STATE OF FLORIDA, APPELLANT,
v.
. LARRY HERMAN, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the subsections defining 'business opportunity' in section 559.801, Florida Statutes, should be read in the disjunctive (alternatively).
[1] A "business opportunity" is defined by statute to include the sale or lease of products, equipment, supplies, or services to enable a purchaser to start a business, where…
[2] Statutory subsections defining elements of an offense are generally construed in the disjunctive (using "or") unless legislative intent clearly indicates otherwise.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceHerman was charged with selling a business opportunity without filing a required disclosure statement. The transaction involved selling video machines…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Legislative Intent cases and more on FLexlaw
SHARP, Judge.
The state appeals from an order granting Herman’s motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion because it found that section 559.801, Florida Statutes (1983) does not apply to the type of transaction charged in the information. We reverse.
The sole issue in this case is the construction of section 559.801. Herman was charged with the unlawful sale of a business opportunity without first having filed a copy of the required disclosure statement with the Division of Consumer Services of the Department of Agriculture and Consumer Services.1 The undisputed facts were that Herman sold video machines to Jack Durie, and leased them back, promising to pay $50.00 per week per machine. Herman thereafter sold his interest in the business and Durie stopped receiving the lease payments.
Section 559.801 defines a “business opportunity” as:
(1) ... the sale or lease of any products, equipment, supplies, or services which are sold to a purchaser to enable the purchaser to start a business, and in which the seller represents:
(a) That the seller will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases, or other similar devices or currency-operated amusement machines or devices on premises neither owned nor leased by the purchaser or seller;
(b) That the seller will purchase any or all products made, produced, fabricated, grown, bred, or modified by the purchaser using in whole or in part the supplies, services, or chattels sold to the purchaser;
(c) That the seller guarantees that the purchaser will derive income from the business opportunity which exceeds the price paid for the business opportunity or that the seller will refund all or part of the price paid for the business opportunity or repurchase any of the products, equipment, supplies, or chattels supplied by the seller if the purchaser is unsatisfied with the business opportunity; or (d) That, upon payment by the purchaser of a fee or sum of money which exceeds $50 to the seller, the seller will provide a sales program or marketing program which will enable the purchaser to derive income from the business opportunity, except that this paragraph shall not apply to the sale of a marketing program made in conjunction with the licensing of a registered trademark or service mark. (Emphasis supplied).
The state contends the definition is satisfied by proof of either subsection (a) or (b) or (c) or (d). In sum, the state reads into the statute an “or” following the semicolons in (a) and (b). Herman argues that an “and” should be read after the semicolons in (a) and (b), making proof of facts under (a) and (b), and then either (e) or (d) necessary to charge an offense. The state conceded it had no proof of (b) in this case, but claimed it could prove (a), (c), and (d).
Normally an “or” would be implied following the semicolons in such a statute, because an “or” was used preceding the last in the series. See J. Hodges and M. Whitten, Harbrace College Handbook § 12c at 111 (8th ed. 1977). However, in ascertaining the meaning of any word the legislative intent is paramount. Infante v. State, 197 So. 2d 542 (Fla. 3rd DCA 1967).
The legislative history of section 559.801 indicates that a remedy for fraud in various different kinds of business contexts was . intended to be provided.2 This would not be achieved if all or even three of the subsections had to be proved in any one case. Further, it appears virtually impossible to prove all three subsections conjunctively since they purport to describe different undertakings or business arrangements, which would not often (if ever) occur in the same venture. That would not be a reasonable interpretation of the statute. Smith v. Piezo Technology & Professional Administrators, 427 So. 2d 182 (Fla.1983); City of St. Petersburg v. Siebold, 48 So. 2d 291 (Fla.1950). Therefore, we construe section 559.801 as having its lettered subsections written in the disjunctive or alternative sense. See Kirksey v. State, 433 So. 2d 1236,1239 (Fla. 1st DCA 1983), rev. denied, 446 So. 2d 100 (Fla.1984); Linkous v. Department of Professional Regulation, 417 So. 2d 802 (Fla. 5th DCA 1982).
The order appealed is
REVERSED.
COBB, C.J., and COWART, J., concur. . §§ 559.803; 559.805(1); 559.815, Fla.Stat. (1983).
. The bill analysis explains the definition of "business opportunity" as providing equipment ... locations or assistance, or guaranteeing a specified return. Senate Staff Analysis and Economic Impact Statement, Fraudulent and Deceptive Practices, May 18, 1979 (Florida State Archives).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lloyd Citrus Trucking, Inc. v. State of Fla. Dep't OF Agric. & Consumer Servs., 572 So. 2d 977 (Fla. 4th DCA 1990)…doctrine is applicable as the options are not mutually exclusive; acting on one does not bar acting pursuant to the other. It is axiomatic that in ascertaining the meaning of statutory language the legislative intent is paramount. State v. Herman, 466 So. 2d 435 (Fla. 5th DCA 1985). The rules of statutory interpretation dictate that words used by the legislature are to be given their plain meaning and a statute must be construed to avoid unreasonable consequences. See Wakulla County v. Davis, 395 So. 2d 540…
Authorities Cited
- Smith v. Piezo Tech. & Prof'l Administrators, 427 So. 2d 182 (Fla. 1983)
- City of St. Petersburg v. Siebold, 48 So. 2d 291 (Fla. 1950)
- Infante v. State, 197 So. 2d 542 (Fla. 3d DCA 1967)
- Kirksey v. State, 433 So. 2d 1236 (Fla. 1st DCA 1983)
- Kinlaw v. Unemployment Appeals Comm'n, 417 So. 2d 802 (Fla. 5th DCA 1982)
- Linkous v. Dep't OF Prof'l Reg. & Bd. of Real Est., 417 So. 2d 802 (Fla. 5th DCA 1982)