Joshua Cooper was arrested last week for unlicensed telemarketing in Boca Raton, Florida. His arrest, while very controversial, has sent ripples through the telemarketing industry here in Florida. Many telemarketing companies and their employees are now worried that they too may be arrested and subjected to criminal prosecution for acts that are thought to be perfectly legal.
While the Florida Telemarketing Act makes unlicensed telemarketing illegal, there are a number of exceptions to this rule and in some cases, I think they Act may not even apply at all.
Given this reality and the fact that licensing enforcement is on the rise, it would be a good idea for telemarketing companies throughout Florida to obtain legal counsel to determine if they are compliant with all licensing statutes.
This blog entry will be the first of a multi-part series intended to be a general discussion of a telemarketer’s potential for criminal liability under the Florida Telemarketing Act. The series will also address some of the inherent limitations of the Act and some of the licensing exceptions that may apply.
As a criminal defense lawyer, I am very intrigued by these cases because the Florida Telemarketing Act is easily misinterpreted by over-zealous law enforcement. Remember, law enforcement exists to make arrests and build cases. In a budgetary environment like the present one, it is no surprise that the State of Florida is increasing its licensing enforcement practices, since these prosecutions are routinely accompanied by civil penalties which can include heavy fines.
However, before I delve any further, I want to advise every person who reads this blog to do one thing: Call me for a consultation before any conclusions are made.
Do not rely on this blog alone. Contact a lawyer first (even if it is not me).
Before I can give legal advice to any person, I must first understand the factual details present in that person’s case. This is especially so when it comes to potential violations of the Florida Telemarketing Act. The Act is very lengthy and any legal analysis must be made in consideration of every available detail.
For that reason, I am offering a free initial consultation to any person with a question about the Florida Telemarketing Act or who fears criminal prosecution for unlicensed telemarketing in Florida. This blog is for informational purposes only and is not a substitute for the thorough consultation that is needed before I can offer legal advice to a specific person or company.
Any analysis of criminal liability for unlicensed telemarketing must begin with a review of the criminal penalties section of the Florida Telemarketing Act. For purposes of this discussion, we will be limiting our attention to only three subsections, they are: Florida Statutes 501.623(1), (2), and (3).
Looking at these subsections, we see there are three distinct categories of illegal conduct.
First, Florida Statute 501.623(1) makes it illegal to “solicit” purchasers on behalf of a commercial telephone seller without a license. Second, Florida Statute 501.623(2) makes it illegal for a commercial telephone seller to employ or be affiliated with a salesperson who is “soliciting” purchasers without a license. Third, Florida Statute 501.623(3), makes it illegal for any commercial telephone seller or salesperson to “solicit” without a license.
When lay people analyze these statutes, the first thing they look at are the exceptions to these rules. However, this is an error. Before one can analyze the applicability or non-applicability of the exceptions, a much more fundamental analysis must be had.
Namely, does the conduct in question qualify as “solicitation”?
Looking at the language of the above statutes, it is clear that the act of unlicensed “solicitation” forms the essence of these criminal prohibitions. Special attention and emphasis must be given to the words “solicit” and “solicitation.”
If the conduct in question does NOT fall within the meaning of “solicitation,” as is used in these statutes, then the criminal prohibitions of the Telemarketing Act do not apply.
If the prohibitions do not apply, then the analysis is terminated. There is no need to consider exceptions to these rules because the Act is irrelevant to the conduct in question. Before one may consider the applicability or non-applicability of exceptions to the licensing statute, one must first conclude that the Telemarketing Act regulates the conduct in question. If that is not the case, then the existence or non-existence of applicable exceptions is irrelevant.
To illustrate this point using a simplistic example, lets assume Florida Statutes made it illegal to grow oranges without a license. Lets further assume it made an exception to the licensing requirement for those who grow Valencia oranges.
Therefore, if you were to grow Valencia oranges, your conduct would clearly be regulated by the statute because you engage in the act of growing oranges. However, the fact that you grow Valencia oranges means that your conduct falls within an exception to the rule. Therefore, even though you do the act which is regulated, you do not have to get a license.
However, if you grow apples instead of oranges, your conduct is simply not regulated by the statute at all. Just because you are a farmer and you grow fruit, does not mean you need a license. The licensing requirement only applies to farmers who grow oranges. Therefore, jumping to the exceptions to see if you qualify for an exemption is pointless. On a more fundamental level, these rules do not even apply to you.
The same reasoning applies to the Florida Telemarketing Act.
Put simply, if you were arrested for unlicensed telemarketing, but your conduct does not qualify as “solicitation,” then you may have been falsely arrested because your conduct is not regulated by Florida Statutes 501.623(1), (2), and (3).
Again, I must analyze the details of your specific situation before drawing any conclusions about your case
However, if you have been falsely arrested because police investigators failed to properly read the statute before arresting you, not only will you likely win your criminal case, but you may even be able to sue the police for civil damages. Again, more must be known about your specific case before any conclusions may be drawn.
False arrest is a cause of action for civil damages in the State of Florida.
In the next part of this series, I will address the meanings of the terms “solicit” and “solicitation.” Where do we find the meaning of these words? How do we know our definition is reliable? I will also discuss what types of conduct are clearly not included in the applicable definition. As a result, we will be able to determine what types of telemarketing conduct are not regulated by the Florida Telemarketing Statute.
So stay tuned… more to follow!