DANA‘S RAILROAD SUPPLY, Dana Jackson, TM Jewelry LLC, Lee Harper, Tallahassee Discount Furniture, Duana Palmer, Cook‘s Sportland, Eric Cook, Plaintiffs-Appellants, v. ATTORNEY GENERAL, State of FLORIDA, Defendant-Appellee.
No. 14-14426.
United States Court of Appeals, Eleventh Circuit.
Nov. 4, 2015.
807 F.3d 1235
Similarly, the exclusion substantially prejudiced GEICO. A jury would no doubt find it exceedingly relevant that Florida law on implied consent was in a state of flux, or that a panel of Florida‘s First District Court of Appeal and a United States District Judge for the Southern District of Florida supported GEICO‘s conclusion regarding implied consent. And the Florida Supreme Court‘s decision in Chandler would allow GEICO and its expert to explain to the jury how Florida law on implied consent became clear only after GEICO‘s coverage determination. The exclusion, then, certainly “substantial[ly] influence[d] . . . the outcome of the case.” See Hearn, 603 F.3d at 904 n. 11 (internal quotation marks omitted).
III.
Ultimately, where the “weight of legal authority on the coverage issue” and the reasonableness of the coverage decision are at issue, see Robinson, 583 So.2d at 1068, we would expect opinions considering, applying, and clarifying such legal authority to be relevant. Because the evidence was relevant, and because any other basis for exclusion raised by the district court or by Garcia is insufficient as a matter of law, the exclusion was an abuse of discretion. We therefore vacate the final judgment and remand for a new trial consistent with this opinion.
VACATED and REMANDED.
Osvaldo Vazquez, Attorney General‘s Office, Pam Bondi, Allen C. Winsor, Attorney General‘s Office, Tallahassee, Fl, for Defendant-Appellee.
Before ED CARNES, Chief Judge, TJOFLAT and SENTELLE,* Circuit Judges.
TJOFLAT, Circuit Judge:
Anyone who has ever made a purchase at a gas station, corner store, or shopping mall will not be shocked to learn that swiping a credit card is often more expensive than is paying with cash. What may be shocking to learn is that Florida makes it a second-degree misdemeanor for “[a] sellor or lessor in a sales or lease transaction” to “impose a surcharge on the buyer or lessee for electing to use a credit card,”
* The Honorable David Bryan Sentelle, United States Circuit Judge for the District of Columbia Circuit, sitting by designation.
The First Amendment prevents staking citizens’ liberty on such distinctions in search of a difference. Florida‘s no-surcharge law directly targets speech to indirectly affect commercial behavior. It does so by discriminating on the basis of the speech‘s content, the identity of the speaker, and the message being expressed. Because the at-best plausible justifications on which the no-surcharge law rest provide no firm anchor, the law crumbles under any level of heightened First Amendment scrutiny. We, therefore, must strike down
I.
In 2014, four small businesses filed suit in the Middle District of Florida after receiving cease-and-desist letters from the Florida Attorney General demanding they refrain from certain business practices that, according to the Attorney General, ran afoul of the State‘s no-surcharge law. Essentially, each of these businesses—which charged lower prices for customers using cash and higher prices for those using credit cards—wishes to express to their customers the price difference as an additional amount for credit-card use rather than a lesser amount for paying in cash.
Dana‘s Railroad Supply, a family-run hobby shop in Spring Hill, received a cease-and-desist letter on March 15, 2013, after posting a sign indicating that its customers would be subject to a fee for using credit cards to make purchases. TM Jewelry LLC, a specialty jewelry store in Key West, received its letter on July 26, 2013, for communicating to customers that they faced an additional fee for the use of a credit card. Tallahassee Discount Furni-
These businesses, plaintiffs below and appellants here, filed their complaint on March 5, 2014, presenting two claims for relief under
On September 2, 2014, the District Court granted the Attorney General‘s motion, dismissing with prejudice the businesses’ complaint. Because the court held that the no-surcharge law is a “[r]estriction[] on pricing” that fell within “the Florida Legislature‘s broad discretion in regulating economic affairs,” it subjected the law to rational-basis review.
The District Court hypothesized three possible justifications for the no-surcharge law.2 First, the court considered an anti-fraud rationale viewing the no-surcharge law as designed to prevent “bait and switch” tactics. That is, the law could be aimed at preventing merchants from “initially communicating only the lower price—the cash price” and then later charging a higher price—the credit-card price. Second and relatedly, the court turned to a notice rationale that perhaps the no-surcharge law prevents “unpleasant surprises” not rising to the level of a full-blown bait and switch. Finally, the court entertained a fairness rationale whereby no merchant would have the discretion to impose credit-card surcharges, preventing “competitive disadvantage” in the marketplace.
The District Court concluded that, though none of these justifications are “compelling” and “might not even be persuasive,” the no-surcharge law nonetheless survives rational-basis review.3 Notably, the District Court declined to apply any level of First Amendment scrutiny despite its understanding that “the difference between a cash discount and a credit-card surcharge makes no difference in the price a customer must pay” and that the effect
The businesses appealed. We now reverse.
II.
Before addressing the merits, we briefly address the Attorney General‘s argument that we lack jurisdiction to hear a portion of this appeal. The “irreducible constitutional minimum of standing” requires litigants in federal court to demonstrate: (1) that they suffered an “injury in fact,” which is a “concrete and particularized” and “actual or imminent” legally cognizable harm; (2) that a “causal connection” exists between the injury in fact and the opposing party‘s conduct; and (3) that the injury “will be redressed by a favorable decision.” See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-62 (1992) (citations and quotation marks omitted). When First Amendment protections are implicated, we apply “most loosely” the injury-in-fact requirement “lest free speech be chilled.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1253-57 (11th Cir. 2010).
The businesses have properly alleged standing on their free-speech claim. Each business has been injured by the receipt of a cease-and-desist letter from the Attorney General threatening enforcement action, which could result in fine or imprisonment; that action is, and any future enforcement action would be, directly traceable to the State of Florida; and a declaration by this court that the no-surcharge law is unconstitutional will remedy the businesses’ harm. The businesses’ harm is sufficiently particularized and imminent, and the likelihood of their speech being chilled is sufficiently great, for review by this court.
Nor are the businesses barred from pursuing their void-for-vagueness claim because they seek pre-enforcement review. The general rule provides that litigants can raise void-for-vagueness challenges only as a defense during an actual prosecution because that defense turns on whether the State provided fair warning, as a matter of due process, to the litigants that their conduct would expose them to liability. Bankshot Billiards, Inc. v. City of Ocala, 634 F.3d 1340, 1348-50 (11th Cir. 2011). “Litigants may not comb the statute books for poorly drafted laws and sue to enjoin their enforcement.” Id. at 1349. Litigants who are being “chilled from engaging in constitutional activity,” however, suffer a discrete harm independent of enforcement, and that harm creates the basis for our jurisdiction. Id. at 1349-50. Here, though the businesses properly raised it, we need not reach the void-for-vagueness issue because any reasonable construction of Florida‘s no-surcharge law fails any level of heightened scrutiny.
With our jurisdiction established, we proceed to the merits.
III.
This appeal presents a pure question of law: the facial validity of Florida‘s no-surcharge law under the First Amendment to the United States Constitution. Our review is de novo. Burk v. Augusta-Richmond Cty., 365 F.3d 1247, 1250 (11th Cir. 2004).
The fate of Florida‘s no-surcharge law hinges on a single determination: whether the law regulates speech—triggering First Amendment scrutiny—or whether it regulates conduct—subject only to rational-basis review as a mine-run economic regulation. The First Amendment provides, in relevant part, that “Congress
To make the dispositive speech-conduct determination, we turn first to the text of the statute. Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc). We do not lightly make the decision to strike down laws passed by the people through their democratically accountable representatives. Bound as all human communication is by the confines of language, legislatures will at times enact statutes capable of sustaining multiple interpretations. Cognizant of this reality, before holding that a statute violates the Constitution we therefore look to “reasonable” alternative constructions. Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 2593-94 (2012). At times, this means that we will adopt saving interpretations of constitutionally dubious laws that are not “the most natural.” Id. at 2594. We will not, however, contort, disfigure, or vitiate a law‘s plain meaning and readily discerned purpose merely for the sake of statutory preservation. See, e.g., George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.) (“But avoidance of a [constitutional] difficulty will not be pressed to the point of disingenuous evasion.“).
Proceeding to the matter at hand, the relevant language of the no-surcharge law provides:
(1) A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment by cash, check, or similar means, if the seller or lessor accepts payment by credit card. A surcharge is any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment.
This section does not apply to the offering of a discount for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, if the discount is offered to all prospective customers.
(2) A person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, . . .
Attempting to read Florida‘s no-surcharge law as a regulation of economic conduct rather than as a restriction on speech casts the judicial Theseus into the depths of a lexical labyrinth. Given the potential for confusion, we find our bearings by beginning with what the no-surcharge law does not do before explaining what it does do. We conclude that no saving effort, however valiant, can overcome the clear thrust of the statute‘s plain meaning.
The statute might appear at first blush to ban merchants from engaging in dual-pricing. That is, it would prohibit merchants from charging different prices to different customers depending on whether payment is made in cash6 or by credit card. Yet, by the statute‘s own terms, that cannot be. Merchants are expressly allowed to offer a “discount for the purpose of inducing payment by cash.”
If the no-surcharge law does not ban dual-pricing, we presume that it does something else. See Bouchard Transp. Co., Inc. v. Updegraff, 147 F.3d 1344, 1351 (11th Cir. 1998) (“[W]e avoid statutory constructions that render provisions meaningless“). Perhaps the statute instead bans the selective raising of previously announced prices “imposed at the time of a sale” for credit-card users.
The anti-bait-and-switch construction, however, fares no better than reading the statute as a complete ban on dual-pricing. We reject this construction because it would narrow the no-surcharge law into nothingness. All a merchant need do to avoid liability would be to announce to potential customers the price difference in advance of any sale. Assuming proper notice had been given, credit-card surcharges could be declared with impunity on signs, on price tags, as a line item on receipts, and in response to credit-card-wielding customers’ questions as to why they are being charged more than their cash-flush peers. Under this strained reading, even the cheeky merchant who hung a sign on the till that read “You, the buyer, will have a surcharge imposed on the price of your purchase if you elect to use a credit card in lieu of payment by cash“—complete with citation to
Our conclusion rejecting this alternative construction is bolstered by the Attorney General‘s own reading of the no-surcharge law. Not only did the Attorney General disavow such a narrow reading of the statute in her brief and at oral argument, but there is also no indication in the record that any of the businesses’ purportedly illegal surcharges referenced in the cease-and-desist letters were concealed from their customers until the point of sale. Indeed, the letter directed to Dana‘s Railroad Supply was issued in response to the decision to post a sign announcing its policy of imposing credit-card fees. Moreover, construing the statute as a bait-and-switch offense would cover only conduct already covered by the Florida Deceptive and Unfair Trade Practices Act, the State‘s unfair-competition law.
After all, what is a surcharge but a negative discount? If the same copy of Plato‘s Republic can be had for $30 in cash or $32 by credit card, absent any communication from the seller, does the customer incur a $2 surcharge or does he receive a $2 discount? Questions of metaphysics aside, there is no real-world difference between the two formulations. Accordingly, Florida‘s no-surcharge law is a restriction on speech, not a regulation of conduct. Cf. Rumsfeld v. Forum for Acad. and Inst. Rights, Inc., 547 U.S. 47, 60-62 (2006) (holding that laws that neither “limit[] what [people] may say nor require[] them to say anything” regulate conduct, not speech).
To more fully understand why the statute restricts speech, rather than regulates conduct, imagine the following. Ostensibly worried about customers’ dining experiences being adversely affected by their unquenched thirst, a state makes it a crime for restauranteurs to serve half-empty beverages. Restauranteurs are, however, expressly allowed to serve half-full beverages. The state has no greater regulatory scheme requiring restaurants to provide beverage refills, nor does it even require that beverages be served at all. Would we say that what the state has done merely regulates the economic affairs of the food-service industry? Of course not. Liability for violating this glass-half-full mandate turns solely on the restauranteurs’ choice of words. It is therefore a restriction of speech, not conduct. And it is a restriction that discriminates against expression on the basis of content—dictating what restauranteurs can talk about—as well as on the basis of viewpoint—dictating how restauranteurs can speak about those subjects.
We see no legally salient difference between a glass-half-full mandate and Flori-
IV.
Having decided that Florida‘s no-surcharge law triggers First Amendment scrutiny as a restriction on speech, we turn next to what level of scrutiny it must face. Content-based restrictions on speech “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 2226 (2015) (citations omitted). A restriction on speech is content based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 2227.
As is so often true, the general rule that content-based restrictions trigger strict scrutiny is not absolute. Content-based restrictions on certain categories of speech such as commercial and professional speech, though still protected under the First Amendment, are given more leeway because of the robustness of the speech and the greater need for regulatory flexibility in those areas. See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (commercial speech); Wollschlaeger v. Governor of Florida, 797 F.3d 859 (11th Cir. 2015) (professional speech). For these categories of speech, the inquiry is the more flexible, yet still searching, standard of intermediate scrutiny. See Cent. Hudson Gas v. Pub. Serv. Comm‘n of N.Y., 447 U.S. 557, 564 (1980) (describing the test for commercial speech); Wollschlaeger, 797 F.3d at 893-97 (applying the same test to professional speech). Under intermediate scrutiny “restrictions directed at commerce or conduct” may be upheld—assuming they further a substantial government interest and are narrowly tailored—even if they “impos[e] incidental burdens on speech.” Sorrell, 564 U.S. at 131 S.Ct. at 2664-65.
Florida‘s no-surcharge law proves difficult to categorize, skirting the line between targeting commercial speech and restricting speech writ large. We need not, however, decide on which side of that line the statute ultimately falls because it collapses under any level of heightened scrutiny. Cf. id. at 2667 (declining to specify the level of “heightened scrutiny” applied when the challenged law would fail under either possible standard). Thus, we analyze the no-surcharge law under the more-forgiving standard of intermediate scrutiny, which it nonetheless fails.
A.
Commercial speech is a narrow category of necessarily expressive communication that is “related solely to the economic interests of the speaker and its audience,” Cent. Hudson, 447 U.S. at 561, or that “does no more than propose a commercial transaction.”
Florida‘s no-surcharge law clearly touches on economic activity. On its face, the law appears to regulate businesses engaged in dual-pricing, applies to “[a] sellor or lessor in a sales or lease transaction,” turns on the method of payment used, and defines the offense as occurring “at the time of a sale or lease transaction.”
Yet the law‘s taste is muddled by less savory notes of plain old-fashioned speech suppression. The statute goes to great length to avoid direct regulation of any actual conduct—that is, it fails to limit at all merchants’ discretion to engage in dual-pricing—in favor of limiting speech alone. And the speech it limits contains elements of core political speech.9 By effectively purging from merchants’ vocabularies the doubleplusungood surcharge and replacing it with the State‘s preferred term, discount, the constituency most impacted by the no-surcharge law has been deprived of its full rhetorical toolkit. See Cohen v. California, 403 U.S. 15, 26 (1971) (“[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.“). In turn, Florida‘s no-surcharge law deprives the marketplace of ideas of the full range of public sentiment.
Moreover, its extraordinary breadth suggests the no-surcharge law is more than a mere regulation of commercial speech. A law enacted for the sole purpose of forbidding a price difference to be labelled a surcharge, while allowing the
Viewpoint-based restrictions on speech are among governments’ most insidious methods of eliminating unwelcome opinion. As such, they warrant the greatest level of First Amendment protection. Ceding to any government the power to police expression on the basis of its message poses the most obvious threat to Americans’ most fundamental liberties: the freedom of speech and the freedom of conscience. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). The exacting standard of strict scrutiny stands as sentinel against the diminution of that liberty. Appropriately tailored regulations of commercial speech—such as those imposing limits on lawyers’ ability to make in-person solicitations or advertise using direct mailings after a personal injury has occurred, see Fla. Bar v. Went For It, Inc., 515 U.S. 618 (1995)—will necessarily target specific content and speakers. See Wollschlaeger, 797 F.3d at 894-96. But merely wrapping a law in the cloak of “commercial speech” does not immunize it from the highest form of scrutiny due government attempts to discriminate on the basis of viewpoint.
The Sixth Circuit faced a similar “hybrid” law “that implicates commercial and political speech” in BellSouth Telecomm., Inc. v. Farris, 542 F.3d 499 (6th Cir. 2008). In that case, Kentucky had passed a law requiring that telecom providers collect a tax from their customers while forbidding the providers from directly collecting the tax and from communicating to consumers any additional charges as a “tax.” See id. at 501 (citing
We find the Sixth Circuit‘s approach in Farris a prudent one. We will therefore analyze Florida‘s no-surcharge law as if it
B.
Turning to the commercial-speech analysis, we make short shrift of Florida‘s no-surcharge law. The constitutionality of regulations on commercial speech is assessed under the four-part Central Hudson test, which asks the following questions. First, does the challenged law regulate speech that is “neither misleading nor related to unlawful activity“? Second, does the government have a “substantial interest” at stake? Third, does the law “directly advance” the government‘s interest? Fourth, would “a more limited restriction” be insufficient for that interest to “be served as well“? Cent. Hudson, 447 U.S. at 564. If a law can go four for four, it passes constitutional muster. If not, the challenged law unconstitutionally hampers speech.
Florida‘s no-surcharge law founders at every step of this inquiry. To start, we reject the Attorney General‘s notion that the no-surcharge law circumvents the commercial-speech inquiry altogether because it restricts speech as part of addressing an “illegal course of conduct.” Reasoning that the no-surcharge law “at minimum regulates some conduct,” it therefore outlaws speech only as “part of an integrated course of conduct” and the targeted speech did not need to “be prohibited by some independent law.” We reject any notion that merely because some modicum of economic conduct is implicated therefore a law cannot also unconstitutionally restrict speech. The First Amendment is not so easily circumvented. And, in any event, the no-surcharge law does not sweep up only speech that is incidental and necessary to the enforcement of another important state interest; speech is the only behavior being targeted. Cf. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (“But [speech] used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from state control“).
Nor is the no-surcharge a regulation of misleading speech. Calling the additional fee paid by a credit-card user a surcharge rather than a discount is no more misleading than is calling the temperature warmer in Savannah rather than colder in Escanaba. Florida‘s no-surcharge law thus does not target false or misleading speech. Because, as discussed above, the no-surcharge law regulates speech and not conduct, we continue to the second Central Hudson prong.
We struggle to identify a plausible governmental interest that would be served by the no-surcharge law, much less one that could be considered substantial. The candidate advanced by the Attorney General—a generalized interest in “consumer protection“—is formulated too abstractly to provide a meaningful benchmark for weighing the no-surcharge law against the State‘s purported interest. The three potential interests hypothesized by the District Court, though more concrete, likewise prove unavailing. First, the law may serve as an antifraud measure against bait-and-switch tactics, whereby a merchant advertises a lower price only to later charge a higher price. Second and relatedly, the law may be viewed as a prophylactic measure that protects consumers against “unpleasant surprises” that do not rise to the level of fraud. Finally, the law may be seen as leveling the playing field among merchants, some of whom may oth-
We conclude, as did the District Court, that “[n]one of these assertions is compelling” and go a step further to confirm the court‘s suspicion that they are “not even . . . persuasive.” Our conclusion that the foundation provided by such interests is nothing more than shifting sand is underscored by the fact that Florida has exempted certain state agencies from its no-surcharge law—allowing them to charge “convenience fees” for the privilege of using a credit card,
Considering the third and fourth Central Hudson prongs together, the no-surcharge law neither directly advances any potentially substantial state interest nor is it narrowly tailored. Any of the asserted interests—preventing bait-and-switch tactics, providing advance notice to customers, and levelling the playing field among merchants—would be better served by direct and focused regulation of actual pricing behavior. Florida could simply prohibit dual-pricing altogether. Or it could cap the difference in price that can be charged to customers paying with cash and those using credit cards, just as it has done for the use of credit cards at state agencies and for the use of a “money transmitter service.”11 See
Finally, we conclude by highlighting the extraordinary nature of Florida‘s no-surcharge law and the modest scope of our holding. We rule today only on a law that, though it purports to regulate commercial behavior, has the sole effect of banning merchants from uttering the word surcharge, criminalizing speech that is neither false nor misleading. The First Amendment does not return us to the heyday of Lochner v. New York, 198 U.S. 45 (1905). Laws that target real-world commercial activity need not fear First Amendment scrutiny. Such run-of-the-mill economic regulations will continue to be assessed under rational-basis review.
The First Amendment does not, however, allow the Government to directly restrict speech in an attempt to control conduct in response to that speech. Paternalistic efforts at social engineering are anathema to constitutional first principles. As the District Court correctly observed, a criminal prohibition on credit-card surcharges that nevertheless allows for cash discounts “is a matter of semantics, not economics.” Though our Constitution does not dictate an economic orthodoxy—Spencerian or otherwise, see Lochner, 198 U.S. at 75 (Holmes, J., dissenting)—it does care a great deal about “semantics.” A free marketplace of ideas abhors command and control, and will accommodate regulatory needs of only the highest order. By holding out discounts as more equal than surcharges, Florida‘s no-surcharge law overreaches to police speech well beyond the State‘s constitutionally prescribed bailiwick. For that reason, we conclude that
V.
Accordingly, we REVERSE the District Court‘s grant of summary judgment to the Attorney General and REMAND for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
ED CARNES, Chief Judge, dissenting:
The statute at issue in this case bars surcharges for using credit cards but permits discounts for using other methods of payment. See
The statutory definition specifies that a surcharge is “any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment.” Id. (emphasis added). That is a narrower definition than the ordinary meaning of “surcharge,” which is simply “[a]n additional tax, charge, or cost.” Black‘s Law Dictionary 1670 (10th ed.2014). By defining “surcharge” narrowly—using the limiting words “imposed at the time of a sale“—the statute distinguishes forbidden surcharges from permissible discounts based on when the business informs the customer of the actual price terms of its offer to the customer. By disregarding the statute‘s limiting definition of “surcharge,” the majority opinion creates constitutional infirmity where none would otherwise exist.
An example illustrates the distinction drawn by the statutory definition. A store
I.
The majority opinion rejects the statute‘s narrow definition of the term “surcharge” in favor of what it perceives to be the more colloquial meaning of the word. It is wrong to do so. We are to use the “common and ordinary meaning” of a statutory term only if there is no “statutory or regulatory definition” of it. Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1193 (11th Cir.2010); see W. Union Tel. Co. ν. Lenroot, 323 U.S. 490, 502 (1945) (“[S]tatutory definitions of terms used therein prevail over colloquial meanings.“). Where there is a statutory definition, we must follow the well-established and common sense principle that “statutory definitions control the meaning of a statute‘s terms.” Stansell v. Revolutionary Armed Forces of Colom., 704 F.3d 910, 915 (11th Cir.2013); accord Burgess v. United States, 553 U.S. 124, 129 (2008) (“Statutory definitions control the meaning of statutory words . . . in the usual case.“) (quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)). After all, the legislature has the right to define the terms it uses, which is why the statutory definition of a statutory term controls statutory construction of the term.
Instead of following that cardinal principle, the majority opinion uses what are—by its own admission—tautological definitions of “surcharge” and “discount,” defining a surcharge as “simply a ‘negative’ discount” and a discount as “a ‘negative’ surcharge.” Maj. Op. at 1239. The result is a rewritten Florida Statute
Because the statute defines “surcharge,” we are bound to construe the statute using
II.
We should use the statutory definition of “surcharge” to save Florida Statute
The opinion‘s first reason for rejecting the statutory definition is that it would reduce the statute “into nothingness.” Id. at 1244. How? Because, the majority opinion says, interpreting the statute as “a prohibition on bait-and-switch schemes” would allow merchants to avoid liability by “announc[ing] to potential customers the price difference in advance of any sale.” Id. Well hello. That is precisely the point of the statutory definition: to limit the conduct forbidden by the statute so that merchants can comply with the statute. Why is it bad to interpret a statute in a way that allows people to conform their conduct to its requirements, that carries out the statutory purpose, and that saves
The majority opinion‘s second reason for refusing to interpret the statute using the statutory definition is its belief that the Florida Attorney General has disavowed this reading of the statute in her brief, at oral argument, and in the cease-and-desist letters sent to the plaintiffs. See id. at 1244. The majority opinion is wrong on each count.
As to the cease-and-desist letters, while they might be relevant to an as-applied challenge, the plaintiffs did not challenge the statute as applied.3 Instead, they brought a facial challenge seeking to enjoin any enforcement of the statute against anyone in any and all circumstances. And their facial challenge claims that the statute violates the right to free speech but does not claim that it is overbroad.4 Where plaintiffs bring a free-speech facial challenge that is not based on overbreadth, the only way they can succeed is by demonstrating that “no set of circumstances exist” where the law could be validly applied. See United States v. Stevens, 559 U.S. 460, 472-73 (2010) (quotation marks omit-
ted). That the Attorney General‘s cease-and-desist letters set out some facts that she believes would violate Florida Statute
As to the Florida Attorney General‘s position in her brief, at oral argument, or generally, there are two things about that. The first is that the majority opinion is mistaken in its assumption that the Attorney General disavowed in her brief and at oral argument “a narrow reading of the statute” that would limit its proscriptions to surcharges announced and applied only at the time of sale. Maj. Op. at 1244. The Attorney General argued in favor of that narrow reading repeatedly throughout her brief. See, e.g., Appellee Br. at 5 (“Under the law, a retailer may, for example, price a loaf of bread at $1.00 and charge customers 95 cents if they pay in cash; but the retailer may not use a 95-cent label on the shelf and charge credit card users a dollar at the register.“); id. at 1242 (“The Statute prohibits merchants from imposing a
As to oral argument, the Assistant Attorney General argued that we should follow the statutory definition: “[I]f the sweater has a price tag of $100.00, you go to the register and it‘s $103.00, that is an extra charge imposed at the time of the transaction. That is a surcharge.” See Oral Argument Recording at 10:22-10:32, Dana‘s R.R. Supply v. Att‘y Gen., State of Fla., No. 14–14426 (11th Cir. June 11, 2015). If the majority opinion sees all of that as a “disavowal” of the statutory definition, which turns on what happens at the time of sale, what would an avowal of it look like?
Even if the Attorney General had somehow conceded that the statutorily defined meaning of the key statutory term “surcharge” ought to be ignored, the concession would not bind us. The interpretation of a statute is a question of law, see United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999), and we are not obliged to accept a party‘s concession on such questions, see Roberts v. Galen of Va., Inc., 525 U.S. 249, 253 (1999) (“[T]he concession of a point on appeal by respondent is by no means dispositive of a legal issue. . . .“); United States v. Lee, 586 F.3d 859, 866 (11th Cir.2009) (refusing to accept the government‘s concession as to the interpretation of a statutory term). The interpretation that the Attorney General has adopted in this case or any other case does not control us because it is our duty, not hers, to interpret and apply statutory language in cases that come before us. See Thompson v. Kentucky, 209 U.S. 340, 346 (1908) (“[I]t is the province of the courts to interpret the laws of the state. . . .“); Harris v. Garner, 216 F.3d 970, 976 (11th Cir.2000) (“[T]he role of the judicial branch is to apply statutory language. . . .“). We do not cede our authority to interpret statutes to the parties or their attorneys.
The majority opinion‘s final reason for rejecting the statutory definition of “surcharge” is that it will result in the statute “cover[ing] only conduct already covered by the Florida Deceptive and Unfair Trade Practices Act” (FDUTPA). Maj. Op. at 1244 (citing
To begin with, there is no authority for the proposition that a saving construction of a statute should be rejected simply because it would create an overlap with another statute. “The Supreme Court has noted that statutes may ‘overlap’ or enjoy a ‘partial redundancy,’ and yet be ‘fully capable of coexisting.‘” United States v. Zheng, 306 F.3d 1080, 1085 (11th Cir.2002)
Not only that, but the majority opinion is simply wrong about the statutory definition interpretation reducing Florida Statute
We must adopt a saving interpretation so long as it is “fairly possible,” even if it is not “the most natural” reading of the statutory language. Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 2594 (2012) (quotation marks omitted). Here the statutory definition interpretation is not only a “fairly possible” interpretation, it is also the most natural one.
III.
The statute‘s narrow definition of surcharge makes resolving the plaintiffs’ two facial challenges relatively easy. Here‘s why.
The plaintiffs’ first claim is that Florida Statute
The Second Circuit recently applied that well-settled principle to uphold a New York statute banning all credit card surcharges in the face of a free-speech challenge.5 See Expressions Hair Design v. Schneiderman, 803 F.3d 94, 106 (2d Cir. 2015). The court began with the basic premise that “prices, although necessarily communicated through language, do not rank as ‘speech’ within the meaning of the First Amendment.” Id. So “prohibiting certain relationships between prices also does not implicate the First Amendment.” Id. at 106-07. As the court noted, the “central flaw” in the plaintiffs’ position in that case was their “bewildering persistence in equating the actual imposition of a credit-card surcharge . . . with the words that speakers of English have chosen to describe that pricing scheme.” Id. at 107. Under § 518, merchants cannot charge customers additional fees for using credit cards. Under Florida Statute
The plaintiffs’ second claim is that Florida Statute
The statute‘s narrow definition of “surcharge” eliminates both vagueness concerns. The key vagueness-busting words are “at the time of a sale or lease transaction.”
IV.
The majority opinion describes the Court‘s role in this case as that of a “judicial Theseus” cast “into the depths of a lexical labyrinth.” Maj. Op. at 1243. The mythological Theseus followed the path laid out by Ariadne‘s thread, made his way out of Minos’ labyrinth, and rescued the young Athenians held by Minos. Here, the judicial Theseus should have done the same by following the path laid out by the statutory definition of “surcharge,” making its way out of the supposed lexical labyrinth, and rescuing the statute. Instead, we have a Greek tragedy consisting of a state statute being struck down by a federal court for no good reason.
Notes
(1) A seller or lessor in a sales or lease transaction may not impose a surcharge on the buyer or lessee for electing to use a credit card in lieu of payment by cash, check, or similar means, if the seller or lessor accepts payment by credit card. A surcharge is any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment. Charges imposed pursuant to approved state or federal tariffs are not considered to be a surcharge, and charges made under such tariffs are exempt from this section. A convenience fee imposed upon a student or family paying tuition, fees, or other student account charges by credit card to a William L. Boyd, IV, Florida resident access grant eligible institution, as defined in s.1009.89, is not considered to be a surcharge and is exempt from this section if the amount of the convenience fee does not exceed the total cost charged by the credit card company to the institution. The term “credit card” includes those cards for which unpaid balances are payable on demand. This section does not apply to the offering of a discount for the purpose of inducing payment by cash, check, or other means not involving the use of a credit card, if the discount is offered to all prospective customers.(2) A person who violates the provisions of subsection (1) is guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s.775.083.
Not so. The dissent‘s position is essentially that Florida‘s no-surcharge law can be saved by grafting onto the definition of surcharge a notice requirement that would enable a merchant to “speak in any way he chooses so long as he does not ambush the credit-card-using customer with a higher price at the register.” Id. at 1252. But the dissent puts far too much stock in the “at the time of sale” language. Read in full, the statutory definition provides: “A surcharge is any additional amount imposed at the time of a sale or lease transaction by the seller or lessor that increases the charge to the buyer or lessee for the privilege of using a credit card to make payment.”