STATE OF FLORIDA, APPELLANT,
v.
DANIEL MCCARTHY, APPELLEE
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The state appealed the trial court's dismissal of a charge under Florida's business opportunity seller statute, which prohibits misrepresenting prospects for success. The appellate court affirmed, holding that the statute is unconstitutionally vague and overbroad because it fails to define what constitutes a misrepresentation of inherently speculative business prospects and could chill protected speech.
The statute is unconstitutionally vague because it fails to give adequate notice of prohibited conduct and invites arbitrary enforcement, particularly since business prospects are inherently speculative. The statute is also unconstitutionally overbroad because it could be applied to restrict First Amendment-protected communication without sufficient definitional boundaries.
[1] A penal statute is unconstitutionally vague if it fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement due to its i…
[2] A statute is unconstitutionally vague when it does not define criminal offenses with sufficient definiteness for ordinary people to understand what conduct is prohibited.
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 intelligence“A vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement.”
Establishes the definition of vagueness used to evaluate the statute
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Join FLexlaw to unlock all legal intelligenceMcCarthy was charged under section 559.809(1), Florida Statutes, which prohibits business opportunity sellers from misrepresenting the prospects or ch…
The full statement of facts, procedural history, and disposition for this case are member content.
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HALL, Judge.
The state appeals the order of the trial court declaring section 559.809(1), Florida Statutes (1989), unconstitutionally vague and overbroad and dismissing the count of the information charging McCarthy with violation of that statute. We affirm.
Section 559.809(1) states that “[bjusiness opportunity sellers shall not: (1) Misrepresent the prospects or chances for success of a proposed or existing business opportunity.” Any person found to have engaged in such conduct is guilty of a third degree felony. § 559.815, Fla.Stat. (1991).
We agree with the trial judge that section 559.809(1) is unconstitutionally vague. “A vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement.” S.E. Fisheries v. Dept. of Nat. Resources, 453 So. 2d 1351, 1353 (Fla.1984); Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983) (“the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement”).
As the trial judge noted, the prospects for success of business opportunities, especially proposed business opportunities, are by definition speculative. Consequently, section 559.809(1) invites arbitrary and discriminatory enforcement because it does not define what constitutes a misrepresentation of the prospects for success of a speculative activity. For example, is a representation about the prospects for success of a business opportunity only a misrepresentation if the opportunity is unsuccessful? What if a misrepresentation about the prospects for success of a particularly risky business opportunity was made but the opportunity ultimately proves to be successful?
We also agree with the trial judge’s finding that section 559.809(1) is overbroad. Because the statute necessarily concerns oral or written communication, and because it does not sufficiently define what communication is prohibited, it could easily be applied to prohibit communication protected by the First Amendment. S.E. Fisheries, 453 So. 2d at 1353.
Accordingly, we affirm the trial judge’s order finding section 559.809(1), Florida Statutes (1989), unconstitutional and dismissing count I of the information filed against McCarthy.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.
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Citator
Authorities Cited
- Kolender v. Lawson, 461 U.S. 352 (U.S. 1983)
- Se. Fisheries Ass'n, Inc. v. Dep't OF Natural Res., 453 So. 2d 1351 (Fla. 1984)