Joshua Cooper, 31, owner and operator of Nationwide Publishing Group, was arrested Wednesday for unlicensed telemarketing in Boca Raton, Florida. While he is facing a third degree felony for this offense, I think the charges may prove to be completely bogus.
(Photo credit: golfnstyle.com)
Police also arrested: Philip Barone, 51; Kirstin Perri Bryan, 21; Emily Victoria Combe, 21; Matthew Dunn, 36; Kelly Scott Hettema, 21; Bennett Charles Kulback, 28; William Emil Lepido, 43; David Madrid, 22; Edwin Martoral, 42; Kristin Lynn Napolitano, 24; Joseph Anthony Pietragallo, 26; Daniel Rattelade, 27; and Matthew Carlisle Sigman, 32.
So far there have been no reports as to whether or not Joshua Cooper or the others arrested have been released on bond.
On the surface, this case makes perfect sense. It goes something like this:
Nationwide Publishing Group and Joshua Cooper hire a bunch of people, no one has a telemarketing license, including Cooper or Nationwide Publishing, and together they try to sell advertising in Golf’n Style Magazine to purchasers over the phone. Unlicensed telemarketing = third degree felony. Everyone gets arrested, case closed.
As a criminal defense attorney, I can tell you things are never that simple. In fact, I think Josh Cooper and the others may have three winnable defenses against charges of unlicensed telemarketing. Of course, I say this with the caveat that much more information about the facts of this case must be known before any concrete conclusions can be made or a realistic legal analysis can be completed.
First, as any good criminal lawyer will tell you, knowing the applicable law is fundamental. According to Florida Statute 501.623, yes, it is a third degree felony to “solicit purchasers on behalf of a commercial telephone seller ” without a license. Additionally, no commercial telephone seller may “employ or be affiliated with a salesperson who is soliciting purchasers and who is not currently licensed.” A violation of this employment statute is also a third degree felony.
HOWEVER, the Florida Telemarketing Act is anything but black and white. In fact, there are 28 categories of exceptions to the above listed prohibitions. Depending on the specific facts present in this case, Nationwide Publishing, Joshua Cooper, and the other people arrested may fall within an exception to the telemarketing license requirement.
It is clear that Josh Cooper, Nationwide Publishing Group, and the others arrested for unlicensed telemarketing were likely conducting business-to-business solicitations. Therefore, if Nationwide Publishing “has been operating continuously for at least 3 years under the same business name and has at least 50 percent of its dollar volume consisting of repeat sales to existing businesses,” then it is exempt from the licensing requirement.
If it is exempt from the telemarketing license requirement, a prosecution for violating Florida’s Telemarketing Act must fail.
While unlicensed telemarketers are required to file a notarized affidavit when they qualify for this exception, pursuant to Florida Statute 501.608(b), failure to do so should not render the business-to-business exception null or void in regards to criminal liability. However, the same may not be true for civil liability. Remember, there is a big difference between criminal liability, where one’s freedom is at stake, and civil liability where one’s money is at stake.
To understand the second defense to unlicensed telemarketing applicable here, we must first understand the sales process used by the Nationwide Publishing Group. In my experience, when a purchaser buys advertising in print media, the first conversation with the publication is very general in nature and likely is limited to facts about the publication’s circulation, a description of the reader demographics, prices, and deadlines for placement.
In my experience, no final agreement about the advertisement details such as size of the ad, frequency of its publication, or price is set at this point. In fact, these deals often involve a tremendous amount of haggling between the client company and the publisher.
I think it is also important to emphasize that most of Nationwide’s clients were likely businesses and not individual people. Just think about this for a second… what on Earth would an individual person be advertising in their personal capacity in a magazine? Golf’n Style Magazine is not a high school yearbook or a gala dinner publication for a local charity (which would both have charitable advertisements in the back by individual donors).
In every case of print advertising I have ever heard of, a sales person or account manager visits the customer’s place of business with a media kit and examples of past publications. At this point, the salesperson makes a thorough sales pitch about how great the publication is and how effective advertising with them will be.
Discussions are also had about contract details and if the sales person is lucky, an agreement is reached and details about the advertisement’s size, price, and duration (how many issues will the advertisement appear in) are negotiated and reduced to a written contract.
For customers that aren’t convinced so easily, the salesperson may need to make a follow-up visit to close the deal.
However, once a deal is closed, an appointment is then made with the publisher’s art department and an actual advertisement is designed or an existing one is modified for publication in the specific periodical. Once the final version of the actual advertisement is approved by the client company, the advertisement is then sent for layout and ultimate publication.
My point in discussing this process is to emphasize that selling advertising for print media takes more than a phone call. First of all, the customers are sophisticated in the sense that they are business owners or business managers… as opposed to individuals. Second, the product requires a lot of selling and follow through on the part of the publisher. Unlike a subscription to a magazine, there is much more to the equation than taking a credit card number and filling out a form on a computer screen so that Suzy-homemaker can get a new subscription to “Home and Garden.”
These facts are EXTREMELY important to me as a criminal lawyer because Florida Statute 501.604(3) created a licensing exception when a seller does not make his/her “major sales presentation” over the telephone. The statute reads as follows:
“A person who does not make the major sales presentation during the telephone solicitation and who does not intend to, and does not actually, complete or obtain provisional acceptance of a sale during the telephone solicitation, but who makes the major sales presentation and completes the sale at a later face-to-face meeting between the seller and the prospective purchaser in accordance with the home solicitation provisions in this chapter. However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose it is to go to the prospective purchaser to collect the payment or deliver any item purchased, this exemption does not apply.”
Clearly, this exception is very fact specific. Depending on the circumstances present, Joshua Cooper’s criminal defense lawyer may be able to defeat the prosecution’s case on this point alone. In all likelihood, most of Cooper’s and Nationwide Publication Group’s solicitation fell under this exception. However, in the few instances where customers agreed to purchase advertising on the spot and a deal was made, there may be liability.
Either way, much more investigation is needed.
As was mentioned above, it is illegal for an unlicensed telemarketer to engage in telephone solicitation without a license. According to Florida Statute 501.603(11), the term “solicitation” means: “to initiate contact with a purchaser for the purpose of attempting to sell consumer goods or services, where such purchaser has expressed no previous interest in purchasing, investing in, or obtaining information regarding the property, goods, or services attempted to be sold.”
In the case of Joshua Cooper, Nationwide Publishing, and the other people arrested, the product allegedly solicited over the phone was advertising in Golf’n Style Magazine.
According to Florida Statute 501.603(3), “consumer goods and services” are defined as:
“any real property or any tangible or intangible personal property which is normally used for personal, family, or household purposes or any property of any nature which is solicited for the purpose of providing a profit or investment opportunity, including, without limitation, any such property intended to be attached to or installed in any real property, without regard to whether it is so attached or installed, as well as timeshare estates and licenses, and any services related to such property.”
Since the advertising sold by Josh Cooper and Nationwide Publishing was a product used for commercial or business purposes and not for “personal, family or household purposes,” the licensing statute does not apply. Even if there are a couple bizarre exceptions where a person, family or household did purchase advertising in Golf’n Style Magazine, that was clearly not what the advertising was “normally” used for.
It is also worth noting that advertising is hardly a form of “property.”
Since the product at issue does not qualify as a “consumer good or service” the statutes that require licensing are inapplicable. If the Florida Legislature intended the Telemarketing Act to encompass commercial and business products, such as advertising, it would have written such intentions into the statute.
Neither the courts, the police, nor any other party has the right to expand upon the laws enacted by the Legislature.
Again, I want to emphasize that much more information is needed before any concrete conclusions can be made.
First, Joshua Cooper and the others would serve themselves well by immediately hiring a knowledgeable criminal defense attorney. Time should be spent hiring someone with experience and who has the brains to understand the statutory implications of this case.
Knowing the law and how to craft a winnable defense is key.
If I was the defense lawyer hired to represent those arrested, especially Joshua Cooper, I would begin with a thorough case analysis to obtain an understanding of Nationwide Publishing’s operations to determine where any criminal liability exists, if at all.
From there, the case facts must be compared to the applicable Florida Statutes to see what defenses apply.
Based on the information made available in the news, my instinct tells me this case is anything but black and white. In fact, I suspect that it may ultimately come down to an unlawful arrest by police. This would not surprise me since police officers are notorious for only reading those parts of a statute that support their case, as opposed to all parts that may be detrimental.
If it is determined that the police made an unlawful arrest, Joshua Cooper and the others should absolutely consider suing the police department for unlawful arrest. Police need to know that they have to get it right before they start slapping handcuffs on people.
Whatever the case may be, I hope justice is served for all those affected.