State v. FalkState v. Falk
Alan E. Weinstein, Miami Beach, for Appellee.
Before JORGENSON, LEVY, and GREEN, JJ.
PER CURIAM.
In October of 1996, attorney Steven Falk (“the defendant“) was charged by Information with unlawfully “solicit[ing] business relating to the representation of persons injured in a motor vehicle accident for the purpose of filing a motor vehicle tort claim or a claim for personal injury protection benefits... in violation of
The United States Supreme Court has made it clear that the term “solicitation” encompasses both “in person” solicitation as well as various forms of advertising (which would include both writing letters and placing advertising in the general media). See Shapero v. Kentucky Bar Ass‘n, 486 U.S. 466, 475-76, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988).2 Furthermore, the United States Supreme Court has held that a State may completely prohibit “in person” solicitation by an attorney without running afoul of the First Amendment. See Ohralik v. Ohio State Bar Ass‘n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).
It is undisputed in this case that the activities sought to be prohibited, by the statutory language in question, involve “commercial” speech. Since the constitutionality of a statute limiting commercial speech must be examined through the implementation of an “as applied” test, it becomes imperative for the
Unfortunately, for both the trial court and this Court, the Information filed by the State in this case fails to specify, with particularity, what act or acts of the defendant are alleged to have violated the statute in question, thereby making it impossible for any court implementing an “as applied” test in connection with the State‘s efforts to apply the statutory language in question to the defendant herein.
Notwithstanding the foregoing, the trial court found that
II. EQUAL PROTECTION CHALLENGE
On the issue of whether
Under “rational basis” review, we must uphold a classification if it rationally serves an objective which the legislature might have had. See e.g. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (stating that where there were “plausible reasons” for the congressional statute, it was “constitutionally irrelevant whether this reasoning in fact underlay the legislative decision ...“); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 55 L.Ed. 369 (1911) (noting that “if any state of facts reasonably can be conceived that would sustain [the classification], the existence of that state of facts at the time that the law was enacted must be assumed.“).
The judicial deference which must be given to the legislature under “rational basis” review is illustrated by case law. For instance, in Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949), the Court upheld an ordinance on Equal Protection grounds which banned advertising on trucks, but exempted those trucks advertising their own products. The Court stated that the law was designed to promote public safety and that the city “may well have concluded” that those advertising their own products would not present the same traffic problem. Id. at 110, 69 S.Ct. 463. See also Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) (holding that a State ban on nonreturnable milk containers while permitting the use of other nonreturnable containers did not offend the Equal Protection clause, since the legislature might have determined that even a limited ban would promote greater use of environmentally desirable alternative containers); New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (sustaining against an Equal Protection challenge a grandfather clause which exempted two New Orleans vendors from a general ban on pushcart vending, where the city could have rationally concluded that the exempted vendors had become part of the charm of the French Quarter); LeBlanc v. State, 382 So.2d 299 (Fla.1980) (upholding a statute that treated domestic violence between spouses differently than that between other family members, since the statute applied equally to the members of the statutory class, and bore a reasonable relation to a legitimate State interest).
In the instant dispute, the legislature differentiates between those who engage in solicitation relating to a motor vehicle accident from all other personal injury solicitation. Such a distinction is rational under the Equal Protection clause. We note that
To summarize, we hold that
We further hold that the trial court was in error in granting the defendant‘s motion to dismiss predicated upon a finding that
Accordingly, the trial court‘s Order dismissing the case against the defendant on free speech grounds is reversed with directions to the trial court to allow the State to amend the Information to specify, with particularity, what act or acts of the defendant are alleged to have violated the statute in question. Thereafter, the defendant should be allowed to either renew or amend his motion to dismiss relating to the free speech argument.
Reversed and remanded with directions.