Abbott v. Advantage Travel, L.C.
Filing
20
ORDER granting 12 Motion to Dismiss Count II for Failure to State a Claim. Signed by Judge Gregory A. Presnell on 5/12/2014. (ED)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SETH ABBOTT,
Plaintiff,
v.
Case No: 6:14-cv-172-Orl-31GJK
ADVANTAGE TRAVEL, LC,
Defendant.
ORDER
This matter comes before the Court without a hearing on the Motion to Dismiss Count II
(Doc. 12) filed by the Defendant, Advantage Travel, LC (“Advantage Travel”), and the response
in opposition filed by the Plaintiff, Seth Abbott (“Abbott”).
On February 3, 2014, Abbott filed a two-count complaint against Advantage Travel,
seeking to recover damages under the Telephone Consumer Protection Act of 1991 (the “TCPA”),
47 U.S.C. § 227, et seq., and attorneys’ fees under a state law governing telephone solicitation,
Fla. Stat. § 501.059 for. Abbot alleged that he received dozens of unsolicited calls from the
Defendant over a one-month period, advertising vacation- and travel-related services. The
Defendant seeks dismissal of Count II on the grounds that Fla. Stat. § 501.059 does not provide a
private right of action.
Under Florida law, the issue of whether a statutory cause of action should be judicially
implied is a question of legislative intent. Horowitz v. plantation General Hosp. Ltd.
Partnership, 959 So. 2d 176, 182 (Fla. 2007). “Legislative intent,” in this regard, is a shorthand
reference to the ordinary tools for discerning statutory meaning: text, context, and purpose. Id.
The primary guide to analyzing whether the Legislature intended to impose civil liability is, as in
all cases of statutory construction, the actual language used in the statute. Id.
Section 501.059 obligates telephone solicitors to behave in certain ways 1 and makes it
unlawful for them to act in certain others. 2 The only entities explicitly provided with a right of
action under Section 501.059 are the Florida Department of Agriculture and Consumer Services
and the Florida Department of Legal Affairs. Fla. Stat. § 501.059(9)(a). More particularly,
Section 501.509(9)(a) provides that the Department of Agriculture and Consumer Services shall
investigate complaints of violations and if any are found, either that Department or the Department
of Legal Affairs “may bring an action to impose a civil penalty and to seek other relief, including
injunctive relief … against the telephone solicitor.” Fla. Stat. § 501.059(9)(a). The civil penalty
in any such an action “may not exceed $10,000 per violation” and any such penalty must be
deposited in certain specified state trust funds. Fla. Stat. § 501.059(9)(a).
1
For example, Section 501.059(2) provides that
Any telephone solicitor who makes an unsolicited telephonic sales
call to a residential, mobile, or telephonic paging device telephone
number shall identify himself or herself by his or her true first and
last names and the business on whose behalf he or she is soliciting
immediately upon making contact by telephone with the person who
is the object of the telephone solicitation.
2
As an example, Section 501.059(8)(d) provides:
It shall be unlawful for any person who makes a telephonic sales call
or causes a telephonic sales call to be made to intentionally alter the
voice of the caller in an attempt to disguise or conceal the identity of
the caller in order to defraud, confuse, or financially or otherwise
injure the recipient of a telephonic sales call or in order to obtain
personal information from the recipient of a telephonic sales call
which may be used in a fraudulent or unlawful manner.
-2-
Abbott argues that the telephone solicitations at issue in Count I – the TCPA – also
constitute violations of Fla. Stat. § 501.059, and that “the Florida legislature intended to permit a
private right of recovery of attorney’s fees and costs for violations of its provisions when brought
pursuant to its federal counterpart which provides the private right of action for improper
telephone solicitation activity, the TCPA.” (Doc. 18 at 6). In support of his argument that the
Legislature intended to permit a private right of recovery under this statute, Abbott notes that
Section 501.059(10) provides two separate provisions for recovery of attorney’s fees:
(a) In any civil litigation resulting from a transaction involving a
violation of this section, the prevailing party, after judgment in the
trial court and exhaustion of all appeals, if any, shall receive his or
her reasonable attorney’s fees and costs from the nonprevailing
party.
…
(e) In any civil litigation initiated by [the Department of
Agriculture and Consumer Services] or the Department of Legal
Affairs, the court may award to the prevailing party reasonable
attorney’s fees and costs if the court finds that there was a complete
absence of a justiciable issue of either law or fact raised by the
losing party or if the court finds bad faith on the part of the losing
party.
Fla. Stat. § 501.059(10) (emphasis added). Abbott reads these two subsections as providing two
different methods of recovering attorney’s fees for two different types of telephone solicitation
suits: those brought by the two named departments (Section 501.059(10)(e)) and those brought by
everyone else (Section 501.059(10)(a)). (Doc. 18 at 7). As such, Abbott reasons, the Florida
legislature intended that consumers, as well as the named departments, should have a right of
action under Section 501.059.
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Abbott offers no case law in support of this interpretation of Fla. Stat. §501.059. 3 While
tacitly conceding that the statute provides no opportunity for private parties to obtain anything
other than costs and fees, Abbott offers no explanation as to why the Florida Legislature would
empower outraged consumers to sue pesky telephone solicitors but deny them the ability to
recover damages or even obtain injunctive relief. Abbott suggests that – at least in part -- the
legislature’s intent in enacting Section 501.059 was to allow Floridians to recover fees and costs
when bringing suit under the TCPA, but there is no requirement in the state law that private parties
pursue any other claim while proceeding under Fla. Stat. § 501.059.
More importantly, it should be noted that Section 501.059 regulates not only telephone
solicitations, but transactions resulting from such solicitations. (Among numerous other
examples, Section 501.059(6)(b)(6) provides that a contract made pursuant to a telephone sales
call must be reduced to writing and signed by the consumer and “[m]ay not exclude from its terms
any oral or written representations made by the telephone solicitor to the consumer in connection
with the transaction.” 4) Although not a defined term, it is clear from a review of the statute that
3
To be fair, although Section 501.059 has been on the books in one form or another since
1987, there are very few reported decisions construing any facet of it, and the Court’s research did
not uncover any addressing the private-right-of-action issue.
4
Similarly, Section 501.059(7)(c) reads as follows:
The provisions of this subsection do not apply to a transaction:
1. Made in accordance with prior negotiations in the course of a
visit by the consumer to a merchant operating a retail business
establishment which has a fixed permanent location and where
consumer goods are displayed or offered for sale on a continuing
basis;
2. In which the consumer may obtain a full refund for the return of
undamaged and unused goods or a cancellation of services notice to
the seller within 7 days after receipt by the consumer, and the seller
-4-
“transaction” in this context is intended to mean an exchange of money for goods or services,
rather than a mere interaction -- such as an unsolicited phone call.
Section 501.059(10)(a) applies to litigation “resulting from a transaction involving a
violation of this section”; Section 501.059(10)(e) applies to “any civil litigation”. Thus, the two
different methods of recovering attorneys’ fees involve different claims, not different claimants.
Where the case arises from a transaction alleged to violate Section 501.059, the prevailing party is
always entitled to recover fees. In all other Section 501.059 cases, the prevailing party may be
awarded fees where there is no justiciable issue of law or fact, or the the other party acted in bad
faith.
The Court concludes that the Florida Legislature did not intend to permit entities other than
will process the refund within 30 days after receipt of the returned
merchandise by the consumer;
3. In which the consumer purchases goods or services pursuant to
an examination of a television, radio, or print advertisement or a
sample, brochure, or catalog of the merchant that contains:
a.
The name, address, and telephone number of the merchant;
b.
A description of the goods or services being sold; and
c.
Any limitations or restrictions that apply to the offer; or
4. In which the merchant is a bona fide charitable organization or a
newspaper as defined in chapter 50.
Fla. Stat. § 501.059(7)(c).
-5-
the Florida Department of Agriculture and Consumer Services and the Florida Department of
Legal Affairs to bring suit pursuant to Fla. Stat. § 501.059. Accordingly, it is hereby
ORDERED that the Motion to Dismiss Count II (Doc. 12) is GRANTED, and Count II is
DISMISSED WITH PREJUDICE.
DONE and ORDERED in Chambers, Orlando, Florida on May 12, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Party
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