- 11th DCA says declares ban on credit card surcharges unconstitutional – Dana’s Railroad Supply v. Attorney General, State of Florida, Nov. 2015
Everyone has seen at least one gas station in the last year or so that offers a “cash discount” or clearly posts two prices for credit card and cash customers. Plaintiffs in this case challenged Fla. Stat. 501.0117(1)–(2), which made it a second-degree misdemeanor to apply a surcharge to customers electing to use a credit card for purchases. This law gave specific exemption to “the offering of a discount for the purpose of inducing payment by cash”. The 11th District Court of Appeal struck down the law citing that it was a direct violation of Free Speech in order to indirectly affect commercial behavior. For now, merchants remain free to impose surcharges for credit card purchases, however, a recent New York appeal case upheld a ban on credit card surcharges, so there is a possibility that this case may be reviewed again by the 11th DCA or Florida Supreme Court.
- Service of Process gets a boost from the Digital Age – Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., September 2014
Florida Process Servers and Attorneys will need to be a little more creative when attempting to find principles to serve civil process. The 2nd DCA reversed a default judgment after Plaintiffs failed to personally serve Defendants, instead using mail as a substitute service. In this case, service of process was attempted multiple times to the same address, however, Plaintiffs were in regular contact with the Defendants via text messaging and Plaintiffs had actual knowledge that Defendants were in California at the time. The 2nd DCA ruled that the Plaintiff’s ‘failure to use an “obvious and available” resource was fatal to [Plaintiff’s] resort to substituted service’
- 11th Circuit Rules on Scope of Digital Searches – United States v. Johnson, Dec. 2015
A Florida couple left their cellphone at retail store, an employee found the phone and contacted the couple to return it to them. Before the couple could retrieve their phone, the employee searched the digital contents, finding a vast amount of child pornography. After reviewing what she found with her husband, the employee called Law Enforcement and turned over the phone as evidence. Upon receipt of the phone, a law enforcement officer searched even deeper into the files and found even more child pornography than the employee and her husband had viewed. So the question brought forth in appeal was, did the officer exceed the scope of lawful government search? The 11th DCA concluded that the initial review of the files already seen by the employee and her husband did not exceed the scope of government search, but the further search beyond what was already discover did violate the scope of lawful government search. Note: This decision did not affect the sentence of the owners of the cellphone, the files initially viewed were admissible and certainly provided more than enough evidence for a conviction. Defendants’ challenge of sentence, which was included in appeal, was denied.
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