Atwater v. Kortum
95 So. 3d 85
| Fla. | 2012Background
- Public adjusters assist insureds and third-party claimants in filing/settling claims; Kortum challenged section 626.854(6) as unconstitutional free speech/equal protection claims; Task Force recommended a 72-hour non-solicitation period; Legislature enacted 48-hour restriction in 2008; amended related provisions later but not subsection (6); trial court found ambiguity and read the statute as prohibiting only in-person/phone contact and upheld constitutionality; First District held the provision bans all initiate-contact including written communications and invalidated it under Central Hudson; Florida Supreme Court granted review and affirmed, holding the statute regulates commercial speech and applying Central Hudson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 626.854(6) ban all public adjuster-initiated contacts? | Kortum argues it prohibits all initiate-contact by any means. | Department contends it restricts only in-person/phone contact, not written communications. | Yes; statute bans all initiate-contact. |
| Does the statute regulate commercial speech? | Kortum asserts it regulates speech, not just conduct. | Department contends it regulates conduct, not speech. | Yes; it regulates commercial speech. |
| Should Central Hudson apply to evaluate constitutionality? | Kortum/New District applied Central Hudson; First District correctly used it. | Because it regulates conduct, not speech, Central Hudson should not apply. | Central Hudson applies. |
| Is the restriction narrowly tailored to substantial government interests? | Kortum argues insufficient justification to burden commercial speech. | Department claims public protection interests justify the restriction. | Not satisfied; restriction not narrowly tailored. |
Key Cases Cited
- Edenfield v. Fane, 507 U.S. 761 (U.S. 1993) (solicitation in business context is protected commercial speech)
- Central Hudson Gas & Electric Corp. v. Public Service Comm. of N.Y., 447 U.S. 557 (U.S. 1980) (four-prong test for commercial speech regulation)
- United States v. O'Brien, 391 U.S. 367 (U.S. 1968) (conduct vs. speech; incidental restriction on speech)
- Holly v. Auld, 450 So.2d 217 (Fla. 1984) (statutory language must be given ordinary meaning; extrinsic aids used for doubtful meaning only)
- Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146 (Fla. 2000) (initial construction rules; extrinsic matters for doubtful meaning)