Thomas (Fred Phillip) ROUSH, Petitioner, v. STATE of Florida, Respondent.
No. 57241
Supreme Court of Florida
April 8, 1982
413 So. 2d 15
Jim Smith, Atty. Gen. and David P. Gauldin, Asst. Atty. Gen., Tallahassee, and Edward A. Miller, Chief Asst. State Atty. and William L. Wright, Asst. State Atty., Fourteenth Judicial Circuit, Panama City, for respondent.
PER CURIAM.
This cause is before the Court on petition for certiorari to review two interlocutory orders of the Circuit Court of the Fourteenth Judicial Circuit, Bay County. In issuing the orders, the court passed upon the constitutionality of a state statute. Therefore, a final judgment in the cause, under the jurisdictional provisions in effect at the time the notice of certiorari was filed, would have been appealable to this Court. We have jurisdiction,
Subsequently, on Friday, June 22, 1979, the state attorney, pursuant to
At the hearing Roush appeared with counsel and moved for a continuance, arguing that he had not been allowed adequate time to prepare a response to the state attorney‘s petition. The court denied the motion and proceeded with the hearing. The state then presented a number of witnesses who testified about the seemingly fraudulent activities of Roush‘s business. Among those testifying were several former customers who believed that they had paid for unnecessary and unsatisfactory transmission repairs under conditions similar to those discovered during the undercover operation. Roush offered no evidence. At the conclusion of the hearing, the court enjoined Roush from operating his transmission business until further order and ordered the seizure of all real and personal property used in the business.
By motion for rehearing, Roush raised the issues of the constitutionality of
At the outset, it should be noted that the instant case presents this Court with no problem of statutory construction. To buttress this conclusion, several observations are in order relative to the scope of the Florida Anti-Fencing Act,
Doubtless, some would argue that the statute‘s short title, “The Florida Anti-Fencing Act,” implies some intent on the part of the legislature to limit the scope of the act to fencing activities, thus removing Roush‘s alleged consumer fraud from the act‘s coverage. As this Court stated in King Kole, Inc. v. Bryant, 178 So. 2d 2, 4 (Fla. 1965), however, a “title need not be an index to the contents. It is not necessary that it delineate in detail the substance of the statute.” Further, in the presence of language as unequivocal as that embodied in the act, “[w]here the words selected by the Legislature are clear and unambiguous, ... judicial interpretation is not appropriate to displace the expressed intent.” Herediav. Allstate Insurance Co., 358 So. 2d 1353, 1355 (Fla. 1978) (emphasis supplied).
An examination of the Florida Anti-Fencing Act clearly reveals that, despite its narrow title, the act encompasses a range of activities far broader than trafficking in stolen property. One such activity embraced by the statute is theft.
(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent:
(a) To deprive the other person of a right to the property or a benefit therefrom.
(b) To appropriate the property to his own use or to the use of any person not entitled thereto.
Since the language pertaining to theft is of such a clear and concise nature, this Court is guided by the rule that “unambiguous statutory language must be accorded its plain meaning.” Carson v. Miller, 370 So. 2d 10, 11 (Fla. 1979). Applying this rule to the facts of the instant case, it is clear that the alleged fraudulent and deceptive trade practices conducted by Roush‘s business constituted theft pursuant to the act and rendered Roush subject to the sanctions authorized by the act.
Unlike many criminal statutes, the Florida Anti-Fencing Act provides civil remedies, as well as criminal penalties, for violations of the act.
While any question relative to the applicability of the act here is easily resolved, a more difficult question is posed by the contention that enforcement of the civil
Roush alleges that the speedy fashion in which the circuit court adjudicated his case deprived him of reasonable notice and the time to mount an adequate defense to the charges facing him, deprivations tantamount to infringements on his procedural due process guarantees. As noted, however, the court‘s timing of its hearing was in response to the directive contained in
Having disposed of Roush‘s procedural argument, we turn to the issue of whether the civil remedies imposed by the court in any way violated his substantive due process rights. As noted,
Nor can it be said that the sanctions imposed by the court were unreasonable or unconstitutional. Although the constitutionality of the civil remedies section of the act is one of first impression for this Court, federal courts have determined that the nearly identical civil remedies provision contained in the Organized Crime Control Act of 1970 (
Section 1964 provides for a civil action in which only equitable relief can be granted. The relief authorized by that section is remedial not punitive and is of a type traditionally granted by courts of equity. It is the same kind of equitable relief that federal courts have been granting for generations in civil actions under Section 4 of the Sherman Act and Section 15 of the Clayton Act, 15 U.S.C. §§ 4 and 25.
Id. at 1357. Further, the court found that Congress had the power to provide both criminal and civil remedies for violations of the statute and stated:
It has thus been settled ... that acts which may be prohibited by Congress may be made the subject of both criminal
and civil proceedings, and the prosecuting arm of the government may be authorized to elect whether to bring a civil or criminal action, or both. A civil proceeding to enjoin those acts is not rendered criminal in character by the fact that the acts also are punishable as crimes.
Id. Additionally, the court made clear that equitable principles govern the granting of relief pursuant to section 1964 and stated:
Whether equitable relief is appropriate depends, as it does in other cases in equity, on whether a preponderance of the evidence shows a likelihood that the defendants will commit wrongful acts in the future, a likelihood which is frequently established by inferences drawn from past conduct.
Id. at 1358. Accordingly, Cappetto upheld the lower court‘s injunction restraining the defendants from continuing their alleged gambling activities, even though they had not been convicted of a criminal offense.
Cappetto‘s interpretation of the civil remedies section of the federal act was extended in Farmers Bank v. Bell Mortgage Corp., 452 F. Supp. 1278 (D. Del. 1978). In Farmers Bank the federal district court expressly rejected the argument that, absent conviction of a violation of the act, a defendant cannot be subject to the civil remedies of the act. Instead, the court held that the civil remedies section of the act “does not condition that [civil] cause of action in any way upon a previous conviction under the criminal provisions of the Statute.” Id. at 1280.
These federal cases represent a reasoned and sound analysis of the issue. In line with these cases, we hold that it was indeed within the power of our legislature to provide civil remedies for violations of the Florida Anti-Fencing Act and that the imposition of those remedies is in no way dependent upon an adjudication of guilt. Further, we find that the civil sanctions imposed by the circuit court, although stringent, were justified by the act, were responsive to the remedial goals of the act, and in no way violated Roush‘s constitutional rights. By seizing Roush‘s property and temporarily suspending his business operations, the circuit court effectively inhibited future fraudulent conduct and protected the consuming public from further harm.
Of special significance in this case is the fact that the actions taken by the circuit court were of a temporary nature, designed to prevent continuing harm. The record offers no evidence that the court took steps to impose forfeiture, the strictest civil remedy provided by the act, and we have no occasion to consider the constitutional ramifications had the court chosen to order forfeiture.
We find nothing unconstitutional about
It is so ordered.
SUNDBERG, C.J., and ADKINS, ALDERMAN and McDONALD, JJ., concur.
BOYD, J., dissents with an opinion.
OVERTON, Justice, dissenting:
I do not find the legislature had any intent to have this criminal Anti-Fencing Act construed to provide civil consumer protection remedies.
BOYD, Justice, dissenting.
I dissent for several reasons. The first ground, which I discuss first because we
The face of the statute demonstrates an ambiguity requiring judicial construction. While the literal language of the statute is susceptible of application to all forms of the new broadly defined crime of theft, the act of which
Second, even if the legislature intended for the statute to be applied in cases such as this, the Court errs further in failing to see the unconstitutionality of the legislative scheme. Petitioner‘s business was closed and his property seized without proof of wrongdoing on his part. He has suffered deprivation of property without due process of law.
The statute in question declares certain conduct to be against public policy and prohibits such conduct. The statute seeks to deter such conduct by punishing violations. The statute therefore is penal in nature, even though the penalties provided for are denominated “civil remedies.” A penal sanction is no less penal simply because we call it a “civil” rather than a “criminal” penalty.
The Court observes and relies upon the fact that petitioner was given an opportunity to prove his innocence. When the state seeks to close a business and seize business property, it should be required to prove that the defendant violated the law. Under our constitution, the process of imposing penalties on offenders is accusatorial and not inquisitorial. The accused is not required to prove anything but is presumed innocent. The Court‘s shifting of the normal constitutionally-based burden of proof is sought to be justified on the basis of the distinction between “criminal” and “civil” penalties. In light of the harsh penalties authorized by the statute and imposed upon the petitioner in this case, I find the distinction artificial.
The concept of due process, the presumption of innocence, the requirement that only those shown to have violated published laws may be subjected to penal sanctions — these are principles that the founders of this Republic found so important that they insisted on their being written into the basic charter as the Bill of Rights. They were intended as protections against arbitrary and oppressive governmental action. The framers of the Bill of Rights knew from history and from personal experience that without such protections, the rights of individuals are commonly trampled upon by kings and governments as they go about the business of promulgating and enforcing “public policy.” The history of our Republic shows that the wisdom of the founding fathers has been expanded upon through the recognition that the states, and not just the national government, are also prohibited from the arbitrary infliction of punishments and deprivations.
The Court‘s construction of the statute may have far-reaching effects; small businesses circumstantially linked to fraud on customers are not the only concerns that may be affected. A private firm with millions of dollars worth of assets could have its property confiscated by the state because one dishonest employee has cheated some customers even without the knowledge of the managers or owners. I do not think the legislature intended such results, but if it did then the statute is clearly unconstitutional.