TSA STORES v. Department of Agriculture

957 So. 2d 25, 2007 WL 1158211
CourtDistrict Court of Appeal of Florida
DecidedApril 20, 2007
Docket5D06-1775
StatusPublished
Cited by3 cases

This text of 957 So. 2d 25 (TSA STORES v. Department of Agriculture) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TSA STORES v. Department of Agriculture, 957 So. 2d 25, 2007 WL 1158211 (Fla. Ct. App. 2007).

Opinion

957 So.2d 25 (2007)

TSA STORES, INC., A Delaware Corporation, Appellant,
v.
DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.

No. 5D06-1775.

District Court of Appeal of Florida, Fifth District.

April 20, 2007.

*26 Brian J. Gillis, of Bogin, Munns & Munns, P.A., Orlando, and William E. Raney, of Copilevitz & Canter, LLC, Kansas City, Missouri, for Appellant.

Louis E. Stolba and Raymond C. Conklin, of Florida Department of Agriculture and Consumer Services, Tallahassee, for Appellee.

MONACO, J.

This case causes us to examine the reach of section 501.059, Florida Statutes (2004), the statute that governs telephone solicitations in Florida. TSA Stores, Inc., which operates retail establishments in Florida known as "The Sports Authority," seeks reversal of the trial court's Final Summary Judgment and Permanent Injunction in which the court: (1) permanently enjoined TSA from calling Florida consumers whose names appear on the quarterly "no sales solicitation calls" list published by the appellee, State of Florida Department of Agriculture and Consumer Services; and (2) permanently enjoined TSA from using or employing an automated system for the selection and dialing of telephone numbers or playing a recorded message when the number called is answered; and (3) imposed a civil penalty for the statutory violations. We are presented in this case with issues of first impression in Florida. We affirm the final judgment as it relates to the automated dialing and recorded message violations, but reverse with respect to the calls on the "do-not-call" lists because these calls fall within a statutory exemption.

The Department initiated this case by the filing of a complaint accusing TSA of violating sections 501.059(4) and (7), and seeking injunctive relief and civil penalties. At the time TSA had its principal place of business in Broward County, Florida, but the telephone calls that form the substance of the complaint were made to consumers throughout Florida, including Orange County, the venue for this action.[1] The Department alleged that TSA was conducting part of its business by making or allowing others to make telephonic sales calls to citizens of Florida and playing a recorded message when the number called was answered. According to the Department, TSA had been making unsolicited telephonic sales calls to persons in this state whose names appeared on the then-current quarterly no sales solicitation list published by the Department. In addition, the Department alleged that TSA made or knowingly allowed sales call to be made with an automated system without a live operator introducing the message in violation of section 501.059(7), Florida Statutes.

TSA first attempted to remove this case to the United States District Court for the Middle District of Florida. TSA posited that the Federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, preempted section 501.059, and that removal was, therefore, justified. The federal court concluded, however, that the case was improvidently removed from the Florida courts, and remanded it back to the Circuit Court for Orange County, Florida.

*27 After the close of the state court pleadings, the Department moved for summary judgment. The trial court, in granting summary judgment, first adopted the rulings of the federal court as its own. It then concluded that TSA violated section 501.059 in two distinct ways.

First, it addressed the issues surrounding seventy-seven persons who actually made purchases at The Sports Authority facilities in Florida within 18 months preceding TSA's making of an unsolicited telephone sales call. Each of these persons was on the Florida "do-not-call" list.[2] TSA asserted that all of these persons fell within the exemption set forth in section 501.059(1)(c)3., which allows a telephonic sales call to a person on the "do-not-call" list if that person is one "with whom the telephone solicitor has a prior or existing business relationship." The Department, however, argued that a "business relationship" implies more than the "mere speculation" that a past customer may choose to buy from TSA again. The trial judge agreed with the Department and concluded that "the mere occurrence of sales to TSA's past customers — without more — do [sic.] not constitute `prior or existing business relationships' within the contemplation of subsection 501.059(1)(c)3."

Next, the trial court considered the issues surrounding seventy-three persons on the do-not-call list who received a recorded message concerning a sale to be held at TSA's stores within Orange County, Florida. TSA in this connection was charged with violating section 501.059(7)(a), which reads:

No person shall make or knowingly allow a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called.

While this provision specifically protects persons on the do-not-call list, it does not appear to be subject to an exception for prior or existing business relationships. See § 501.059(7)(b), Fla. Stat. (2004).

TSA argued, first, that the automated pitches were not "telephonic sales calls" because they only invited past customers to a sales event at TSA stores. Next, it argued that in any event, each of these calls was made from California to Florida customers, and that because Florida courts do not have jurisdiction over interstate calls, the statute did not apply to it. The trial court found, however, that the Florida statute applied, and that TSA violated it because the calls constituted telephonic sales calls within the meaning of the statute. Implicit in these holdings of the trial court is the conclusion that even though the telephone calls were initiated from outside of Florida, the TCPA did not preempt the applicable Florida statute.

I. Federal Preemption.

The TCPA resulted from findings made by Congress during the early 1990's that for many consumers telemarketing sales calls were an "intrusive invasion of privacy," as well as an unwanted opportunity for unscrupulous persons to commit fraud upon them. See Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228, 1235 (10th Cir.2004). Congress estimated that consumers were losing about $40 billion per year as a result of telemarketing fraud. Id. In order to deal with this growing concern Congress authorized the creation *28 of a national database of consumers who objected to receiving such telephone calls. Since then, well over half of the states have adopted statutes restricting various practices by telemarketing firms. See Van Bergen v. Minnesota, 59 F.3d 1541, 1548 (8th Cir.1995).

The overarching consideration governing the dispute before us in the present case is whether the federal government by enactment of the TCPA has preempted the regulation of telephonic sales calls. That is to say, we must first determine whether there was any room for regulation by Florida of these telephone calls. The answer is to be found within the TCPA itself.

47 U.S.C. § 227

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Cite This Page — Counsel Stack

Bluebook (online)
957 So. 2d 25, 2007 WL 1158211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tsa-stores-v-department-of-agriculture-fladistctapp-2007.