The Internet, however, tends to raise all kinds of issues begging for exceptions to general rules, and such was the case raised recently in the Missouri Court of Appeals in Baldwin v. Fischer-Smith, where the Court allowed Missouri residents to file a defamation lawsuit in Missouri against out-of-state defendants.

For a link to the Court’s opinion, click here.

Earlier this week, the Ninth Circuit issued an opinion resulting from a case where Quixtar, Inc., successor to Amway Corporation, had sued one of its competitors, Signature Management TEAM, LLC (“TEAM”), for allegedly carrying out an “Internet smear campaign” to induce Quixtar’s independent business owners to terminate their contracts with Quixtar and instead join a competing multilevel marketing company affiliated with TEAM.   In re. Anonymous Online Speakers, 2010 U.S. App. LEXIS 14166 (9th Cir. Nev. July 12, 2010)

The alleged “Internet smear campaign” included a set of anonymous blogs of both text and video postings.  At the lower court, during discovery, Quixtar obtained a court order compelling TEAM to identify the anonymous bloggers.  TEAM, arguing that the anonymous bloggers were protected by the First Amendment, appealed the order to the Ninth Circuit.  In response, Quixtar cross-petitioned the Court to order a TEAM employee to reveal the bloggers’ identity.

In the end, the Ninth Circuit held that the bloggers’ identity was not protected from the discovery process.

The Ninth Circuit explained that “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without fear of economic or official retaliation . . . or concern about social ostracism.”  It added that the anonymous speech issue had existed in print materials long before the Internet.  For instance, even the U.S. Constitution has roots in anonymous speech: James Madison, Alexander Hamilton, and John Jay published under the pseudonym “Publius” the famous The Federalist Papers, a series of anonymous essays advocating the ratification of the Constitution.  Online speech, therefore, stands on the same footing as other speech, the Court said. 

However, freedom of speech –anonymous or otherwise – is not unlimited, the Court reminded.  The level of scrutiny depends on the circumstances of each case.  Obscenities, libelous speech, and  “fighting words,” for instance, lack First Amendment protection.  On the other hand, “commercial speech” has some First Amendment protection (generally when not misleading or related to unlawful activity), and “political speech” is offered the greatest protection.

In this case, the blogs had been directed specifically toward Quixtar’s commercial practices and business operations, and were therefore “commercial speech.”  However, the characterization alone does not determine First Amendment protections for anonymous speakers, as the “decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”

The Court also considered a party’s right to obtain discovery.  It looked to another 2010 case, Perry v. Schwarzenegger, where the court had denied the request of a party in a California same-sex marriage suit to obtain internal campaign communications from proponents of a ballot proposition.  591 F.3d 1147 (9th Cir. Cal. 2010).  In that case the court reasoned that, because the communications “would likely have a chilling effect on political association,” greater protection was necessary.

But the TEAM bloggers’s speech was commercial, not political. So the Court looked to other cases that focused on “commercial speech,” but could find little established standards.   

The Court said that the Delaware Supreme Court had, in Doe v. Cahill, established the “most exacting” standard, but it involved political, not commercial speech.  884 A.2d 451 (Del. 2005). Under the Cahill standard, for a plaintiff to discover an anonymous speaker’s identity, the plaintiff must be able to survive a hypothetical motion for summary judgment, such as showing sufficient evidence to establish each essential element of a defamation claim. 

The Ninth Circuit said, however, that “commercial speech should be afforded less protection than political, religious, or literary speech.”

In the end, the Ninth Circuit Court of Appeals agreed with the lower court’s decision to balance a party’s need for relevant discovery with the right to First Amendment protection.  It concurred with the lower court that, “particularly in the age of the Internet, the ‘speed and power of internet technology makes it difficult for the truth to “catch up” to the lie.’”

In conclusion, the court decided that neither Quixtar nor TEAM were entitled to relief. 

First, it denied the anonymous bloggers’ request to vacate the order compelling disclosure of the bloggers’ identity.  It explained that, for discovery purposes, the parties already had a protective order in place that provided different levels of disclosure for different categories of documents, such as disclosure for “Attorneys’ Eyes Only,” which could reduce the harms of disclosure.

Next, the Court denied Quixtar’s motion to compel the TEAM employee to disclose the identity of the anonymous bloggers, reasoning that Quixtar had not offered enough “extraordinary circumstance” to merit the court to grant the motion.

What can bloggers and businesses take from this case? 

Anonymous bloggers should realize a couple of things: First, not all speech is protected.  Second, although their anonymity will usually remain protected – it will not necessarily always be. 

Businesses, on the other hand, should be made more aware of the prevalence of anonymous blogging on the Internet, and that any action against an anonymous blogger may result in a lengthy court action, after which damage may have already been effected.  To monitor the Web, businesses can use tools, such as Google Alerts, which can search for a specific business name to give them updates as others publish content about them.

You can access a copy of the court’s opinion here.   If you have questions about this blog entry, you may email the author, Attorney Cynthia Conlin, at cconlin@cplspa.com.

In 1979, when Ms. Ledbetter was hired to work at the Goodyear Tire and Rubber Company in Alabama, she was earning the same salary as the male plant workers. By the time Ms. Ledbetter retired in 1998, however, the wages she was earning were significantly lower than that of her male co-workers. She took her case to Court which held that Ms. Ledbetter’s claim was barred because its statute of limitations had run. Ledbetter v. Goodyear Tire & rubber Co., 550 U.S. 618 (2007).

Congress disagreed with the Court’s interpretation, however, and overturned its decision. It enacted the Lily Ledbetter Act which holds employers liable for compensation discrimination at the time when employers adopt discriminatory practices in the workplace and also when employees are affected by such practices, “including each time wages, benefits, or other compensation is paid.” The effect the Ledbetter Act has is that each time wages are paid to workers, a new statute of limitations begins to run that enables employees to bring claims of wage discrimination. What this effectively means for companies in the U.S. is that they must be able to articulate valid reasons for any pay disparity that may exist among co-workers or otherwise face actions and possible sanctions for employment discrimination.

From its recent actions, it does not appear that Congress will again become dormant in fighting the evils of discrimination in our society. Currently pending in Congress is the Employment Non-Discrimination Act of 2009 (ENDA). If this Act is passed by Congress and then signed by President Obama, it would add protections that many states already have in place. The Non-Discrimination Act would make it illegal for employers to discriminate against employees based on sexual orientation and gender identity. What the Act does not do is require that employers extend spousal benefits to same-sex couples. In effect, this means that employers are not required to treat unmarried couples similar to married couples.

In addition to ENDA, Congress is also considering the Paycheck Fairness Act (PFA). This Act would basically require that when employers face an action of wage discrimination, they would have to prove that any wage discrepancy amongst male and female counterparts is 1) not based or derived from sex-based differential in compensation; 2) job-related to the position in question; 3) and consistent with business necessity.

So what is the lesson to be learned from these recent changes in employment legislation?

Companies should be diligent in reviewing their compensation structures to identify pay discrepancies that may be present amongst their employees. If pay discrepancies do exist, companies must be prepared to articulate non-discriminatory reasons for the differences in pay.

To find out how we can help your company understand and comply with these and other laws, please call us at 407-647-7887 or email us at info@cplspa.com.

The U.S. Court of Appeals for the Eleventh Circuit decided last week that Flava Works Inc., a company selling sexual images filmed in a house in Miami, had violated city zoning laws by “illegally operating a business in a residential zone.”

The case, Flava Works Inc. v. City of Miami, originated in 2007 when the City issued a zoning violation, then order, against Flava Works.  Although Flava Works used an off-site location for its general office work, it also maintained a residential house, the “CocoDorm,” and paid independent contractors $1,200.00 a month plus room and board to “engage in sexual relations which are captured by the webcams located throughout the house.”

The City found that the CocoDorm violated two City Codes:  (1) “adult entertainment not permitted in C-1 zone property” and (2) “illegally operating a business in a residential zone.”  

Flava Works appealed the order to the Southern District of Florida and, at the District Court level, won.  The District Court pointed to a 2001 case, Voyeur Dorm, L.C. v. City of Tampa, that it found controlling.  The “materially indistinguishable” facts of the Voyeur Dorm case included a house of women who disrobed and performed “intimate” acts on webcam in exchange for rent and payment.  The Eleventh Circuit held that the Tampa “adult entertainment” ordinance at issue did not apply to the Voyeur Dorm because customers were never physically invited to the house, and the Voyeur Dorm only offered entertainment “over the Internet in ‘virtual space.’”

The City of Miami appealed the District Court’s decision and argued that, although the Voyeur Dorm decision may be controlling as it pertains to application of one of the zoning ordinances (specifically, the one prohibiting “adult entertainment” in C-1 zone property), it could not pertain to whether Flava Works had violated the other zoning ordinance: “illegally operating a business in a residential zone.” 

Flava Works argued no actual “business” was conducted at the CocoDorm, as “no goods were bought or sold and nothing was manufactured” there, and all commercial transactions took place at a separate office, and that the second ordinance could not apply either.

Disagreeing with Flava Works, the Eleventh Circuit Court of Appeals said, “it can be reasonably asserted that raw video images, which were later sold over the internet, were created” at the CocoDorm.  “While these images are not tangible goods, they have a commercial value and enable Flava Works to earn a profit.”  Furthermore, the activities at the CocoDorm are “part and parcel to Flava Works’s business operation,” and “the sole reason individuals are paid to live and engage in sexual activities” is business.

The Court also looked at the zoning ordinance in question, which includes specific exceptions “for a variety of home occupations,” such as “architect, broker, or lawyer.”   Unfortunately for the operators of the CocoDorm, there was no exception for adult etertainers.

The Court concluded that Flava Works and the CocoDorm were “in clear violation” of operating a business in a residential zone.

(Download a PDF of the Court’s opinion here.) 

If you have questions or comments about this blog article or other related issues in Internet Law or Business Law, feel free to email Attorney Cynthia Conlin at cconlin@cplspa.com.

For tax years beginning after December 31, 2006, the Small Business and Work Opportunity Tax Act of 2007 (Public Law 110-28) provides that a “qualified joint venture,” whose only members are a husband and a wife filing a joint return, can elect not to be treated as a partnership for federal tax purposes.

A qualified joint venture conducts a trade or business where:

1. the only members of the joint venture are a husband and wife who file a joint return
2. both spouses materially participate in the trade or business (mere joint ownership of property is not enough)
3. both spouses elect not to be treated as a partnership, and
4. the business is co-owned by both spouses (and not in the name of a state law entity, such as a partnership or LLC)
   The QJV option simplifies the filing requirements by allowing husband and wife businesses to be treated as sole proprietorships and file a Form 1040 federal tax return rather than partnerships for tax purposes. It eliminates filing a Form 1065 tax return for qualified joint ventures. The option also helps to ensure each spouse gets proper Social Security credit.

Spouses electing qualified joint venture status are treated as sole proprietors for federal tax purposes. An Employer Identification Number (EIN) is not required for a sole proprietorship unless the sole proprietorship is required to file excise, employment, alcohol, tobacco, or firearms returns when using the rules for sole proprietors. If the spouses previously had an EIN for their partnership, that EIN can only be used if the spouses do not elect qualified joint venture status.

Making the election to be treated as a qualified joint venture

Spouses make the election on a jointly filed Form 1040 by dividing all items of income, gain, loss, deduction, and credit between them in accordance with each spouse’s respective interest in the joint venture, and each spouse filing with the Form 1040 a separate Schedule C (Form 1040), Profit or Loss From Business (Sole Proprietorship) or Schedule F (Form 1040), Profit of Loss From Farming, and, if otherwise required, a separate Schedule SE (Form 1040), Self-Employment Tax.

To make the qualified joint venture election for 2009, jointly file your 2009 Form 1040, with the required schedules. This generally does not increase the total tax on the return, but it does give each spouse credit for social security earnings on which retirement benefits are based, provided neither spouse exceeds the Social Security tax limitation.

Earning Social Security benefits

For purposes of determining net earnings from self-employment, each spouse’s share of income or loss from a qualified joint venture is taken into account just as it is for federal income tax purposes under the provision, in accordance with their respective interests in the venture.
A spouse is considered an employee if there is an employer/employee type of relationship. (i.e., the first spouse substantially controls the business in terms of management decisions and the second spouse is under the direction and control of the first spouse.) If such a relationship exists, then the second spouse is an employee subject to income tax and FICA, Social Security and Medicare withholding.

If your spouse is your employee, and not your partner, you must pay Social Security and Medicare taxes for him or her. The wages for the services of an individual who works for his or her spouse in a trade or business are subject to income tax withholding and Social Security and Medicare taxes, but not to FUTA tax.

Reporting Federal income tax as a qualified joint venture including self-employment tax

Spouses electing qualified joint venture status are treated as sole proprietors for federal tax purposes. The spouses must share the income, gain, loss, deduction, and credit of the business.

If the business has employees, either of the sole proprietor spouses may report and pay the employment taxes due on wages paid to the employees, using the EIN of that spouse’s sole proprietorship. If the business already filed Forms 941 or deposited or paid taxes for part of the year under the partnership’s EIN, the spouse may be considered the “successor employer” of the employee for purposes of determining whether the wages have reached the social security and Federal unemployment wage base limits.
For more information on this topic, please contact Attorney Persad at 407-647-7887 or email him at attorneypersad@cplspa.com.

In recent years, overtime lawsuits have resulted in considerable expenses for employers.  Often the lawsuits are not even covered by employer insurance, and the results are costly:  Employers can end up paying double the amount of overtime owed in addition to the employees’ attorneys’ fees, as well as the employers’ own attorneys’ fees to defend the lawsuits.  In addition to private suits, employers can be susceptible to penalties from the Department of Labor.

As well as alleging unpaid overtime, many employees often allege that their employers did not maintain adequate records as required by the Fair Labor Standards Act (FLSA).  Therefore, it is essential that employers maintain adequate and updated payroll records. 

The FLSA does not require records be kept in any particular format, but the records must include certain information about each employee.  Whether these records are electronic or on paper, it is advisable to have a separate file on each employee. 

Payroll records, as well as sales and purchase records, must be maintained for at least three years.  Records on which wage computations are based (i.e., time cards, wage rate tables, work and time schedules, and records of additions to or deductions from wages) must be maintained for at least two years.

All of these records must be open for inspection by the representatives of the U.S. Department of Labor, who may ask the employer to make extensions, computations, or transcriptions.  The records may be kept either at the place of employment or in a central records office.

The following is a list of the minimum basic records an employer must maintain about each employee:

1. Employee’s full name and social security number.
2. Address, including zip code.
3. Birth date, if younger than 19.
4. Sex and occupation.
5. Time and day of week when employee’s workweek begins.
6. Hours worked each day.
7. Total hours worked each workweek.
8. Basis on which employee’s wages are paid (e.g., “$9 per hour,” “$440 a week,” “piecework”).
9. Regular hourly pay rate.
10. Total daily or weekly straight-time earnings.
11. Total overtime earnings for the workweek.
12. All additions to or deductions from the employee’s wages.
13. Total wages paid each pay period.
14. Date of payment and the pay period covered by the payment.

Finally, the law requires that employers display particular posters, which the Department of Labor provides for free.  Employers can download the posters for free and print copies from the DOL’s website. The Fair Labor Standards Act poster is available written in multiple languages.

To ensure that employers comply with these as well as other requirements of the FLSA, it is advisable for employers to consult with an attorney.

For more information about this or other employment law issues, please feel free to contact Attorney Cynthia Conlin at cconlin@cplspa.com.

By CYNTHIA CONLIN, ESQ.

It’s no secret, with the falling economy, that collection practices and lawsuits against debt collectors have been on the rise.  However, one recent court decision may have given consumers in Florida even more protections from unscrupulous creditors.

In Florida, like in many states, debt collectors must comply with at least two bodies of statutory law.  First, there is the Fair Debt Collection Practices Act (FDCPA), a federal law enacted by Congress in 1978 that establishes general standards of conduct, defines and restricts abusive collection practices, and provides specific rights for consumers.  Second is the Florida Consumer Collection Practices Act (FCCPA), a state law enacted by the Florida legislature in 1993 to give consumers additional protections. 

With some exemptions, the state act (specifically, Fla. Stat. § 559.555) requires collection agencies engaging in business within the state of Florida to register with the Florida Office of Financial Regulation.  To register, they must pay a $200.00 fee and provide certain information to the Office, and they must renew their registration annually. Although the state act allows consumers to sue debt collectors for various other reasons, it provides no private right of action for a consumer to sue a debt collector for its failure to register.   

However, a few months ago, in LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir. 2010), the United States Court of Appeals for the Eleventh Circuit addressed whether a consumer in Florida could, pursuant to the federal act, sue a collection agency for its failure to register with the Florida Office of Financial Regulation in violation of the state act.  After considering the legislative objectives of and the interplay between both the federal and state acts, the court held that a violation of the state act could support a federal cause of action. 

In LeBlanc, a collection agency that had not registered with the Florida Office of Financial Regulation sent the consumer a letter that, among other things, included:

If we are unable to resolve this issue within 35 days we may refer this matter to an attorney in your area for legal consideration.  If suit is filed and if judgment is rendered against you, we will collect payment utilizing all methods legally available to us, subject to your rights below.

The consumer in that case argued that the collection agency could not threaten to sue him because its failure to register would prohibit it from legally filing suit in Florida.

The court explained that, by its own terms, the federal act does not “annul, alter, affect, or exempt” collection agencies from complying with state law (quoting 15 U.S.C. § 1692n), but rather “establishes minimum boundaries for unlawful debt collection, leaving intact state laws which provide higher levels of consumer protection from collection activity” (quoting 104 AM. JUR. Proof of Facts 3d 1, § 5 (2009)).  The court also explained that Florida act, even though it did not provide for a private civil cause of action for non-registration, showed that the state was serious about addressing such a violation because the legislature had made a violation of the registration requirement a criminal misdemeanor (Fla. Stat. § 559.555).

However, the court explained that debt collector actions that violated state laws were not per se violations of the federal act.  Rather, the court said, the collection agency’s conduct or communication would also have to violate the relevant provision of the federal act.  Therefore, LeBlanc’s suit against the agency would only be as valid as was his claim under section 1692e(5) or 1692f of the federal act.

The court considered LeBlanc’s claim under section 1692e(5) of the federal act using a two-part analysis. First, was the agency’s dunning letter a “threat to take action which could not legally be taken” in violation of the section?  The court had to decide, first, was the language of the letter a threat or merely informative? The court reasoned that, because the federal act does not define “threat,” and because the letter could be viewed potentially as either threatening or informative, the first question would have to be answered by a jury, using the “least-sophisticated consumer” standard.  Second, if it was a threat, could the threatened legal action be legally taken?  The court decided that, in that case, the agency could not have legally taken action in Florida because it was not registered and not exempt from the registration requirement.

The court then considered LeBlanc’s claim under section 1692f of the federal act and asked whether the agency’s failure to register had amounted to an “unfair or unconscionable” means of collecting a debt in violation of the section.  Again, the court held that it was possible but a question for the jury to decide.

What does this decision mean for debt collectors?

If debt collectors plan to attempt collection of debts from people within the state of Florida, they should be advised of not only federal laws but also state requirements.  Unless they are exempt, they must, pursuant to Florida Statute, register with the Florida Office of Financial Regulation.   Florida has acts regulating both consumer collections and commercial collections, and lawsuits for violations of these laws have been on the rise in recent years.  To make sure that debt collectors are proceeding in accordance with law, it is important that they consult with an attorney.

Additionally, debt collection companies structured as partnerships must be aware that their partners may be found vicariously liable for the partnership’s actions.  (In LeBlanc, the court held that the agency’s general partners could be liable.) Therefore, to protect themselves, it is important that the company’s founders consult with an attorney prior to finalizing the company’s organizational structure, and, after the company is formed, that they ensure that the company abides by all applicable state and federal laws and requirements. 

What does this decision mean for consumers?

If Florida consumers receive communications from collection agencies, they may be able to file civil lawsuits against those agencies if they are not registered with the Florida Office of Financial Regulation and if they have violated the FDCPA or the FCCPA.  The OFR’s website includes a free service to search for debt collectors to see if they are registered.

If you are a consumer who thinks a debt collector is violating either state or federal collection-practices laws, you should consult with an attorney to more fully understand your rights.

Questions?

If you have any questions or about this topic or this blog, feel free to contact the author of this blog, Attorney Cynthia Conlin, at cconlin@cplspa.com.

1. In advance of the first meeting with your attorney, assemble as much relevant documentation as possible. For instance, in a typical divorce case, this would include (at a minimum) complete copies of recent tax returns, pay stubs for both you and your spouse, a detailed list of all assets and liabilities, and any legal paperwork already filed and/or served upon you.

2. Speaking of documentation, organize every piece of paper that you give to your attorney. Documents should be stapled, labeled and assembled in an orderly fashion. Keep in mind that your attorney and his/her staff will do whatever is necessary to organize the documentation that you provide to him/her if you don’t do so. It will, however, take time and cost money.

3. Keep a detailed diary of all significant events pertaining to your case and make sure to share copies with your attorney. A “Week-at-a-Glance” calendar often serves this purpose well. This may be especially important in a custody case. Your memory may fade with time, but a well-kept diary can be used to refresh your recollection prior to and/or during a hearing. Additionally, your attorney can use your diary to assist in preparing your testimony in advance of a hearing.

4. A picture is worth a thousand words. Besides documenting things in your diary, document what you can with photographs and/or videos. For instance, if you decide to move out of the marital residence, take photographs of the condition of the residence and all property that you left behind.

5. Ask questions. There is no such thing as a stupid question. More often than not, questions from clients are highly relevant and serve as a basis for helping to frame out the issues and develop strategies.

6. If you need to discuss non-legal issues with someone, you may not want to call your attorney. His/her hourly rate is probably much higher than a therapist’s, and the therapist probably is better equipped to handle the issue. While your attorney may be a very good listener, it will be to your economic and emotional advantage to discuss non-legal issues with your therapist, family members, friends, priest, rabbi, pastor, etc.

7. Do your best to pay your attorney’s bills on a timely basis. If you cannot pay a bill within a reasonable amount of time, call your attorney and ask to work out some payment arrangements. If you are making a genuine effort, most attorneys will be understanding and work with you.

8. Promptly respond to calls and inquiries from your attorney. If it was not important, your attorney would not be contacting you. Furthermore, if you are not being responsive to your attorney, he/she will have no choice but to spend his/her time and your money trying to get a response.

9. When you leave a message for your attorney (either on voicemail or through a secretary) leave your phone number and the time when you will be available to speak. While your attorney likely has your number, it will take less time for your attorney to call you back if he/she does not have to find your number. This is especially true if your attorney is not in his/her office.

10. If you have left messages for your attorney and have not received a response in a reasonable period of time, realize that there is probably a good reason why he/she has not returned your call (i.e., tied up in court or meetings, or handling an emergency situation). If the reason for your call is of an urgent nature, do not hesitate to explain the situation to your attorney’s secretary and/or ask if you can speak with another attorney in the firm. If your call is not urgent, ask your attorney’s secretary when she expects the attorney to be available so that you can call again or ask if an appointment can be placed in the attorney’s calendar for a phone conference.

11. Do not believe everything that you hear from your spouse, family and friends as it pertains to your case and the law. Even though your spouse may act like he/she is trying to be accommodating, the reality is that he/she is likely out to get the best possible result for himself/herself. Similarly, realize that every case is different. Just because your friend’s cousin got a particular result does not mean that you will get a similar result.

12. Do not sign or agree to anything without first speaking with your attorney. Attorneys are usually in favor of parties speaking and trying to reach amicable resolutions between themselves. An attorney, however, can and will help you determine if the terms discussed are in your best interest. There is nothing wrong with telling the opposing party that you need some time to think about it and will get back to them after speaking with your attorney. If the opposing party is pushing you to sign something on the spot, be suspect.

13. Be discreet and resist the urge to deliberately annoy or antagonize your spouse. If you do or say something that you know will annoy your spouse, be prepared for appropriate retaliation. Also be prepared to pay your attorney who will, no doubt, get a call from the opposing counsel when your spouse calls to complain about your behavior.

14. Last, but not least, be candid and truthful with your attorney. Attorneys do not like surprises. If your Attorney is well-informed, he/she can be fully prepared to deal with potentially damaging information if and when it is raised by the other side.

To find out how we can help you with your immigration issues, call us at 407-647-7887 or email us at info@cplspa.com.

Section 559.920, Florida Statutes is the “prohibited practices” section of the Florida Motor Vehicle Repair Act (FMVRA), which allows a consumer to file a civil lawsuit in Florida against a motor vehicle repair shop or, in some cases, a repair technician who has violated the Act.

With a goal of protecting consumers against dishonest repair shops, the Act lists seventeen different things that, if a motor vehicle repair shop or its employee does, constitute violations.  For instance, it is a prohibited practice for a repair shop to make repairs that a customer did not authorize; or for a shop to tell a customer it made certain repairs it did not; that certain repairs are necessary when they are not, or that a car is dangerous to drive when it is not.  Likewise, several of the other violations also amount to acts of dishonesty.

Although many honest and law-abiding technicians and service advisors exist, unfortunately not all are so honest.  In many shops, the technicians or service advisors are paid on a commission or bonus structure and thus have a personal financial incentive to sell repairs to a customer. 

Unfortunately, however, even though Florida law protects consumers against unscrupulous motor vehicle repair shops and technicians, not everyone who falls victim to unnecessary repairs can be successful in court.  A technician or shop may be able to successfully show that the technician, in good faith and in his professional opinion, was reasonable in believing that your car needed the repair.  Or it may be impossible to prove that the repair was unnecessary – especially if the original parts were discarded.

Therefore, the best thing to do is prevent unnecessary repairs from happening in the first place.

First, and most importantly, if you need repairs, shop around. If a mechanic tells you an expensive repair is necessary, get a second, third, or even a fourth opinion before you spend the money.  When you shop around to validate that a repair is necessary, also shop around for price.  Many repair shops overcharge for labor or parts but will adjust their prices if you show an estimate from another repair shop.

Next, don’t be afraid to ask questions.  If a mechanic tells you a repair is necessary, ask why, and make an effort to understand exactly what you are being told.  Ask the mechanic to point out to you and show you the problems.

Get a copy of a written estimate, and then compare the estimates from different shops to see if they include the same repairs.  If a repair is expected to exceed $100.00 and the shop agrees to perform the repair, the shop has a legal obligation in Florida to give you a written estimate before it performs any repairs. Section 559.905, Florida Statutes, requires a repair shop in Florida to give you an estimate before it performs any diagnostic work or repair.  The estimate must include certain things, including but not limited to:  the shop’s name, address, and telephone number; your name, address, and telephone number, the date; your car’s year, make, model, odometer reading, and license tag number; the date the shop expects to complete the work; a general description of the customer’s problem or request; and a statement as to how you will be charged (flat rate or hourly or both).  You have an option to waive, in writing, the shop from including the estimated cost of repair.  However, if you have the time and ability, it is best to get everything in writing you can.

After the repair shop performs the repairs, make sure it gives you a written invoice.  It is legally obligated to provide that too.  Section 559.911 requires repair shops in Florida that have completed a repair to give the customer a legible invoice written on the same form as the written repair estimate.  The invoice must include, among other things: the date; the odometer reading; “a statement indicating what was done to correct the problem or a description of the service provided”; and an itemized description of all labor and parts.  If a part was supplied without cost because it was under warranty, the invoice must also state that.

If you have fallen victim to unlawful or wrongful repairs that caused you money or other damages, see an attorney.  You may be able to recover your damages by filing a civil lawsuit, or, in some cases, even outside the courtroom with a well-written demand letter from an attorney.  If you can successfully show that you were damaged by the shop or mechanic’s violations of the Florida Motor Vehicle Repair Act and/or the Florida Unfair and Deceptive Trade Practices Act (FUDTPA), which outlaws any unconscionable, unfair, and deceptive acts or practices in the conduct of any trade or commerce, you may also be able to receive an award of your attorneys’ fees.  In some cases, even if the faultiness of the repairs was unintentional on the mechanic’s part, you may still be able to succeed in a civil action against them for other, common-law (non-statutory) causes of action.

Finally, other options, which can help to warn other consumers about the violations, is to report the repair shop to the Division of Consumer Services of the Florida Department of Agriculture and Consumer Services, the government agency that investigates consumer complaints, or the Better Business Bureau.

If you are a victim of unlawful or wrongful repairs want to know more about how we can help you, please contact us at 407-647-7887 or email us at infor@cplspa.com.