E-Copy Received Aug 6, 2010 2:53 PM

IN THE DJSTRICT COURT OF APPEAL

FIRST DISTRICT OF FLORIDA

FREDERICK W. KORTUM

Appellant,

V. Case No. 1D1O-2459

L.T. Case No. 2009-.CA-3 926

ALEX SINK, in her capacity as

Chief Financial Officer of the
State of Florida, and head of the
Department of Financial Services,

Appellee.
/

ANSWER BRIEF OF APPELLEE ALEX SINK

Michael H. Davidson
200 E. Gaines Street
612 Larson Bldg.
Tallahassee, Fl. 32399
(850) 413-4178
Fl. BarNo. 191637
Counsel for Appellee
 TABLE OF CONTENTS

Preliminary Statement I

Table of Authorities ii

Summary of Argument 1

Argument 3

Standard of Review 2

I. THE CHALLENGED STATUTE DOES NOT IMPOSE A COMPLETE BAN

ON COMMUNICATION, REGULATES CONDUCT AND NOT SPEECH,
AND IS CONSTITUTIONAL 3

THE CHALLENGED STATUTE DOES NOT DENY APPELLANT EQUAL

PROTECTION OF THE LAW 18

THE STATUTE HAS NOT DEPRIVED APPELLANT OF HIS RIGHT TO

BE REWARDED FOR HIS INDUSTRY. APPELLANT DID THAT TO
HIMSELF 25

Conclusion 32

Certificate of Service 33

Certificate of Compliance 33
 TABLE OF AUTHORITIES

Agency For Health Care Adrnin.v. Hameroff, 816 So.2d 1145

(Fla. 1st DCA 2002), rev, den. 835 So.2d 266, cert dismissed,
539 U.S. 973, 124 S. Ct. 14, 156 L.Ed.2d 680 (2003) 30

Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 865 So.2d 590
(Fla. 2 DCA 2004) 29

B.S. v. State, 862 So.2d 15 (Fla. 2 DCA. 2003) 23

Central Hudson Gas & Electric Corporation v, Public Services Commission of

New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L.Ed. 2d341 (1980) 13

City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 440 (1985) 24

Consolidated Edison Company of New York, Inc., v. Public Services

Commission of New York, 447 U.S. 530, 100 S. Ct, 2326,
65 L. Ed. 2d319 (1980) 5,7,13

Edenfield v. Fane, 507 U.S. 761, 113 5. Ct. 1792,

123 L.Ed. 2d543 (1993) 3,11,13,30

Fla. Dept. of Revenue v. Howard, 916 So.2d 640 (Fla. 2005) 32

Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371,
132 L.Ed,2d 541 3,11,12,30
Florida Dept. of Revenue v. Florida Mun. Power Agency,
789 So.2d 320 (Fla. 2001) 8

Francis J. Ducoin, D.D.S., et al v. Dr. Ana M. Viamonte Ros, etc.

Case No. 2003 CA 696 Second Judicial Circuit, order filed April 3, 2009 13

Fraternal Order of Police, Metropolitan Dade Count, Lodge No. 6 v.

Department of State, 392 So.2d 1296 (Fla. 1980) 29

Fullerv. Watts, 74 So.2d 676 (Fla. 1954) 16,25

II
Gore Newspaper Co. v. Department of Revenue,
398 So.2d945 (Fla.4thDCA 1981) 8

Grant v. State, 770 So.2d 655 (Fla. 2000) 19

Insurance Adjustment Bureau v. Insurance Commissioner for the

Commonwealth of Pennsylvania, 518 A. 2d 1317 (Penn. 1988) 13

Kass V. Lewin, 104 So.2d 572 (Fla. 1958) 32

Kirby Center of Spring Hill v. State, Dept. of Labor and Employment Sec.,
Div. of Unemployment Compensation, 650 So.2d 1060 (Fla. 1st DCA 1995) 8

Lite v. State, 617 So, 2d 1058 (Fla. 1993) 24

North Florida Women's Health and Counseling Services, Inc. v. State,

866 So.2d 612 (Fla. 2003) 28

Ocala Breeders' Sales Co., Inc. v. Florida Gaming Centers, Inc.,

793 So.2d 899 (Fla. 2001) 19

Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978) 22

State v. Bodden, 877 So.2d 680 (Fla. 2004) 28

State cx rd Kennedy v. Knott, 166 So. 835 (Fla.1936) 14

State v, Conforti, 688 So.2d 350 (Fla. 4DCA 1997),

rev, den. 697 So.2d 509 4, 7, 12

The Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007) 30

The Florida High School Activities Assn, Inc. v.

Thomas By and Through Thomas, 434 So.2d 306 (Fla. 1983) 18, 23, 28, 29

United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673,

20 L.Ed. 2d 672 (1968) 3,4,7, 10, 14, 15,24,25,31

Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090 (Fla. 2005) 28
West Flagler Kennel Club, inc. v. Florida State Racing Commission,
153 So.2d 5 (Fla. 1963) 19

Section 626.854(6), Fla. Stat 1

Section 627.351(6), Fla. Stat 15

U.S. Const. Amend. XIV, Section 1 18

Art. 1, Section 2, Fla. Const. (1968) 8, 19, 25,31

Art. 1, Section 4, Fla. Const. (1968 25, 31

iv
 SUMMARY OF ARGUMENT

Section 626.854(6), Fla. Stat., regulates conduct, Its effect on speech is

merely incidental to the regulation of that conduct. It is content neutral. It does not

control the actual content of any speech between a public adjuster and an insured.

It does not seek to control speech because the content of the message conveyed

through that speech is dangerous or misleading, or seek to restrict the message

conveyed through the conduct in question. Both public adjusters who testified for

the Appellant stated that the statute had not caused them to change the content of

their speech directed to insureds. The statute proseribes only face-to-face and

telephonic solicitations by public adjusters, and then only for the first 48 hours

following a claims producing event. It does not proscribe written or electronic

solicitations made within the first 48 hours after a claims producing event. The

statutes serves the legitimate and recognized government purposes of promoting

the ethical behavior of public adjusters practicing in Florida, and protecting the

privacy interests of Florida citizens. The regulation of public adjusting falls within

the constitutional powers of the State of Florida. The statute thus meets the O'Brien

tests for constitutionality.

Because of the unique features of the public adjusting profession, Appellant

is not similarly situated to the tradespeople to whom lie compares himself.

I
Therefore, there can be no disparate treatment of the Appellant in violation of the

equal protection provisions of the Florida and U.S. Constitutions.

The statute does not unconstitutionally deprive Appellant of the right to be

rewarded for his industry. Any such deprivation has been caused by Appellant's

own, voluntary business practices.

STANDARD OF REVIEW

As below, the Appellant steadfastly misapprehends the restrictions that the

Florida Legislature has imposed on public adjusters' solicitation techniques in the

constitutional exercise of its police power to regulate the conduct of professionals

practicing their profession in this state. A dogged persistence in the assertion that

this is purely a "commercial free speech" case does not make it so, especially when

that assertion is contravened by fact findings made by the lower court that are

supported by competent substantial evidence and come to this court clothed with a

presumption of correctness. This case does not come before this court for review

from a summary judgment, but from a bench trial in which testimony was taken

and exhibits admitted. The parties apparently agree that although review of the

statute, itself, is de novo, the fact circumstances accompanying the application of

the statute are not reviewed de novo, but are reviewed under the competent

substantial evidence standard and are presumed correct.

2
 ARGUMENT

THE CHALLENGED STATUTE DOES. NOT IMPOSE A COMPLETE BAN ON

COMMUNICATION, REGULATES CONDUCT AND NOT SPEECH, AND IS
CONSTITUTIONAL

The U.S. Supreme Court has held that when speech and nonspeech elements

are combined in the same course of conduct, a sufficiently important governmental

interest in regulating the nonspeech element can justify incidental limitations on

First Amendment freedoms, If the government regulation is within the

constitutional powers of the government, if the regulation furthers an important or

substantial government interest, if the governmental interest is unrelated to the

suppression of free speech, and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the furtherance of the

governmental interest, the governmental regulation is sufficiently justified to pass

constitutional muster. United Staes v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20

L.Ed.2d 672 (1968) Two recognized substantial governmental interests are the

promotion of ethical conduct on the part of those professionals who practice within

a stat&s boundaries, and the protection of the privacy of its citizens, particularly

after the occurrence of a calamity. Edenfield v. Fane, 507 U.S. 761, 113 S. Ct,

1792, 123 L. Ed. 2d 543 (1993); Florida Bar v, Went For It, Inc., 515 U.S. 618,

115 S. Ct. 2371, 132 L.Ed.2d 541.

3
 The Fourth bistrict Court of Appeal has recognized and followed the

teaching of O'Brien, supra. In State v. conforti, 688 So.2d 350 (Fla. 4DCA 1997),

rev, den. 697 So.2d 509, where the court observed that if a statute does not restrict

conduct because of the message it expresses, and is aimed at the

unoncoinmunicative impact of an act° then the law is "content neutral" and is

constitutional even as applied to expressive conduct, so long as it does not unduly

constrict the flow of information and ideas. State v. Conforti, supra, at 354. The

court then went on to apply the O'Brien test to the conduct at issue to decide

whether the statute there in question unduly constricted the flow of information

and ideas, and ultimately concluded that it did not. While the nude dancing conduct

at issue in Conforti, supra, is factually distinguishable from the conduct at issue in

the instant case, the test for determining the content neutral aspect of the instant

statute is the same as in Conforti, supra, and O'Brien, supra, to wit; does the

statute seek to restrict the message expressed within the conduct. If it does not do

so, it is content neutral. In the instant case the statute does not seek to restrict any

message content, and both Mr. Altieri and Mr. Kortum testified that the statute IIcI

not change the content of the messages they conveyed to the public about their

services. (Tr. Vol. I, 98-100; Vol. 2, 175-176)The statute is thus content neutral on

its face and as applied to the Appellant, to Mr. Altieri, and other public adjusters.

4
 Moreover, in Consolidated Edison Company of New York, Inc., v. Public

Service Commission of New York 447 U.S. 530, 100 S. Ct. 2326,65 L.Ed. 2d 319

(1980), the court recognized the constitutional validity of reasonable time, place, or

manner regulations on commercial speech that serve a significant governmental

interest and leave ample alternative channels for communication. It is oniy when

the content of the speech is being regulated that that the governments regulation

must be subjected to careful scrutiny review rather than the rational relationship

standard. Consolidated Edison, supra, at 447 U.S. 537.

Against the backdrop of that established case law let us consider the statute

under consideration. Section 626.854 (6), Fla. Stat., reads as follows:

A public adjuster may riot directly or indirectly

through any other person or entity initiate contact
or engage in face-to- face or telephonic solicitation
or enter into a contract with any insured or claimant
under an insurance policy until at least 48 hours
after the occurrence of an event that may be the
subject of a claim under the insurance policy unless
contact is initiated by the insured or claimant.

Thus, what the statute regulates and restricts for only 48 hours is the direct

or indirect establishment, through any other person or entity, of face-to-face or

telephonic contact between a public adjuster and an insured or a claimant for

solicitation purposes, and the time of entry into a contract between the parties,

unless the insured or claimant directly or indirectly initiates the face-to-face or

5
telephonic contact with the public adjuster. What the statute does not regulate or

restrict is: contact initiated by a public adjuster after the expiration of 48 hours;

contact and subsequent contract entry initiated by an insured or claimant; contact

and subseqiient contract entry initiated by written or electronic means, entry into a

public adjuster's contract after the expiration of 48 hours, or the actual content of

any speech exchanged between the public adjuster and the claimant. Thus, a public

adjuster is free to solicit claimants or insureds within 48 hours via electronic or

written means, and may engage in solicitation if contact is initiated by the claimant

or insured. All that is regulated by the statute is the conduct of face-to-face and

telephonic solicitations, and those limitedly selected solicitation modes are

regulated for a period of only 48 hours. Thus, it is the conduct of public adjusters,

and not their speech, that is being directly regulated by the statute.

Moreover, the statute does not seek to regulate that conduct simply because

of the messages expressed by public adjusters as to the value or advisability of

their professional services, nor does the state contend that the speech of public

adjusters is related to an unlawftil activity or is inherently misleading. Even the

instant Appellant does not contend that the statute seeks to suppress the content of

any speech by public adjusters. The statute merely seeks to regulate their personal

conduct during the first 48 hours following a homeowners calamity, a regulation

6
allowed under O'Brien, and Conforti, and which does not offend the regulation of

speech standards pronounced in consolidated Edison, supra.

The department's construction of the statute which allows written and

electronic contact within 48 hours of a claims producing event is supported by

comments made and amendments approved at the November 16, 2007 Citizens'

Task Force meeting, found on-I inc at http/taskforceoncitizensclaimshandling.

org/workshop.htm, "Videos", Part I, at 36 minutes and 40 seconds. It is also

supported by Terry Butler's testimony at the bench trial below. (Tr. Vol. 2, 240-

242, 244-245, 247 ) In furtherance of that construction, the department is presently

in the process of promulgating an administrative rule to that effect. (R. Vol. 4, 623-

638)

In contrast, the Appellant's construction of the statute, developed with the

assistance of his employer and their counsel and without any consultation with the

department (Tr. Vol. I, 91-94, 151; R. Vol. 4, 750-759, Stipulated Facts 7, 8, 9),

which contends that the statute imposes a total ban on all communication between

a public adjuster and an insurance claimant within 48 hours after a claims

producing event, is supported only by the argument of counsel, and that argument

is defective. That argument ignores and gives no meaning or effect to the words

"through any other person or entity". A written or electronic communication is not

a "person or entity". Thus, the statute places no restrictions on and imposes no

7
regulation on written or electronic communication between insurance claimants

and public adjusters. That was the purpose of the arnendatory language about

which Terry Butler testified at the November 16, 2007 Task Force meeting and at

trial, below. It is only by ignoring the words "through any other person or entity"

and thereby giving them no force or effect that the Appellant can argue that the

statute imposes a total ban on all communications for 48 hours. Such a practice is

contrary to well established principles of statutory construction that require force

and effect be given to every word of a statute. Florida Dept. of Revenue v. Florida

Mun. Power Agency, 789 So.2d 320 (Fla. 2001); Kirby Center of Spring Hill v.

State, Dept. of Labor and Employment Sec., Div. of Unemployment Compensation,

650 So,2d 1060 (Fla. 1st DCA 1995), and Gore Newspaper Co. v. Department of

Revenue, 398 So.2d 945 (Fla. 4th DCA 1981), cited by Appellant at page 18 of his

Initial Brief. Therefore, the Appellant's contention that the statute imposes a total

ban on all communication between a public adjuster and an insurance claimant

within 48 hours of a claims producing event must be disregarded.

The statutory regulation in question is in the furtherance of a public adjuster's

ethical responsibilities and the privacy interests of persons who have just

experienced a calamity, both of which are recognized, legitimate governmental

interests. Florida Administrative Rule 69B-220.20l(3)(l), states, in pertinent part:

An adjuster shall not attempt to negotiate with or

obtain any statement from a claimant or witness

8
 at a time that the claimant or witness is, or would
reasonably expected to be, in shock or in serious
mental or emotional distress as a result of physical,
mental, or emotional trauma associated with a loss.

This rule is designed to prevent unethical public adjusters from taking undue

advantage of traumatized persons who are having to simultaneously deal with such

concerns as the loss of or injury to loved ones, the loss of substantial personal

property, the matter of having to relocate the family, the question of continuing

danger to family members, the presence of and questioning from police and fire

officials, the matter of securing the premises, deciding whether to relocate or

remain in residence, how to continue the operations of the business if a commercial

property is involved, and other such overwhelming concerns. In this same regard, it

is noteworthy that the Code of Ethics promulgated by the Florida Association of

Public Insurance Adjusters, as well as the National Association of Public Insurance

Adjusters' Code of Conduct (Department's Exhibits 6, 7) each require its members

to "refrain from improper solicitation". (R. Vol. 4, 75 0-759, Stipulated Facts 56,

57) Forcing the afflicted homeowner or business owner to fend off multiple and

contentious public adjusters eager to gain a contract at such a time and under the

circumstances of a calamity places an undue burden on that homeowner or

business owner. An ethical public adjuster would not seek to take advantage of the

emotionally embattled homeowner or business owner at such a time and under

9
such circumstances simply to gain a contract entitling them to a portion of the

homeowner's insurance proceeds. However, unethical public adjusters do so. In his

testimony, the Appellant; to his credit, candidly and freely admitted that

solicitation conduct of the type here at issue was improper solicitation (R. Vol. 4,

665-670; R. Vol. 4, 750-759, Stipulated Fact 58), and there was no contention by

the Appellant that the statute attempts to regulate the actual content of any

message that a public adjuster might wish to communicate to a homeowner or a

business owner regarding the advisability of his or her services. (R. Vol. 1, 43-55)

Succinctly put, the statute does not seek to suppress the actual speech content of

public adjusters solicitation efforts, and the Appellant did not so contend in his

pleadings. (R. Vol. 1, 43-5 5) What is regulated is a type of solicitation conduct by

public adjusters that even the Appellant admits offends the published and self

imposed ethical solicitation standards required of public adjusters. (R. VoL 4, 758;

Stipulated Fact 58.) Under O'Brien, supra, this is permissible regulation.

Thus, to state the matter succinctly, what is being regulated by the statute is

not the speech of ethical public adjusters but the conduct of unethical public

adjusters. The conduct in question would be just as pernicious if the public

adjuster was continually on the damaged premises or on the phone to the claimant

giving his or her protracted views of who would win the next Super Bowl in an

attempt to solicit funds to place a Las Vegas wager, and never uttered a single

10
word relative to solicitation for a contract. It is the burdensome distraction caused

by the unending attempts of unethical public adjusters to contract with the

homeowner or business owner immediately after a calamity, and not the message

of how the public adjuster could be of assistance in the appropriate adjustment of a

claim, that is being regulated. The statute thereby promotes the ethical behavior of

public adjusters practicing their profession with the state of Florida, and regulates

the conduct of those public adjusters who are not so ethical. This is a recognized

substantial governmental interest. Edenfleld v. Fane, 507 U.S. 761, 113 S. ct.

1792, 123 L. Ed. 2d 543 (1993); Florida Bar v. Went For It, Inc., 515 U.S. 618,

115 S. Ct. 2371, 132L,Ed,2d 541.

Similarly, the statute protects the privacy of persons who have just suffered a

calamity. If ever there is a time in the life of an individual when privacy is needed

to help make rational decisions directly affecting the well being of life and limb, of

person and property, and the well being of dependents and loved ones, it is

immediately after a calamity. The tranquility of mind needed to soundly make such

decisions should not be shattered by the ceaseless badgering of one or more

contentious public adjusters eager to gain a contract amidst the turmoil of a

calamity. Similarly, telephonic privacy is needed to allow the homeowner to

contact friends and family members, insurance claims offices, hospital personnel,

professional service providers, and others needed to assist in decision making. The

11
Plaintiffs own solicitation letters, delivered days after the occurrence of a loss,

recognize the emotional turmoil involved with calamitous losses. (Defendant's

Exhibits 2, 3 one of which states in the opening sentence, "It is impossible to

comprehend the emotional devastation that follows a loss such as yours.") That

letter is sent by Appellant via U.S. mail, to calamity victims days afterwards. (Tr,

Vol. 2, 171) If the emotional devastation is still there days after the calamity, how

much more is it there right after the calamity has occurred, and how much more is

privacy then needed? That privacy cannot be secured amidst a seemingly never-

ending, face-to-face or telephone solicitations from public adjusters. Once again, it

is not the speech but the conduct of public adjusters relative to an individual's need

for privacy in the face of a crisis that is being regulated. Thus, the statute is content

neutral regarding the speech content of public adjusters' solicitation attempts

Conforti, supra, and the protection of an individual's privacy during such moments

is a recognized substantial governmental interest. Florida Bar v. Went For It, Inc.,

515 U.S. 618, 115 S. Ct. 2371, 132 L.Ed.2d 541.

Therefore, it should be concluded that the challenged statute meets the

O'Brien test for statutes that incidentally limit speech where the governmental

interest is not the suppression of free expression but the promotion of ethical

behavior by public adjusters and the protection of the privacy interests of

individuals who have just experienced a calamity. Moreover, the brevity of the

12
temporal limitation on the conduct in question, coupled with the allowance for

written or electronic means of solicitation by public adjusters, and the provision for

a claimant or insured to self-initiate contact with a public adjuster, demonstrates

that the statute has been narrowly drawn to accomplish its non-speech objectives in

a manner no greater than needed to do so. Thus, the instant statute is unlike the

regulations examined in Central Hudson Gas & Electric CorporatiOn v. Public

Services Commission of New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L..Ed. 2d

341 (1980), which imposed a total ban on all written advertising, or in Insurance

Adjustment Bureau v. Insurance Commissioner for the Commonwealth of

Pennsylvania, 518 A. 2d 1317 (Penn. 1988), which imposed a total ban on all

public adjuster solicitation for 24 hours after a disaster or fire, or in Consolidated

Edison company of New York, Inc., v. Public Service Commission of New York

447 U.S. 530 100 5. Ct. 2326, 65 L.Ed. 2d 319 (1980), which placed a total ban on

placing written inserts discussing controversial issues of public policy into monthly

utility bills, or in Edenfleld v. Fane, 507 U.S. 761, 113 5. Ct. 1792, 123 L. Ed. 2d

543 (1993) which imposed a total and perpetual ban on direct, in-person
solicitations by Certified Public Accountants, The instant statute's limited
regulation of conduct is also unlike the factual scenario in Francis J Ducoin,

D.D.S., et al v. Dr. Ana M Viamonte Ros, etc. Case No. 2003 CA 696 Second

Judicial Circuit, order filed April 3, 2009, relied on below by the Appellant, in

13
which the actual speech content of an advertisement was being statutorily

regulated. The narrow drawing of the instant statute, the exemptions it makes for

both written and electronic modes of communication, the exemption it provides for

contact initiated by the insured, the limited temporal existence of the ban, and the

regulation of conduct where the effect on free commercial speech is incidental,

establishes its constitutional status. United States v. O'Brien, 391 U.S. 367, 88 S.

Ct. 1673, 20 L.Ed.2d 672 (1968).

As also required by O'Brien, supra, the statute is certainly within the

constitutional authority of the state legislature to enact. Florida case law has long

acknowledged the state's police power to regulate the insurance industry, agents

and adjusters. As far back as 1936 the Florida Supreme Court observed:

"It would be difficult to find a business that more

vitally affects the public interest than the insurance
business..." State cx rel Kennedy v. Knott, 166 So.
835, 837 (Fla.1936)

On the basis of that public interest, the legislature requires that insurance
companies, agents, and adjusters be licensed and regulated in the conduct of their

profession by the state, and the instant statute is in furtherance of the public's

interest in the regulation of the conduct, not the speech, of public adjusters. Again,

the statute meets the O'Brien test for constitutionality in all pertinent regards.

Because the challenged statute regulates conduct and meets all O'Brien tests

for constitutionality, the Appellant's "commercial free speech" analysis of the same

14
is inapposite and thus obviates detailed refutation. The case authorities relied on by

Appellant simply are not pertinent to determining the constitutionality of a statute

that regulates conduct and only incidentally affects speech. O'Brien is the standard

by which such statutes are adjudged.

Likewise, the Appellant's reliance on such "authorities" as the OPPAGA

study (Plaintiffs Exhibit 6) and the Citizens Task Force report is inapposite to the

constitutional question at bar; neither deal with constitutional issues but are

confined to statistical analyses. Additionally, Appellant overlooks the fact that the

Task Force report and the OPPAGA review thereof were limited to a survey of the

claims experiences of Citizen's Property Insurance Corporation (established by

Section 627.351(6), Fla. Stat.), subsequent to the 2004-2005 hurricane seasons.

Neither publication addressed the claims experiences of remaining 75% of the

property and casualty market carriers either before or after that time period.

The Appellant's contention that the permissible usage of written

communications between public adjusters and insurance claimants within 48 hours

of a claims producing event leads to absurd results (Initial Brief, pgs 20-21) is

conjectural and has no support in the record. Moreover, the claimed absurdities are

easily dismissed by an application of common sense and a correct reading of the

statute. More specifically, an e-mail is not a "person or other entity", so

communication through that medium does not offend the statute. If the public

15
adjuster comes upon a claimant while in the process of leaving written material on

the premises, simply smile, say °good morning/afternoonlevening/thank you", as

appropriate, and leave. The departure can later be easily explained to the claimant.

Even the Appellant, himself, conceded that whatever awkwardness might

accompany that procedure did not render the statute unconstitutional. (Tr. Vol.2,

163-164) If the claimant calls the public adjuster within 48 hours of the claims

producing event in reaction to a written communication from the public adjuster, it

is the claimant who initiated the telephonic communication, which the statute

specifically allows. This contention is no more than a complaint that the temporary

limitation of face-to-face and telephonic communication will make his job

somewhat more difficult, which difficulty renders the statute constitutionally

infirm. Such contentions have been rejected by the courts in cases such as Fuller

v. Watts, 74 So.2d 676 (Fla. 1954), where the announced standard is an undue

hardsh,o. The Appellant has made no showing of an undue hardship, so this entire

argument is without merit. Moreover, the reality of the matter is that the claimed

hardship is a self-imposed refusal to utilize written and electronic communications

to approach claimants (Tr. Vol. 1, 10 1-103; Vol. 2, 154-155, 190-192), and a

pronounced but inexplicable recalcitrance to solicit claimants when repair

contractors are present. (Tr. Vol. 2, 156-159, 162).

16
 Appellant relies on the testimony of Mr. Ray Altieri to establish certain of

Appellant's contentions.(Initial Brief pgs, 32-33) However, the Appellant fails to

inform the court that Mr. Altieri was not a party to this proceeding below, was not

offered as an expert witness, and at trial failed to demonstrate that he had any

personal knowledge of any of the Appellant's allegations. He is a public adjuster

who lives and practices in Tampa, whereas the Appellant practices in the greater

Orlando and east central area of the state. (Tr. Vol. 1, 35; R. Vol. 4, 750-759,

Stipulated Fact 16) His testimony as a fact witness was erroneously admitted over

strenuous objection by the Appellee (Tr, Vol. 1, 42-47; R. Vol. 5, 824-826), and

during cross examination he was forced to admit that his testimony was based on

what others had told him (Tr. Vol. 1, 103-107), rendering that testimony

inadmissible hearsay. His testimony purportedly in support of the Appellant's

allegations should not have been admitted, does not appear to be the basis for any

finding of fact made in the Final Judgment under review, and should be
disregarded by this court to the extent that Appellant attempts to use it to establish

a "record fact".

Finally, on this point, there is competent substantial evidence in the record to

support the conclusion that the first 48 hours are not critical to the claims process,

contrary to Appellants assertions. That evidence is in the form of testimony from

the Department's expert, Mr. Daniel Montgomery. (Tr. Vol. 2, 25 7-259, 263-267,

17
270-271; Defendant's Exhibit 5) Moreover, as both Appellant and Mr. Altiei

admitted, insurance claims are rarely if ever settled within 48 hours after a claims

producing event, and the statute of limitations for resolution of insurance claims is

five years, during which any claim can be re-opened. (R. Vol. 4, 750-759,

Stipulated Facts 33, 34; Tr. Vol. 1, 111-112; Tr. Vol. 2, 162-163, 166) Those

admissions, from the Appellant and the Appellant's own witness, belie the

Appellant's contention of the "critical" nature of those first 48 hours to the claims

adj ustinent process.

ARGUMENT

II. THE CHALLENGED STATUTE DOES NOT DENY APPELLANT EQUAL

PROTECTION OF THE LAW

In Count Three of the amended and corrected Complaint (R. 43-5 5), the

App ellant sought strict scrutiny review foi' violation of equal protection tenets, but

did not establish either disparate treatment or an infringement of fundamental

rights. The federal and Florida constitutions require the presence of both, among

other things, to establish an equal protection claim. The Florida High School

Activities Ass'n, Inc. v. Thomas By and Through Thomas, 434 So.2d 306 (Fla.

1983).

The United States Constitution provides that "no state shall.. .deny to any

person within its jurisdiction the equal protection of the laws. U.S. Const. Amend.

XIV, § 1. Analogously, the Florida Constitution says that "all natural persons,

18
female and male alike, are equal before the law." Fla. Const. Art. I, § 2. The Equal

Protection clauses do not prevent a state legislature from exercising its authority in

a constitutional manner; they only prohibit the abuse of such authority. West

Flagier Kennel Club, Inc. v. Florida State Racing Commission, 153 So.2d 5 (Fla.

1963). Among the Florida legislature's constitutional authority is the power to

make non-arbitrary and non-discriminatory statutory classifications. Grant v. State,

770 So.2d 655 (Fla. 2000).

It is true that the constitution requires that all similarly situated people be

treated alike. Ocala Breeders Sales Co., Inc. v. Florida Gaming Centers, Inc., 793

So.2d 899 (Fla. 2001). The Appellant asserts that he is similarly situated to other

businesses that respond to catastrophic losses, such as roofers, smoke-mitigation

experts, and cleaning services. The Appellant, however, admits that none of those

other business provides the same services a public adjuster provides (R. Vol. 1, 62-

71, Answer 15) Unlike company adjusters or independent adjusters, public

adjusters become contractually entitled to receive a percentage of a homeowner's

insurance claims proceeds (R. Vol. 1, 62-7 1, Answer 9; Tr. Vol. 2, 258, 274, 285-

288) Additionally, of the businesses to which Appellant compares himself, only

public adjusters require the claimant to sign a contract that requires the claimant to

name the public adjuster as a co-payee on every claims proceeds check, and it is

standard practice for the public adjuster to require the claimant to sign a document

19
requiring the insurance carrier to send all proceeds checks to the public adjuster,

not to the claimant. (R. Vol. 1, 98; R. Vol. 4, 665-666, 750-759; Stipulated Fact 41;

Tr. Vol. 2, 274-275) Further, unlike the others to whom lie compares himself, a

public adjuster is the only one offering a service exclusive of goods.

The Appellant also maintains and admits that among all those to whom lie

compares his profession, only a public adjuster stands in a fiduciary relationship to

the claimants. (R. Vol. 4, 750-759, Stipulated Facts 36, 37). Moreover, the

Appellant advertises his work as a professional service performed by experts, and

not mere tradespeople, (R. Vol. 4, 750-759 Stipulated Facts 18, 26, 27; Defendant's

Exhibits 1,4)

Additionally, in his complaint the Appellant acknowledges the many DFS

regulations unique to the field of public insurance adjusting, including those which,

by felony penalty, prevent unlicensed individuals from usurping his profession's

role. See, Section 626.8738, Fla. Stat. He does not challenge those protective

regulations. The Appellant should not be allowed to benefit from the state's

recognition and protection of his profession's unique expertise and experience

while simultaneously arguing for equal protection purposes that he should be just

as unregulated as a cleaning service that could be hired even in the absence of an

insured loss.

20
 The Appellant argues that public adjusters are similarly situated to insurance

company adjusters, which are not subject to a 48-hour rule. However, the

Appellant ignores the fact that the insurance company already has a contractual

relationship with the homeowner that obligates the insurance company to provide

an adjuster to expeditiously evaluate the loss, and to then compensate the

homeowner accordingly. No deductions from the claims proceeds are taken to

compensate the company adjuster for his or her services. In contrast, public

adjusters form new business relationships with homeowners following insured

losses, and contractually require that their compensation come from the claims

proceeds. (R. Vol. 1, 72-78, Admissions 9, 10) Moreover, as pointed out in Mr.

Montgomery's un-refuted testimony, while the tradespeople to whom Appellant

compares himself may eventually, through judicial process, acquire real property

lien rights to secure payment for their services, it is only the public adjuster that is

contractually entitled to insert him/her self into the money stream between the

carrier and the insured, thus giving the public adjuster significant leverage power

over the insured, an attribute not shared by the tradespeople. (Tr, Vol. 2, 258-259,

274, 285-288)

Additionally, Appellant concedes that many policyholders are not

knowledgeable about their insurance contracts, and coverage and claims filing

procedures (R. Vol. 4, 750-759 Stipulated Fact 21), while public adjusters hold

21
them selves out to be professionals and experts in those areas

(Defendant's/Appelle&s Exhibits 1, 4), who have the requisite training and

experience and are qualified to prepare, complete, and file insurance claims on

behalf of claimants, advise the claimants about their policies, and explain coverage

issues, policy limits, exclusions and rights under their policies. (R. Vol. 4, 750-759,

Stipulated Facts 18, 24, 25, 26, 27) Thus, the "playing field" is heavily tilted in

favor of public adjusters who are licensed, trained professionals intimately familiar

with insurance contracts and insurance claims issues and procedures, who because

of that superior knowledge can easily persuade an otherwise reluctant claimant into

contracting with them while in a distressed state of mind shortly after suffering a

calamity, which superior knowledge is equivalent to an attorney's training in the

"art of persuasion" that the court found an acceptable reason for limiting lawyers'

access to calamity victims in Ohralik v. Ohio State Bar Association, 436 U.S. 447

(1978). The same rationale applies here, where the legitimate government purpose

to be served is the protection of the privacy interests of those who are suffering

from the effects of a recent calamity.

Essentially, a close analysis shows that the Appeflanfs services are easily

distinguishable from the services offered by the tradesmen to whom the Appellant

compares himself, and arise under circumstances far different from those attendant

to adjustment services provided by company adjusters or independent adjusters.

22
The Appellant, himsclf has expressed these distinctions in his Responses to

Department's Admission Requests 6, 7, 8, 13, and 15, (R. Vol. 1, 79-94) and in his

response to the Department's Request For Production No. 2 (R. Vol. 1 72-78), as

well as in his pre-trial deposition testimony. Thus, not only has the Plaintiff failed

to show that his profession is similarly situated to, but regulated differently from,

others of the same classification, but he repeatedly insists that his profession is

insular and distinct from the other tradespeople to whom he compares his

profession. Absent the showing of disparate treatment of a member of the same

classification (the existence of which the Plaintiff, himself, denies) the instant

regulation applied to public adjusters must be seen as a constitutional classification

made by the legislature as an addition to the extant comprehensive statutory

scheme regulating public adjusters.

When a challenge to a legislative classification on Equal Protection grounds

arises, the court must first determine the appropriate standard for judicial review.

B,S. v. State, 862 So.2d 15, 18 (Fla. 2 DCA. 2003). The three judicial standards

that apply to Equal Protection challenges are 1) rationality review, 2) intermediate

scrutiny, or 3) strict scrutiny. Id. For strict scrutiny, the most discerning level of

review, to apply to a statutory classification, the legislation must either

significantly impinge on fundamental constitutional rights or primarily burden

certain groups that have been the traditional targets of irrational, unfair, and

23
unlawful discrimination. The Florida High School Activities Ass'n, Inc. v. Thomas

By and Through Thomas, 434 So.2d 306, 308 (Fla. 1983).

The United States Supreme Court has considered very few groups to be

suspect classes, including only victims of classifications based on race, alienage,

and national origin. City of Cieburne, Tex. v. Cieburne Living Center, 473 U.s.

432, 440 (1985). Clearly, public insurance adjusters are not considered a suspect

class, so the only way for strict scrutiny to apply is if their fundamental rights have

been significantly restricted. Therefore, the party challenging a statutory

classification on equal protection grounds has the burden of proving that it is

arbitrary, discriminatory, and unreasonable. Lite v. State, 617 So. 2d 1058, 1060

(Fla. 1993). As shown above, the appellant has failed to carry this burden. The

Appellee has explained how the Appellant's right to protected commercial speech

has not been unconstitutionally or unduly restricted. The Appellant may, within the

48 hours in question, still communicate with prospective customers via written and

electronic means, and can do so in person and by telephone if the homeowner

initiates the contact, and then enter into a contract with the homeowner. Only the

Appellants ability to engage in constitutionally unprotected conduct has been

directly regulated, and even that has only been regulated for 48 hours. The effect of

this regulation on free commercial speech is merely ancillary to the regulation of

conduct by means that satisfy the O'Brien test for constitutionality. The Appellant

24
is still free to engage in unrestrained truthful commercial speech by written or

electronic means even within the 48 hours following an insured loss.

The Appellant complains that the 48 hour limitation in question works a

hardship on him but not on others. However, equal protection of the laws is not

denied merely because a regulation works an inconvenience or hardship, provided

the regulation is reasonable. Fuller v. Watts, 74 So.2d 676, 678 (Fla. 1954). (If

mere hardship were to be the standard for determining the constitutionality of a

regulatory statute, none would pass muster because every regulatory statute

inherently burdens and visits some degree of hardship upon the regulated party.)

The Plaintiff may be inconvenienced in that he must now deliver written or

electronic solicitations within the first 48 hours after a claims-producing event

rather than drive to the scene or call the victims, but that inconvenience is

constitutionally permissible. Using the lowest judicial standard of review for this

type of legislative classification, the 48-hour rule passes the rational basis test as a

constitutional act by the legislature.

ARGUMENT

III. THE STATUTE HAS NOT DEPRIVED APPELLANT OF HIS RIGHT TO

BE REWARDED FOR HIS INDUSTRY. APPELLANT DID THAT TO
HIMSELF

The Plaintiff alleges that his fundamental rights to benefit from his industry

and to acquire, possess, and protect property under Art. I, §2 of the Florida

25
Constitution and his right to free speech under Art. I, §4 of the Florida Constitution

have been violated. However, since, under O'Brien., supra, no right to free speech

has been violated, strict scrutiny will only apply if a Plaintiff's rights to benefit

from his work and to acquire, possess, and protect property are violated.

According to the Appellant's own sworn testimony, he was unable to provide

an estimate of the financial damages he has allegedly incurred since the effective

date of the 48-hour restriction. (Tr. Vol.2, 160-162) He admitted that his business

has suffered no identifiable monetary damages, and that the only perceived

difference in his business is the fewer number of potential clients that he contacts.

(Tr. Vol. 2, 160-161) The Appellant further admitted that the decline in

prospective clients may be attributed to a two-fold increase in the number of

Florida public adjusters working in his area since the 2004 hurricane season. (Tr.

Vol.2, 165) The Appellant could not think of any clients who would have

contracted with him but for the 48-hour rule. (Tr. Vol. 2, 162 ) The Appellant has

not attempted electronic or written solicitations within the relevant 48 hours since

the effective date of the challenged statute. (R. Vol. 1, 79-94, Admission 1; Tr.

Vol. 2, 154l55) Appellant had some success in contracting with claimants via

written solicitation prior to the effective date of the challenged statute. (Tr. Vol.2,

152-153) The Appellant admitted that his success rate in securing contracts has

remained essentially unchanged from the time period prior to the effective date of

26
the statute. (Tr. Vol. 2, 155-156) It is the Appellants own construction of the

statute, and not anything told to him by the department, through which he has

restricted himself from reaching more potential clients via written communications

(Ti'. Vol.2, 150-15 1), and even his self-imposed restriction has not led to an

identifiable decline in his profits. (Ti'. Vol.2, 159-16 1)

The Appellant also admitted to the practice of refusing any attempt at

solicitations when he observed repair contractors on the claimant's property,

although he could articulate no legal reason for that action, admitting that it was

simply his business practice to do so. (Tr. Vol. 2, 156-159) He testified that on that

basis he simply walked away from 21 potential contracts prior to the effective date

of the statute, and 37 potential contracts after the date of the statute, both of which

numbers are substantially larger (up to six fold) than the six contracts he claimed

he should have obtained (based on his statistical analysis) but for the statute. (Ti'.

Vol. 2, 158-159)

In view of the foregoing record facts, many of which were established

through Mr. Kortum's own testimony, it is not possible to see how he has been

prevented from benefiting from his efforts or from acquiring, possessing, and

protecting property. Any deprivation of those rights was self-inflicted. He could

not provide the court with anything other than a perceived decline in the potential

client base, something that he admitted could be attributed to general business

27
conditions not related to the 48-hour limitation, his own peculiar business

practices, and his own misconstruction of the statute. Since the Appellant cannot

show a violation of any of his fundamental rights in these regards, and is not a

member of a suspect class, and as the statute regulates conduct and not commercial

speech, the Court must review the 48-hour limitation using the rational basis test.

Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d 1090, 1095 (Fla. 2005).

The rational basis test requires that the classification be rationally related to

a legitimate state interest; in other words, there must be some reasonable

relationship to the achievement of a legitimate government purpose or objective.

State v. Bodden, 877 So.2d 680, 689 (Fla. 2004). When the rational basis test

applies to a statutory classification, the legislation is presumptively constitutional.

North Florida Women 's Health and Gounseling Services, Inc. v. State, 866 So.2d

612, 625 (Fla. 2003). It was Mr. Kortum's burden to prove that no conceivable

factual basis could rationally support the classification, and to negate every

conceivable basis that might support the classification. The Florida High School

Activities Ass'n, Inc. v. Thomas By and Through Thomas, 434 So.2d 306, 308 (Fla.

1983); Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 865 So.2d 590, 592

(Fla. 2nd DCA 2004). In response to the Appellant's contention in paragraph 18 of

the complaint (R. Vol. 1, 43-55) that "no testimony or other evidence was

presented to the task force or to legislators who considered the task force

28
recommendations to demonstrate that a 48-hour ban on early solicitation would

directly advance the state's goal of protecting the public," it must be acknowledged

that Florida case law establishes that any conceivable and rational basis that might

support the classification is enough to sustain the classification, regardless of

whether the basis has a foundation in the record. Fraternal Order of Police,

Metropolitan Dade Count, Lodge No. 6 v. Department qf State, 392 So.2d 1296,

1302 (Fla. 1980).

Applicable case law further states that:

"...the absence of record justification is not dispositive. As explained

by the Florida Supreme Court in Coy and Eastern Airlines, the state is
not obligated to demonstrate the constitutionality of the legislation.
The burden is instead upon the party challenging the legislation to
negate every conceivable rational basis which might support it. Coy
and Eastern Airlines are applications of longstanding decisional law
of the United States Supreme Court under which the judiciary extends
great deference to federal, state, and local lawmakers when reviewing
economic legislation under due process and equal protection
Principles where no fundamental right is impaired and no suspect
class is offended. This true presumption of constitutionality is a
paradigm of judicial restrain and an acknowledgement of separation
of power principles. As the Court has explained, "We refuse to sit as a
"superlegislature" to weigh the wisdom of legislation"... Whether the
legislature takes for its textbook Adam Smith, Herbert Spencer, Lord
Keynes, or some other is of no concern of ours. Ferguson v. Skrupa,
372 U.S. 726, 83 S. Ct. 1028, 10 L. Ed.2d 93 (1963), Thus, the party
challenging the legislation bears the burden of negating every
conceivable rational basis which might support it. Williamson v, Lee
Optical of Oklahoma, Inc., 348 U.S. 483, 75 S. Ct. 461, 99 L.Ed. 563
(1955). The absence of facts or evidence explaining the legislature's
purpose in enacting the statute is of no consequence, and it is entirely
irrelevant whether the conceived reasons actually motivated the
legislature. Federal Communications Comm iss ion v. Beach

29
 Communications. Inc., 508 U.S. 307, 113 S. Ct. 2096, 124 L.Ed.2d
211(1993). u Agency For Health Care Admin. v. Harneroff 816 So.2d
1145, 1149 (Fla, 1st DCA 2002), rev, den. 835 So.2d 266, cert
dismissed, 539 U.S. 973, 124 S. Ct. 14, 156 L.Ed.2d 680 (2003)

Two recognized substantial, and therefore rational and reasonable,

governmental interests in this case are the promotion of ethical conduct on the part

of those professionals who practice within a state's boundaries, and the protection

of the privacy of its citizens, particularly after the occurrence of a calamity.

Edenfleld v. Fane, 507 U.S. 761(1993); Florida Bar v. Went For It, Inc., 515 U.S.

618 (1995). Not only did the task force and legislature consider those interests, but

neither of them was required to do so because all that is required to sustain a

legislative classification under rational basis review is a conceivable, realistic basis

for the classification. The Edenfield, supra, and Went For It, supra, decisions

establish the realistic basis for the classification under review.

After determining whether a legitimate state interest exists, the court must

determine whether the legislation bears some reasonable relationship to that

legitimate state interest. The Florida Bar v. St. Louis, 967 So.2d 108, 121 (Fla.

2007). As the various sworn testimonies of victimized affiants and deponents

suggests (R. Vol. 4, 665-670), there is a reasonable relationship between protecting

citizens' privacy after a disaster and regulating the unethical conduct of public

adjusters who would push for a signed contract immediately after the disaster. To

prevent victims of catastrophe from being rushed into a decision in the midst of

30
losing valuable possessions, the legislation reasonably addresses the conduct of

public adjusters during the victims' most stressful hours. See, Depositions of

Janine Ann Lutz, Pedro Almeida, Diedre Flashman, and Maureen Williams,

admitted into evidence at (Tr. Vol.2, 304-305).

Therefore, in the absence of a suspect class or violation of fundamental

rights, it should be concluded that the rational basis test for constitutionality has

been met because the Appellant cannot successfully argue that no conceivable

basis exists for the 48-hour limitation. The Appellant is not, and does not claim to

be, a member of a suspect class, The Appellant cannot demonstrate any identified

violation of his rights to benefit from his industry or to acquire, possess, and

protect property under Article I, §2 of the Florida Constitution, except those he

imposed upon himself. The Appellant's free speech rights under Article I, §4 of the

Florida Constitution have not been violated, and the statute passes the 0 'Brien test

for regulation of non-speech conduct. The 48-hour rule is no different than any of

the non-discriminatory regulations currently governing public adjusters that work

to protect the public and to enhance public adjuster's adherence to ethical behavior.

Finally, the court must presume that, under the rational relationship test, the

statute is valid and constitutional, and must construe the statute to effect a

constitutional outcome whenever possible. Fla. Dept. of Revenue v. Howard, 916

So.2d 640, 642 (Fla. 2005). Any doubts regarding the legislation's constitutionality

31
must be resolved in favor of its constitutionality. Kass v. Lewin, 104 So.2d 572,

576 (Fla. 1958).

CONCLUS ION

Unless this legislation is so clearly unconstitutional as to erase all doubts, the

court must sustain the statute as a valid legislative act. The statute in question

regulates conduct unrelated to the suppression of free speech. It is content neutral

in its incidental regulation of speech. It furthers the important governmental

interests of promoting the ethical behavior of professionals practicing within the

state, and protecting the privacy of individuals who have just suffered a calamity.

The incidental restrictions on speech are no more than necessary to achieve the

objectives of ensuring ethical behavior by public adjusters and protecting the

privacy of calamity victims. And, it is within the constitutional power of the

legislature to regulate the conduct of public adjusters. On those bases, the statute is

clearly constitutional.

The Appellant failed to carry his burden of making a clear showing that his

profession is being singled out for treatment disparate from others similarly

situated. Indeed, the Appellant's own testimony and admissions establish the

uniqueness of his profession! There is a rational relationship between the statute

and its objectives of securing the ethical behavior of professionals practicing

32
within the State of Florida, and ensuring the privacy of its residents who have just

experienced a calamity. On those bases, the statute is constitutional.

The record evidence, much of it coming from Appellant's mouth, establishes

that any deprivation of his right to be rewarded for his industry was self-inflicted

and was not caused by the challenged statute.

The statute is constitutional, and the Court should so declare.

Respectfully bm &1,

Michae .Davi'son
Fla. Bar o. 191637
200 E. Gaines Street, 612 Larson Bldg.
Tallahassee, Fl. 32399
(850) 413-4178
Fax. (850) 488-6097
Counsel for the Department

CERTIFICATE OF SERVICE

I hereby certif' that a copy of the foregoing memorandum was forwarded by

U.S. mail to George Meros and arls Muniz at GrayR. .i in P.A., P.O. Box
11189 Tallahassee, Fl. 32302 this :. clay of A ,' st2OlO.

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Answer Brief of Appellee was typed in 14
point Times New Roman.

Michael H. avids

33