6 Fla. L. Weekly Supp. 500a
Criminal law — Solicitation of false and fraudulent insurance claim — Statute making it unlawful to solicit business in or about hospitals, sanatoriums, or any private institutions, upon private property, in public institutions, in any public place, upon public streets, for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits does not apply to telephone solicitation — Motion to dismiss is granted on all counts except the single count in which it was alleged that defendant physically presented themselves at private residence to solicit business
STATE OF FLORIDA vs. DANIEL PIA. 13th Judicial Circuit in and for Hillsborough County, Criminal Justice Division. Case No. 96-6796, Division E. March 18, 1999. William Fuente, Judge.
ORDER DISMISSING COUNT 1 AND COUNTS 3 through 20 OF AMENDED INFORMATION
THIS COURT, upon consideration on February 18, 1999 of Defendant’s Motion to Dismiss Per Rule 3.190(c)(4), having further considered the State’s Traverse, arguments of counsel, authorities cited by counsel, having conducted independent research, and being otherwise informed in the premises, finds as follows.
Defendant is charged by Amended Information with 20 counts of violating section 817.234(8), Florida Statutes. Each count alleges that a specific individual was unlawfully solicited by Defendant to make a false and fraudulent insurance claim. Count 2 alleges that Robert Barnum was unlawfully solicited.
Section 817.234(8) provides, inter alia:
It is unlawful for any person, in his… individual capacity or in his… capacity as a public or private employer, or for any firm, corporation, partnership, or association, to solicit any business in or about…hospitals…, courts; in any public institution; in any public place; upon public streets…; in or about… hospitals, sanatoriums, or any private institutions; or upon private property of any character whatsoever for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736…
Defendant admits under oath in his motion that Glenn and Susan Preback telephoned prospective chiropractic patients and referred them to him. He denies that he, or the Prebacks on his behalf, ever solicited patients in person; in or about any hospital; in any public institution; in any public place; upon any street; in or about any hospitals; or upon private property.
The State’s Traverse, which the Court will treat as a Demurrer except as to count 2, admits the Defendant’s assertions, but adds the factual assertions that the Prebacks (on Defendant’s behalf) had telemarketers place (telephone) calls to accident victims in hopes of having them become patients of the Defendant and other chiropractors, and that the (telephone) calls were made to individuals at their private residences. The Traverse also adds a factual assertion that a representative of the Defendant personally came to the home of Robert Barnum (Count 2) to solicit his business.
The State argues that the legislation was implemented before telemarketing was as pervasive as it is today, and that prosecutions currently are successfully pursued throughout Florida based on similar conduct. Defendant argues that because the statute proscribes specific conduct, any general language in the statute can not be construed to expand the list of specifically proscribed conduct. He cites Houck v. State, 634 So.2d 180 (Fla. 1st DCA 1984) and Green v. State, 604 So.2d 471 (Fla. 1992) (statutory language must be given its plain and ordinary meaning, unless words are defined in statute or by clear intent of legislature).
The parties alluded to the legislative intent behind the statute, but provided no evidence of same. The Court has researched the 1976 Senate Staff Analysis, the Conference Committee Bill Action Report, and the Senate Commerce Committee Staff Analysis and Economic Statements pertaining to the legislation, none of which suggests that the statute was intended to proscribe any conduct other than that recited in the Statute.
The doctrine of ejusdem generis provides that when an enumeration of specific things in a statute is followed by a general word or phrase, the general phrase will be construed to refer to things of the same kind or species as those specifically enumerated. See Houck, supra.
Section 817.234(8), Florida Statutes specifically proscribes soliciting on or about; on; or upon some very specific places; and generally upon private property of any character whatsoever.
It is admitted that neither the Defendant nor his agents solicited individuals by physically presenting themselves at any of the proscribed places, except for the private residence of Robert Barnum (count 2).
The State urges an interpretation of the statute that telephoning a residence is equivalent to physically going to the residence. However, section 775.021(1), Florida Statutes requires the Court to strictly construe a penal statute, to the extent that if the language of the Statute is susceptible of different constructions, it must be construed most favorably to the accused. See Houck, supra, Scates v. State, 603 So.2d 504 (Fla. 1992), and State v. Camp, 596 So.2d 1055 (Fla. 1992).
Accordingly, the motion to dismiss is GRANTED in part and DENIED in part. Counts l, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 are DISMISSED; Count 2 is not dismissed.
The State of Florida has fifteen (15) days to appeal this order.
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