statute is all-encompassing.
On a positive note, the Court seems to have left the door open for legislative action limiting the statutory ban to only in-person and telephonic conduct initiated by public adjusters. We filed an amicus brief on behalf of the FPCA arguing that the governmental interest in regulating public adjusters was substantial and that the regulation directly advances the interest asserted. The Court agreed that the burden had been satisfied of demonstrating that the statute directly advances the asserted governmental interest of protecting individuals that have suffered a traumatizing loss from intrusive unsolicited contact by public adjusters by granting them a brief period of breathing room.
To view a copy of the opinion, click here.
Should you have any comments or questions, please contact Katie Webb (firstname.lastname@example.org) at Colodny Fass.