FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA
FREDERICK W. KORTUM,
Appellant,
v.
Case No. 1D1O-2459
L.T. Case No. 2009-CA-3926
ALEX SINK, in her capacity as
Chief Financial Officer and head
of the Department of Financial
Services for the State of Florida,
Appel lee.
INITIAL BRIEF OF APPELLANT, FREDERICK W. KORTUM
George N. Meros, Jr.
Florida Bar No. 263321
Carlos G. Muñiz
Florida Bar No. 535001
GrayRobinson, P.A.
Post Office Box 11189
Tallahassee, Florida 32302
Telephone (850) 577-9090
Facsimile (850) 577-3 3 Il
Attorneys for Appellant,
Frederick W Korturn
\255144\1 -#229921 vi
E-Copy Received Jul 19, 2010 2:19 PM

TABLE OF CONTENTS
TABLE OF AUTHORITIES
iii
PRELIMINARY STATEMENT
v
STATEMENT OF CASE AND FACTS
1
SUMMARY OF ARGUMENT
14
ARGUMENT
15
STANDARD OF REVIEW
15
I. The Statute Prohibits All Public Adjuster-Initiated Contact and
Solicitation for 48 Hours
16
A.The plain text of the Statute prohibits all public adjuster-initiated
contact, written and oral
17
B. Traditional canons of statutory interpretation support Plaintiffs
construction of the Statute
17
C. There is no legislative history to support the Department’s
interpretation
19
D.The Department’s interpretation of the Statute contradicts its
description of the Task Force’s draft legislative recommendations 19
E. The Department’s interpretation of the Statute leads to absurd
results
20
II. The Statute Violates Plaintiff’s Right to Free Speech 21
A.Because the Statute on its face regulates speech, the trial court
erred by applying the 0 ‘Brien standard
22
B.The correct standard for reviewing the Statute is the Central Hudson
standard
23
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i

C. The Department has not carried its burden of proof under central
Hudson
26
1. The Department failed to prove that public adjuster solicitation in
Florida causes actual harm
26
2. The Department failed to prove that the Statute is narrowly
tailored to meet the state’s objectives
30
3. This Court should follow the Pennsylvania Supreme Court’s decision
striking down a 24-hour public adjuster solicitation ban 34
4. The ‘lawyer cases” are inapposite
36
III. The Statute Violates Public Adjusters’ Right to Equal Protection. 40
IV. The Statute Violates Plaintiffs Right to be Rewarded for Industry.... 44
CONCLUSION
45
CERTIFICATE OF SERVICE
46
CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT .47
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jj

TABLE OF AUTHORITIES
Cases
Beclcwith v. Department ofBusiness and Professional Regulation,
667 So. 2d 450 (Fla.
1st
DCA 1996)
24, 25, 28, 29
Board of Trustees ofState University ofNew York v. Fox,
492 U.S. 469 (1989)
30,31
Bowen v. Georgetown University Hospital,
488 U.S. 204 (1988)
16
Central Hudson Gas & Electric C’orp. v. Public Service Comm ‘n ofNew York,
447 U.S. 557 (1980)
passim
Craigmiles v. Giles,
312 F.3d 220
(6th
Cir. 2002)
43
Department ofEducation v. Lewis,
416 So. 2d455 (Fla. 1982)
24
Drake v. Walton County,
6So.3d717(Fla.
1t
DCA2009)
15
Edenfield v. Fane,
507 U.S. 761 (1993)
passim
Florida Bar v. Went-For-It, Inc.,
515U.S.618(1995)
24,36,40
Fraternal Order ofPolice v. Department ofState,
392 So. 2d 1296 (FIa. 1980)
44
Gore Newspaper o. v. Department ofRevenue,
398 So. 2d 945 (Fla.
4th
DCA 1981)
18
Insurance Adjustment Bureau v. Insurance Commissioner,
542A.2d1317(Pa. 1988)
25,34,35
Jacques v. Department ofBusiness and Professional Regulation,
15 So. 3d 793 (Fla.
1st
DCA 2009)
42
Leisure Resorts, Inc. v. Frank I Rooney, Inc.,
654 So. 2d 911 (Fla. 1995)
17
Level 3 Communications, LLC v. Jacobs,
841 So. 2d 447 (Fla. 2003)
42
Mason v. The Florida Bar,
208 F.3d 952 (1
1th
Cir. 2000)
30
New York State Ass ‘ii ofRealtors, Inc. v. Shaffer,
27 F.3d 834 (2d Cir. 1994)
28
\255144\1 -#22992! vi

Ohraiik v. Ohio State Bar Association,
436 U.S. 447 (1978)
36, 37,38
Pearson v. Edgar,
153F.3d397(7 t1 Cir. 1998)
25,33
Pruett v. Harris County Bail Bond Bd.,
499 F.3d 403
(5th
Cir. 2007)
25, 29, 32
Rubin v. Coors Brewing Co.,
514 U.S. 476 (1995)
30
State v. Bradford,
787 So. 2d81l (Fla. 2001)
22, 24, 36
State v. Conforti,
688 So. 2d 350
(4th
DCA 1997)
23
Sullivan v. Florida Department ofEnvironmental Protection,
890 So. 2d417 (Fla.
1s tDCA2004)
16
Thompson v. Western States Medical Center,
535 U.S. 357 (2002)
14,25
United States v. 0 ‘Brien,
391 U.S. 367 (1968)
12,21,22,23
Westerheide v. State,
831 So. 2d93 (Fla. 2002)
42
Statutes
§
626.854(5), Fla. Stat. (2009)
5, 3 1
§
626.854(6), Fla. Stat. (2009)
1, 6
Other Authorities
Merriam Webster ‘s Collegiate Dictionary,
]j1’1
Ed. (2009) 17
Task Force of Citizens Claims Handling & Resolution, Proposed Public Adjuster
Legislation 10-05-07
20
Task Force of Citizens Claims Handling & Resolution, Public Adjuster Legislation
Final Draft 11-20-07
7, 19
Constitutional Provisions
Art. I,
§
2, Fla. Const
1, 44
Art. I,
§
4, Fla. Const
1
Laws of Florida
Ch. 2009-87,
§
15, Laws of Fla
27
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iv

PRELIMINARY STATEMENT
On appeal, Appellant, Frederick W. Kortum, will be referred to as
“Plaintiff.” Appellee, Alex Sink, in her capacity as Chief Financial Officer and
head of the Department of Financial Services for the State of Florida, will be
referred to as “the Department.”
Reference to the record on appeal shall be by “R” followed by the volume
number and page number(s), e.g., (Rl25-26).
Reference to the trial transcript, contained within two volumes, shall be by
“TT” followed by the page number(s), without regard to volume number, e.g., (TT
145).
Reference to the trial exhibits shall be by “P1. Ex.” or “Def. Ex.” followed
by the exhibit number, e.g., (P1. Ex. 6).
All emphasis is supplied unless otherwise indicated.
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v

STATEMENT OF CASE AND FACTS
This case presents the question whether the state may impose a substantial
restriction on public insurance adjusters’ commercial speech in the absence of any
evidence that the state’s restriction alleviates a real harm.
Plaintiff Frederick W. Kortum (“Plaintiff”), a licensed public adjuster, filed
this lawsuit alleging that Section 626.854(6), Florida Statutes (the “Statute”),
violates his rights under the Florida Constitution to free speech, to equal protection
of the laws, and to be rewarded for his industry. See Art. I,
§
2, 4, Fla. Const. As
a licensed public adjuster, Plaintiff is part of a profession that has been recognized
in Florida for more than 50 years and that has grown significantly this decade.
(R4-752). Defendant Alex Sink is the agency head of the Department of Financial
Services (the “Department”), which regulates public adjusters and is tasked with
enforcing the Statute.
The Statute provides as follows:
A public adjuster may not 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.
Since the Statute took effect, Plaintiff has not initiated contact with or initiated
solicitation of any claimant during the first 48 hours after a claim-inducing event.
(R4-75 1).
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1

Plaintiff presented evidence that the Statute’s restrictions have harmed his
business and made the practice of his business more difficult. (TT 139). Plaintiff
testified that face-to-face solicitation is the most effective. (TT 212-13). Plaintiff
further testified that policyholders are much more difficult to locate after the first
48 hours of an event, since many will have moved to temporary housing by then.
(TT 184-85; 192).
The Role and Services of a Public Adjuster
Plaintiff presented evidence that the Statute’s restrictions apply during a
critical time for insurance policyholders. In the first 48 hours after a claim-
inducing event (e.g., a fire or a hurricane), the policyholder might be contacted by
the insurance company adjuster, cleaning services, contractors, roofers, and smoke-
mitigation or water damage inspectors. (R4-752). As the Department stipulated,
under Florida law, all of these persons and entities “may freely approach
policyholders in the immediate aftermath of claim-producing events.” (R4-572).
A key role of the public adjuster during this period (should the policyholder
choose to hire one) is to help the policyholder make important decisions that could
directly affect his financial recovery under his insurance policy. (TT 48). For
example, the public adjuster advises the policyholder on how to avoid
unnecessarily spending on mitigation and restoration efforts that are either overly
aggressive or that are disproportionate to the policyholder’s likely recovery. (TT
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2

63, 80). The public adjuster also helps the policyholder preserve evidence of any
damaged property and even to find such property, which might be difficult to
locate in the wake of a disaster, and which the policyholder must preserve in order
to prove and be compensated for a loss. (TT 65). In addition, the public adjuster
advises the policyholder as to his rights and duties under the insurance policy,
helps the policyholder interact with the insurance company adjuster, and helps the
policyholder identify options for appropriate temporary lodging. (TT 62-66).
Policyholders can benefit from this information-sharing with a public adjuster soon
after a claim-inducing event even if the public adjuster’s interaction with the
policyholder does not result in a contract. (TT 69).
Public adjusters’ fees are paid for out of the claimants’ insurance settlement
proceeds. Nonetheless, the Department stipulated that a legislatively mandated
study reported that “increases in settlements by Citizens policyholders who used
public adjusters were such that, even after subtracting the maximum public
adjuster fee allowed by statute, policyholders still received higher net recoveries.”
(R4-756). Indeed, the study found that Citizens Property Insurance Corporation
claim settlements related to Florida’s 2005 hurricanes were 747% higher and that
non-catastrophe claim settlements were 574% higher when a public adjuster was
involved. (Pt. Ex. 6 at 7-8).
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3

Public Adjuster Regulation
Among the entities seeking to do business with a policyholder in the
immediate aftermath of a claim-inducing event, the public adjuster is the only
provider of goods or services who works exclusively as an advocate for the
policyholder and who owes the policyholder a fiduciary duty. (R4-755). Public
adjusters are subject to a host of laws and regulations, many of which are
specifically directed at consumer protection. (R4-756). Public adjuster contracts
are capped at 10% of the insurance settlement for claims arising out of state-of-
emergency events, and at 20% for all other claims. (R4-755). Public adjuster
contracts must include anti-fraud provisions and are subject to unfair-and-
deceptive-trade practices laws. (R4-757). Consumers have a statutory grace
period—five business days for state-of-emergency events, and three business days
for all other events—during which they may cancel their contracts with a public
adjuster. (R4-757). Finally, it is illegal in Florida to engage in the practice of
public adjusting without a license, and all licensed public adjusters must post a
$50,000 surety bond, pass a written examination, and complete 24 hours of
biennial continuing education. (R4-753, 757).
The Statute is not the only solicitation-related law or regulation governing
public adjusters in Florida. Their administrative code of ethics requires public
adjusters to “refrain from attempting to negotiate [with] or obtain a statement from
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4

any claimant who is or would reasonably be expected to be in shock or mental
distress arising out of or resulting from a loss.” (R4-757-758). In addition, public
adjusters may solicit claimants only Monday through Saturday and only between
the hours of 8:00 a.m. and 8:00 p.m. on those days. See
§
626.854(5), Fla. Stat.
Public adjuster practices in Florida were the subject of extensive study by
the legislatively created 2007 Task Force on Citizens Property Insurance Claims
Handling & Resolution (the “Task Force”). The Department has stipulated that
“no testimony or other evidence was presented to that task force demonstrating a
statewide pattern of solicitation abuses by public insurance adjusters.” (R4-758).
The Department further stipulated that “[v]ery few complaints against public
insurance adjusters received by [the Department of Financial Services] over the
past five years (less than two percent) even mentioned early solicitation.” (R4-
756). In addition, consistent with these stipulations, a 2010 study by the
Legislature’s Office of Program Policy Analysis & Government Accountability
(“OPPAGA”) concluded that “the incidence of complaints, regulatory actions, and
allegations of fraud involving public adjusters is generally low.” (P1. Ex. 6 at 1, 4).
The Statute
As noted above, the text of the Statute is as follows:
A public adjuster may not 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
255144\1 -#229921 vi
5

event that may be the subject of a claim under the insurance policy
unless contact is initiated by the insured or claimant.
During the first 48 hours after a claim-inducing event, the Statute thus
imposes three prohibitions, which are waived only if “contact is initiated by the
insured or claimant.” In that 48-hour period, a public adjuster may not:
(1) directly or indirectly through any other person or entity initiate
contact with any insured or claimant under an insurance policy; or
(2) directly or indirectly through any other person or entity engage in
face-to-face or telephonic solicitation with any insured or claimant
under an insurance policy; or
(3) directly or indirectly through any other person or entity enter into
a contract with any insured or claimant under an insurance policy.
In the proceedings before the trial court, Plaintiff took the position that the
Statute’s command not to “directly or indirectly through any other person or entity
initiate contact” prohibits any type of public adjuster-initiated contact (including
written contact) between a public adjuster and a claimant during the 48-hour
blackout period. Plaintiff understood this prohibition as being broader than, and
separate and distinct from, the Statute’s additional prohibition on “face-to-face or
telephonic solicitation.” Plaintiff based his interpretation on a plain reading of the
Statute, on the application of traditional canons of statutory construction, and on
the notion that any other reading produced absurd results.
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6

By contrast, the Department took the position that the Statute permits written
solicitation during the 48-hour period. The Department based its interpretation on
the purported intent of the Task Force. The Department explained that its
interpretation of the Statute was “based on comments made and amendments
approved at the November 16, 2007 Task Force Meeting.” (R4-763, n
Similarly, in its Reply, the Department chastised the public adjuster community for
not having understood the Task Force ‘s intent, sarcastically noting that the
Department “obviously overestimated the aural comprehension skills of’ the public
adjusters who attended the Task Force’s November 2007 meeting.
While there is no dispute that the Legislature built on the work of the Task
Force, it cannot be denied that the Statute—i. e., what the Legislature actually
enacted—is different from the Task Force’s final recommendation. That
recommendation was as follows:
A public adjuster shall not directly or indirectly through any other
person or entity 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 72 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.
Task Force of Citizens Claims Handling & Resolution, Public Adjuster Legislation
Final Draft 11-20-07, available at http://tinyurl.com/FinalDrafil 1-20-07.
\255144\l -#229921 vi
7

Most critically, the Task Force’s recommended language did not include the
prohibition that a public adjuster not “directly or indirectly through any other
person or entity initiate contact” with any insured or claimant under an insurance
policy during the 48-hour blackout period. That restriction—the interpretation of
which is disputed by the parties here—was added by the Legislature, after the Task
Force had made its final recommendations.
The Trial
The trial court presided over a one-day bench trial at which the parties
presented the testimony of four witnesses. Plaintiff called two witnesses: Plaintiff
himself, and Raymond Altieri. Mr. Altieri is a working public adjuster and the
founding president of the Florida Association of Public Insurance Adjusters. (TT
40). He is slated to become the president of the National Association of Public
Insurance Adjusters in June 2011. (TT 40).
Mr. Altieri provided the bulk of the testimony described earlier about the
importance of a public adjuster’s assistance of the policyholder during the first 48
hours after a claim-inducing event. Altieri testified about the ways that an
uninformed policyholder can make decisions that would substantially diminish
recovery under the insurance policy—for example, by failing to preserve evidence,
by failing to find damaged property, and by over-spending on mitigation or
restoration efforts. (TT 6 1-69; 112-14). More broadly, Mr. Altieri testified that:
‘255144\1 -R229921 vi
8

“The public adjuster’s immediate involvement allows the policyholder to return to
some semblance of normalcy of their lives so they can focus on their family’s
immediate needs . . . while the public adjuster handles the claim details.” (TT 68-
69).
Both Plaintiff and Mr. Altieri testified about the ways public adjusters have
been harmed by the Statute. Each testified that, in response to the Statute, they
have ceased initiating contact or communication (of any kind) with claimants
during the 48-hour period. (TT 90; 136). Each testified that face-to-face
communication is the most effective means of solicitation. (TT 90; 181). Each
testified that claimants are often difficult to locate after 48 hours because by then
they will have re-located to temporary housing. (TI 108; 192). Although neither
put a dollar figure on the amount of his damages, each testified to having lost
business as a result of the Statute’s solicitation and contact restrictions. (TT 60-61;
138-39).
The Department called two witnesses: Mr. Terry Butler, counsel to the Task
Force, to testify about the intent underlying the Task Force’s final recommendation
to the Legislature (TT 239); and Mr. Daniel Montgomery, an expert witness.
Montgomery testified that he does not believe that it is important for a claimant to
contract with a public adjuster during the first 48 hours after a claim-inducing
event (TT 257-64); that “in the hands of an unscrupulous public adjuster,” it could
2551441 -#229921 vi
9

be unethical for solicitation to occur during the first 48 hours (TT 273); and that
public adjusters are materially distinct from tradespeople in terms of the way they
are paid—according to Montgomery, the former are often co-payees on the
claimant’s insurance proceeds checks, while the latter generally protect their fees
through the filing of a mechanic’s lien (TT 274).
In addition to Mr. Montgomery’s testimony, the Department introduced into
evidence depositions that related to three instances in which a public adjuster had
engaged in improper conduct (two of the deponents testified about the same event).
(TT 304). Plaintiff stipulated that the solicitation conduct described in those
depositions was improper. (R4-758).
The Judgment Under Review
The trial court rejected Plaintiff’s challenges to the Statute. In its final
judgment, the trial court first found that the Statute “is not clear and unambiguous”
and that “either interpretation advanced by the parties is reasonable and logical.”
(R5-866). The court did not analyze the language of the Statute in any detail or
explain why it considered the Statute ambiguous.
Having concluded that the Statute is ambiguous, the trial court next held
that, as the agency tasked with enforcing the Statute, the Department’s
interpretation was entitled to deference. (R5-866). Applying that principle, the
court concluded that, since the Department’s interpretation “is not ‘clearly
‘255144\1-#229921v1
10

unauthorized or erroneous’ the Court must accept the Defendant’s interpretations
of what the statute allows and what it prohibits.” (R5-867). The court went on to
hold that: “The Court’s finding is that for the first 48 hours after a casualty, a
public adjuster may not solicit face to face or by telephone with an insured who has
sustained a loss. No other form of contact is prohibited by the statute during the
first 48 hours and no prohibition of contact exists after 48 hours.” (R5-867).
The trial court next addressed the standard under which to assess the
constitutionality of the Statute (as interpreted by the court). The court framed the
threshold issue as whether the Statute regulates conduct (as argued by the
Department) or speech (as argued by Plaintiff). (R5867). On that question, the
court concluded that the Statute “prohibits the ‘conduct’ of confronting the insured
face to face and the ‘conduct’ of telephoning the insured during the 48 hour
period.” (R5-867).
The trial court further found that the “primary legitimate government
purpose of the statute is to provide a citizen that has been traumatized by a casualty
loss with some breathing room before making the decisions that will be necessary
to begin to put his or her life back together.” (R5-867). The court added that the
Statute was “narrowly drawn, lasting only 48 hours;” that the Statute “does not
attempt to curb any particular message;” and that the Statute prohibits only face-to
face and telephonic communications. (R5-867). In making these findings, the
255144l -ff229921 vi
11

court did not address the fact that the Legislature had not chosen to give
policyholders “breathing room” from the other commercial actors that routinely
contact them after a claim-inducing event.
The trial court then purported to apply its findings to the legal standard set
forth in United States v. O’Brien, 391 U.S. 367 (1968), which governs First
Amendment analysis of conduct-oriented regulations that only incidentally restrict
speech. Rather than offer its own analysis or compare and contrast 0 ‘Brien with
this case, the court simply cited a two-paragraph block quote from O’Brien. The
trial court’s final judgment mentions neither Central Hudson Gas & Electric Corp.
v. Public Service comm ‘n ofNew York, 447 U.S. 557 (1980), the seminal case that
established the standards governing First Amendment challenges to restrictions on
commercial speech, nor any of the cases applying Central Hudson.
Its ruling on the free speech issue complete, the trial court went on to reject
Plaintiff’s equal protection claim. The court reasoned that public adjusters occupy
a “unique position with the insured.” (R5-869). Specifically, the court found that
public adjusters are different from both company adjusters and tradespeople with
whom a claimant might contract. According to the court, company adjusters are
different because they are already in a contractual relationship with the insured.
(R5-869). Tradespeople are different because they do not owe a fiduciary duty to
\255144\1 -22992I vi
12

the claimant and because they are paid differently (i.e., according to the court, they
are not co-payees on the claimant’s insurance proceeds checks). (R5-869).
The trial court’s final judgment makes no mention of Plaintiffs claim that
the Statute violates his right to be rewarded for his industry.
\255144\l -#229921 vi
13

SUMMARY OF ARGUMENT
“If the First Amendment means anything, it means that regulating speech
must be a last—not first—resort.” Thompson v. Western States Medical Center,
535 U.S. 357, 373 (2002). To give effect to this principle, the Supreme Court
evaluates commercial speech restrictions under the Central Hudson test, which
requires the state to prove that any such restriction (1) addresses a real harm and
(2) is narrowly tailored to further a substantial state interest. The Statute satisfies
neither of these criteria.
The evidence in this case—including the Department’s own stipulations—
shows that Florida’s public adjusters do not engage in generalized solicitation-
related misconduct. On the contrary, a legislatively mandated OPPAGA study
concluded that complaints and regulatory actions against public adjusters are
generally low. The Department thus fell far short of meeting its burden to prove
that the Statute addresses a real harm.
The evidence also shows that the Statute’s costs substantially outweigh its
benefits and that the Statute’s restrictions go further than necessary to achieve the
State’s legitimate objectives. The Statute cuts off contact between the public
adjuster and the claimant when it is most critical, depriving the claimant of
essential guidance and subjecting the claimant to the possibility of making
expensive and irreversible mistakes. The Statute’s costs are entirely avoidable,
\2551441 -#229921 vi
14

given that Florida law has in place other, less restrictive means of preventing
solicitation misconduct and protecting claimants’ privacy.
Finally, the Statute makes an irrational distinction between public adjusters
and other commercial actors who come into contact with the policyholder soon
after a claim-inducing event. Many of those other actors are unlicensed individuals
who can take actions and bind the policyholder to commitments that significantly
undermine the policyholder’s recovery. Without any justification, the Statute
muzzles the speech of the one service provider who works exclusively as an
advocate for, and owes a fiduciary duty to, the claimant. The Statute thus deprives
Plaintiff and other public adjusters of their rights to equal protection and to be
rewarded for their industry.
ARGUMENT
STANDARD OF REVIEW
The trial court’s conclusions of law, including its construction of the Statute
and its choice of the legal standards under which to review the Statute, are subject
to de novo review by this Court. Drake v. Walton county, 6 So. 3d 717, 720 (Fla.
1st
DCA 2009). Any factual findings of the trial court are reviewed to determine
whether they are supported by competent and substantial evidence. See id.
255144i -#229921 vi
15

I. The Statute Prohibits All Public Adjuster-Initiated Contact and
Solicitation for 48 Hours.
To be clear: The Statute is an unconstitutional restriction on commercial
speech, even if one accepts the trial court’s and the Department’s interpretation of
what the Statute does and does not allow.
Nonetheless, it is equally clear that the trial court erred by deferring to an
unreasonable and implausible agency interpretation that ignores the Statute’s plain
meaning. See, e.g., Sullivan v. Florida Department ofEnvironmental Protection,
890 So. 2d 417, 420 (Fla.
1st
DCA 2004). Indeed, the trial court erred at the
threshold by assuming that the Department was entitled to any deference at all. As
the Department’s counsel repeatedly asserted at trial, administrative agencies speak
authoritatively only through rules, declaratory statements, and final orders. (TT
50, 122). And it is an administrative agency—not its lawyers—that is entitled to
deference. Here, the Department’s proffered interpretation of the Statute was a
mere litigating position, which is not entitled to deference. See, e.g., Bowen v.
Georgetown University Hospital, 488 U.S. 204, 2 12-13 (1988) (“We have declined
to give deference to an agency counsel’s interpretation of a statute where the
agency itself has articulated no position on the question. . . . Deference to what
appears to be nothing more than an agency’s convenient litigating position would
be entirely inappropriate.”)
2551441 -4229921 vi
16

A. The plain text of the Statute prohibits all public adjuster-initiated
contact, written and oral.
The Plaintiff has consistently maintained that the Statute prohibits public
adjusters from initiating contact, including in writing, with a policyholder for 48
hours afier a claim-inducing event. This follows from the plain language of the
Statute, which begins: “A public adjuster may not directly or indirectly through
any other person or entity initiate contact . . ..“ In this context, “directly” means
“from the source without interruption or diversion,” or “without an intervening
agency or step.” Merriam Webster’s Collegiate Dictionary,
jjti’?
Ed. (2009).
Nothing about the word “directly” implies “orally” or “in person.” Indeed, the
word does not imply any particular means of communication—for example, “direct
mail” is not a contradiction in terms. The Department’s argument that the Statute
does not prohibit written contact ignores the plain, natural meaning of the Statute.
B. Traditional canons of statutory interpretation support Plaintiff’s
construction of the Statute.
Plaintiffs position is confirmed by the application of the canon of
construction that “[w]hen the legislature has used a term ... in one section of the
statute but omits it in another section of the same statute, we will not imply it
where it has been excluded.” Leisure Resorts, Inc. v. Frank I Rooney, Inc., 654
So, 2d 911, 914 (Fla. 1995). Here the Legislature chose to modify the restriction
on “solicitation” with the adjectives “face-to-face or telephonic.” The Legislature
\255144’l-#229921v!
17

could have chosen to similarly limit the “initiate contact” prohibition by saying:
“A public adjuster may not directly or indirectly through any other person or entity
initiateface-to-face or telephonic contact. . ..“ But the Legislature chose not to,
and that decision must be given effect.
Plaintiffs position is also confirmed by the principle that “every word in a
statute is presumed to have meaning.” Gore Newspaper co. v. Department of
Revenue, 398 So. 2d 945, 946 (Fla.
4t
DCA 1981). “There is a strong presumption
against the legislature’s use of surplus language.” Id. The adverbial phrase
“directly or indirectly through any other person or entity” modifies all three of the
Statute’s prohibitions (initiate contact, engage in face-to-face or telephonic
solicitation, enter into a contract). If the phrase necessarily implied oral or face-to-
face communication, then it would have been unnecessary for the Legislature to
include the adjectives “face-to-face or telephonic” in the Statute. In other words, it
would have been enough for the Legislature to provide that a public adjuster may
not “directly or indirectly through any other person or entity engage in
solicitation.” That the Legislature chose to modify the solicitation prohibition with
the adjectives “face-to-face or telephonic” reflects the Legislature’s understanding
that, without those modifiers, written solicitation would have been prohibited.
And, of course, the Legislature did not so limit the “initiate contact” prohibition.
\255144\1 -#229921 vi
18

C. There is no legislative history to support the Department’s
interpretation.
There is no support for the statement by the Department’s counsel that there
is “unblemished, unquestionable legislative intent that shows that this statute was
not meant to affect written communication between a public adjuster and an
insured who may have just experienced a loss.” (TT 23). Counsel’s statement
relies entirely on the amendments that the Task Force made to its original draft
recommendations in November 2007. But the Legislature itself added to the Task
Force’s recommended language before adopting the final version of the Statute.
Specifically, the Legislature added the “initiate contact” provision that expanded
the Statute’s prohibitions. Nothing in the record supports the notion that the
Legislature made its changes to give effect to the Task Force’s intent.
Accordingly, the Department’s interpretation of the Statute is based on a false
premise, i.e., that actions taken and comments made at the Task Force’s November
2007 meeting are somehow determinative of the Statute’s true meaning.
D. The Department’s interpretation of the Statute contradicts its
description of the Task Force’s draft legislative recommendations.
As discussed earlier, the Task Force’s final recommendation to the
Legislature provided, among other things, that: “A public adjuster shall not directly
or indirectly through any other person or entity engage in face-to-face or
telephonic solicitation. . ..“ The Task Force’s first draft, however, had provided
\255144\1 -#229921 vi
19

that: “A public adjuster shall not directly or indirectly through any other person or
entity solicit. . ..“ Task Force of Citizens Claims Handling & Resolution,
Proposed Public Adjuster Legislation 10-05-07, available at
http://tinyur1.com/ProposedLegislation 10-10-07. The Department has uncritically
reported that, because of concerns about the original draft restriction’s
constitutionality, the Task Force changed this language so that the recommended
prohibition would apply only to “face-to-face or telephonic” solicitation.
However, if the Task Force’s first draft prohibited all solicitation, then surely the
Legislature’s final product—the Statute—prohibits all contact. Both the Task
Force’s first draft and the Statute use the adverbial phrase “directly or indirectly
through any other person or entity” exactly the same way. The Department
contradicts itself by suggesting otherwise.
E. The Department’s interpretation of the Statute leads to absurd
results.
In its quest to manufacture ambiguity in the Statute, the Department adopts a
position that should be anathema to the Legislature and to any regulator.
According to the Department, a public adjuster who sends an e-mail to a claimant
does not “directly initiate contact” with that claimant. Also according to the
Department, a public adjuster who comes into contact with a claimant while
delivering a door hanger or a brochure does not “directly initiate contact” with that
claimant. Imagine the disruption to the law generally if this Court were to accept
\255144\1 -#229921 vi
20


the notion that actions like these were not “direct contact” between a conveyor and
a recipient of information.
The Department’s interpretation of the Statute also is unworkable in practice
and fails to give public adjusters any reasonable sense of what real-world conduct
is and is not allowed. A public adjuster who approaches a home to deliver written
materials would not know whether to answer the homeowner’s questions (or even
say hello). If a claimant were to call the public adjuster soon after reading the
hand-delivered literature and seek to enter a contract, the public adjuster would not
know whether that would be considered an adjuster-initiated or a claimant-initiated
contract. It would be unreasonable for any court to ascribe to the Legislature the
intent to adopt such an irrational and unworkable regulatory scheme.
II. The Statute Violates Plaintiff’s Right to Free Speech.
As will be explained below, the trial court should have assessed the Statute’s
constitutionality under the test set out in Central Hudson. Instead, without even
mentioning Central Hudson, the court applied the 0 ‘Brien standard, which has
absolutely no relevance to this case. The court’s decision to apply 0 ‘Brien was a
byproduct of the court’s mistaken conclusion that the Statute regulates conduct
rather than speech.
The trial court’s error was consequential. By applying 0 ‘Brien instead of
Central Hudson, the court deprived Plaintiff of the substantial protection afforded
\255144 1 -#229921 vi
21

commercial speech. As the Florida Supreme Court concluded after reviewing the
U.S. Supreme Court’s jurisprudence on solicitation restrictions: “The Supreme
Court’s cases on professional advertising are unmistakably clear that such form of
commercial speech is heavily protected.” State v. Bradford, 787 So. 2d 811, 826
(Fla. 2001).
A. Because the Statute on its face regulates speech, the trial court
erred by applying the O’Brien standard.
United States v. O’Brien, 391 U.S. 367 (1968), is a well-known case in
which the Supreme Court upheld an anti-war protester’s conviction for burning his
draft card. The statute challenged in 0 ‘Brieti did not on its face have anything to
do with speech—it simply prohibited the knowing destruction of a Selective
Service certificate, a prohibition that applied as much to destruction in private
(with no intent to convey any message) as to destruction at a public demonstration.
See 0 ‘Brien, 391 U.S. at 375. As the Supreme Court noted, “[a] law prohibiting
destruction of Selective Service certificates no more abridges free speech on its
face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a
tax law prohibiting the destruction of books and records.” Id. The issue before the
Court in 0 ‘Brien was thus to determine the scope of First Amendment protection
when a statutefacially unrelated to speech has the incidental effect of restricting an
expressive act (in that case the burning of a draft card in an act of protest at a
\255144\1 -#229921 vi
22

public rally). The Court settled on the relatively relaxed standard of review that
the trial court applied here. See O’Brien, 391 U.S. at 376-77.
Incredibly, to persuade the trial court that it should apply the 0 ‘Brien
standard, the Department cited State v. Conforti, 688 So. 2d 350
(4th
DCA 1997).
See (R4-761). The defendants in C’onforti were erotic dancers who had been
convicted for violating a statute that prohibited “lewdness.” Conforti, 688 So. 2d
at 353. Applying 0 ‘Br/en, the Fourth District concluded that the statute regulated
conduct, not speech, and rejected the defendants’ constitutional challenge: “The
sex acts prosecuted here—.., performed rhythmically to music before a paying
customer in a dark, private room—do not amount to expressive conduct protected
by the First Amendment.” Id. at 355.
There is no comparison between the commercial speech engaged in by a
public adjuster, on the one hand, and burning a draft card or performing sex acts
for pay in a nightclub, on the other. Nor is there any comparison between the
Statute—which on its face regulates speech—and the statutes at issue in 0 ‘Br/en
and Conforti, which on their face had nothing to do with speech. It was clear error
for the trial court to apply the 0 ‘Br/en standard here.
B. The correct standard for reviewing the Statute is the Central
Hudson standard.
When reviewing the constitutionality of restrictions on commercial speech,
courts uniformly apply the test set out in Central Hudson Gas &Electric Corp. v.
2551441 -p229921 vi
23

Public Service Comm‘is ofNew York, 447 U.S. 557 (1980). Central Hudson is
applicable here because: the Statute on its face restricts commercial speech; the
free speech protections afforded by the Florida Constitution are co-extensive with
the First Amendment; and florida courts apply U.S. Supreme Court precedents in
free speech cases. See Department ofEducation v. Lewis, 416 So. 2d 455,461
(Ha. 1982).
There is no shortage of cases in which courts across the spectrum—
including this Court—have evaluated commercial solicitation restrictions under the
Central Hudson standard. The U.S. Supreme Court applied Central Hudson both
when it struck down a solicitation restriction aimed at certified public accountants
and when it upheld a solicitation restriction aimed at lawyers. See Edenfield v.
Fane, 507 U.S. 761 (1993) (CPAs); Florida Bar v. Went-For-It, Inc., 515 U.S. 618
(1995) (lawyers). The florida Supreme Court applied Central Hudson when it
struck down a restriction aimed at persons soliciting accident victims to file
personal injury protection insurance claims. See Bradford, 787 So. 2d at 811. This
Court applied Central Hudson when it struck down a restriction aimed at hearing
aid specialists. See Beckwith v. Department ofBusiness andProfessional
Regulation, 667 So. 2d 450 (Fla. l DCA 1996). And the Pennsylvania Supreme
Court applied the Central Hudson standard when it struck down a 24-hour
solicitation ban aimed at public adjusters. See Insurance Adjustment Bureau v.
4255144i -#229921 vi
24

Insurance Commissioner, 542 A.2d 1317 (Pa. 1988). See also Pruett v. Harris
County Bail Bond Bd., 499 F.3d 403
(5t11
Cir. 2007) (striking down bail bondsmen
solicitation restriction); Pearson v. Edgar, 153 F.3d 397 (7 Cir. 1998) (striking
down real estate agent solicitation restriction).
Contrary to an argument the Department made before the trial court, Central
Hudson would still be the correct legal standard even if the Statute were interpreted
as allowing written solicitation. Ede,fIeld and Bec1c4’ith both dealt with
restrictions that prohibited only in-person or phone solicitation. See EdenJield, 507
U.S. at 765; Beckwith, 667 So. 2d at 451. The Supreme Court and this Court
nonetheless reviewed those restrictions under Central Hudson.
Where, as here, the commercial speech being restricted relates to lawful
activity and is not misleading, Central Hudson requires courts to apply a three-
prong test. First, the reviewing court must determine “whether the asserted
governmental interest is substantial.” Thompson v. Western States Medical Center,
535 U.S. 357, 367 (2002). Second, the court must determine “whether the
regulation directly advances the governmental interest asserted.” Id. And third,
the court must determine whether the restriction “is not more extensive than
necessary to serve that interest.” Id.
The Department bears the burden of proving that the Statute satisfies all
three of the Central Hudson criteria: “It is well established that the party seeking
255144.1 -#229921 vi
25

to uphold a restriction on commercial speech carries the burden ofjustifying it.”
EdenJield, 507 U.S. at 770 (internal quotes omitted). In this case, only the second
and third prongs of Central Hudson are at issue, because Plaintiff concedes that the
interests purportedly served by the Statute—”to try to ensure more ethical behavior
on the part of public adjusters generally” and “to ensure the privacy of people who
have just suffered a calamity” (TT 324)—are substantial in the abstract. 1 This is
not enough to save the Statute, however, because it falls far short of satisfying
Central Hudson s other two prongs.
C. The Department has not carried its burden of proof under
Central Hudson.
1. The Department failed to prove that public adjuster
solicitation in Florida causes actual harm.
To carry its burden under Central Hudson ‘.s’ second prong, the Department
had to prove that “the harms it recites are real and that its restriction will in fact
alleviate them to a material degree.” Edenfield, 507 U.S. at 771. The Department
did not prove that “the harms it recites are real.” In fact, the record affirmatively
proves the absence of harm from public adjuster solicitation. The Department’s
failure to prove that public adjuster solicitation causes actual harm dooms its
ability to satisfy the Central Hudson test.
Note, however, that the Department is limited to the interests it has identified.
Under Central Hudson, unlike in rational basis review, the court may not supplant
the state’s interests with “other suppositions.” Edenfield, 507 U.S. at 768.
\255144\1 -#229921 vi
26

The joint stipulations in this case, standing alone, are fatal to the
Department’s case. The Department stipulated that “no testimony or other
evidence was presented to [the Task Force] demonstrating a statewide pattern of
solicitation abuses by public insurance adjusters.” (R4-758). It further stipulated
that “very few complaints against public insurance adjusters received by [the
Department] over the past five years (less than two percent) even mentioned early
solicitation.” (R4-756).
But there is even more evidence in the record showing that public adjuster
solicitation in Florida does not cause actual harm. In Chapter 2009-87, Laws of
Florida, the Legislature directed OPPAGA to conduct a study of the laws
governing public adjusters. The Legislature identified several areas of inquiry,
including a review of “the effects on consumers of the laws of this state relating to
public adjusters.” Ch. 2009-87,
§
15, Laws of Fla. OPPAGA concluded: “The
number of complaints, investigations, and disciplinary actions against public
adjusters is generally low.” (P1. Ex. 6 at 1, 4).
The testimony of the Department’s expert witness did nothing to help the
Department prove that public adjuster solicitation in Florida causes actual harm.
Counsel for the Department twice asked softball questions about the propriety of
soliciting claimants who are in mental or emotional distress. (TT 272; 297). The
Department’s expert responded merely that, in that situation, “an unscrupulous
\255144\1 -#229921 vi
27

public adjuster” or “unethical people” could take advantage ofthe claimant But as
this Court has held, “the First Amendment right to commercial speech may not be
so significantly limited on mere speculation that [unethical] behavior might
possibly occur.” Beclcwith, 667 So. 2d at 45 1-52 (emphasis in original). Indeed, if
testimony like this were enough to justify a speech restriction, the First
Amendment would offer commercial speech little protection at all.
Moreover, as the Second Circuit Court of Appeals noted in a commercial
speech restriction case, “[i]n evaluating this record, we cannot ignore what it does
not contain.” New York State Ass ‘n ofReahors, Inc. v. Shaffer, 27 F.3d 834, 843
(2d Cir. 1994). The Department’s expert offered no testimony about specific
examples of solicitation misconduct by public adjusters in Florida. Nor did he
testify even in general terms about public adjuster solicitation in Florida. Nor did
he testify about how Florida consumers perceive public adjusters. And the
Department itself offered no evidence of prosecutions or investigations involving
solicitation-related misconduct by public adjusters.
The Department did offer depositions relating to three instances that, by
Plaintiff’s stipulation, involved solicitation misconduct by public adjusters. (R4-
758). This meager evidence does not come close to overcoming the Department’s
stipulations and the OPPAGA report. In light ofthe growing numbers ofpublic
adjusters, the extensive regulations to which they are subject, and the effort that the
U55I44I -#22992! vi
28

Task Force and OPPAGA put into studying the business of public adjusting in
Florida, it speaks volumes that the Department produced only these three instances
of misconduct.
This Court and the Supreme Court have not hesitated to strike down
commercial speech restrictions where the state failed to prove that the restrictions
at issue responded to actual harm. In Beckwith, this Court invalidated a restriction
on solicitation by hearing aid specialists, holding that the state’s mere “speculation
as to possibilities” could not satisfy Central Hudson ‘s second prong. Beckwith,
667 So. 2d at 452. Similarly, the Supreme Court in Edenfield struck down a
restriction on solicitation by CPAs, finding that the state had offered neither studies
nor anecdotal evidence showing that the restriction addressed a real problem. See
Edenfield, 507 U.S. at 771. See also Pruett v. Harris County Bail Bond Board, 499
F. 3d 403
(5t1
Cir. 2007) (strking down prohibition on solicitation by bail
bondsmen within 24 hours after arrest). . Consistency with these precedents
demands that this Court declare the Statute an unconstitutional restriction on
Plaintiff’s free speech.
Because the Department has failed to prove that the Statute remedies actual
harm, its strained efforts to limit the Statute’s reach are pointless. Under either
side’s interpretation, the Statute at a minimum prohibits face-to-face or telephonic
solicitation, but without any justification. As the 1
1th
Circuit Court of Appeals has
\255[44\l -#229921 vi
29

held, “Even partial restrictions on commercial speech must be supported by a
showing of actual hanm” Mason v. The Florida Bar, 208 F.3d 952, 958
(11th
Cir.
2000).
2. The Department failed to prove that the Statute is narrowly
tailored to meet the state’s objectives.
The Department also failed to meets its burden under Central Hudson ‘s third
prong. The Department was required to prove that the Statute’s commercial
speech restriction is “narrowly tailored to achieve the desired objective.” Board of
Trustees ofState University ofNew York v. Fox, 492 U.S. 469, 480 (1989). The
Department had to show that the scope of the Statute’s restrictions is “in proportion
to the interest served.” Id.
The first reason the Statute fails Central Hudson ‘s narrow tailoring
requirement is that there are other, less restrictive means to achieve the state’s
ends. See Rubin v. Coors Brewing Co., 514 U.S. 476, 491 (1995) (availability of
less restrictive alternatives shows statute is not narrowly tailored). The
Department’s counsel stated at trial that, “[A] public adjuster that pops up on the
scene and just nags and nags and nags the person until they sign a contract in
exasperation, that’s not ethical and that’s not proper. And that’s what this statute is
designed to prevent. We’re not trying to regulate ethical public adjusters.” (TT
25-26).
\255144\1 -#229921 vi
30

Actually, the Statute is not so limited. Even under the Department’s
construction, the Statute prohibits all public adjuster-initiated in-person solicitation
during the blackout period—it is not targeted at harassment or at vexatious
conduct. The Department can fully address such harmful conduct simply by
enforcing the existing laws and administrative code of ethics that regulate public
adjusters, including the restriction on soliciting claimants who are in emotional
distress and the statutory requirement giving claimants a grace period within which
they can cancel their contract with a public adjuster without any liability. (R4-
757). Similarly, the state’s interest in protecting claimants’ privacy is enhanced by
enforcing the statutory prohibition on soliciting claimants between the hours of
8:00 p.m. and 8:00 a.m. and on Sundays. See
§
626.854(5), Fla. Stat. As the
Department stipulated, “DFS has statutory authority to deal with unethical or
fraudulent behavior by public adjusters.” (R4-758).
The second reason the Statute fails the narrow tailoring requirement is that
its restrictions are disproportionately onerous in relation to the ends served. To
meet Central Hudson ‘s third prong, the Department had to prove that the state has
“carefully calculated” the cost of a restriction on commercial speech. Fox, 492
U.S. at 480. Even assuming for the argument that the Statute permits written
solicitation during the first 48 hours after a claim-inducing event, the Department
offered no evidence that the state had considered the effectiveness of written
\255I441 -#229921 vi
31

communication in the public adjuster/claimant context. Indeed, Terry Butler,
counsel to the Task Force, testified that he had not considered it. (TT 253).
Moreover, in exchange for preventing purely hypothetical harms, the Statute
deprives consumers of access to information from the public adjuster at the time
the consumer needs it the most. As Mr. Altieri’s testimony demonstrated, in the
immediate aftermath of a claim-inducing event, an uninformed policyholder can
take actions (e.g., by failing to preserve or locate evidence or by unnecessarily
spending on mitigation efforts) that can significantly affect his ultimate recovery.
And it is quite conceivable that in many instances the policyholder will be unable
to reverse these bad decisions after the initial 48-hour period. (TT 96-97).
The Statute also deprives public adjusters of the most effective means of
communicating with potential clients and seeking business. The Department did
not rebut Plaintiff’s and Altieri’s testimony that, after 48 hours, claimants are
frequently gone from their property and difficult to locate. (TT 108; 184-85). Nor
did the Department rebut their testimony that face-to-face interaction is the most
effective form of communication between a public adjuster and a policyholder.
(TT 90). As the Fifth Circuit Court of Appeals has held, a restriction “which
prevents speech when it is the most valuable for the speaker and the potential
customer should be viewed with some skepticism.” Pruett, 499 F.3d at 415.
\255144\1 -t229921 vi
32

Finally, the under-inclusiveness of the state’s approach to commercial
solicitation in the first 48 hours after a claim-inducing event shows that there is not
a reasonable fit between the Statute and the harms it purports to address. This
point is illustrated by the holding in Pearson v. Edgar, 153 F.3d 397 (7 Cir.
1998). That case involved a First Amendment challenge to a statute that gave
homeowners a legally enforceable option to block solicitation by real estate agents,
but did not offer homeowners the same option to decline other types of commercial
solicitation. The State of Illinois justified the statute on the ground that it furthered
residential privacy. The record in that case, however, showed no evidence of a
particularized harm to residential privacy caused by real estate agent solicitation.
The court held that, “[ajbsent such evidence, a mechanism whereby homeowners
can reject real estate solicitation but not other kinds of solicitation cannot be said to
advance the interest in residential privacy ‘in a direct and material way.” Id. at
404. In other words, the court determined, “the underinclusive nature of the statute
indicates unreasonable fit.” Id. The court struck down the statute, concluding that
it could not “place the interest in residential privacy above the interest in logical
distinctions in speech restrictions absent some showing that the restriction
reasonably fits the justification.” Id. at 404.
Just so here. In the immediate afteriTlath of a claim-inducing event,
policyholders are solicited by myriad service providers—roofers, contractors,
‘255144\1 -#229921 vi
33

mitigation experts, cleaning companies, etc. Yet, even in the absence of any
evidence of wrongdoing, the Statute singles out public adjusters for a 48-hour
solicitation ban. The arbitrariness of the Legislature’s distinction shows that the
Statute does not properly advance the state’s asserted interest in protecting
claimants’ privacy—i.e., there is not a “reasonable fit” between the State’s asserted
goal and the Statute’s discriminatory restrictions on public adjusters’ ability to
communicate with policyholders.
3. This Court should follow the Pennsylvania Supreme
Court’s decision striking down a 24-hour public adjuster
solicitation ban.
The Pennsylvania Supreme Court’s decision in Insurance Adjustment
Bureau should be highly persuasive here. Applying Central Hudson, the court in
that case struck down a law prohibiting public adjusters from soliciting business
for 24 hours after a claim-inducing event. See Insurance Adjustment Bureau, 542
A.2d at 1324. The court noted that there was no evidence of pervasive misconduct
by public adjusters and that, in light of the state’s “arsenal of [administrative]
remedies.. . imposition of prior restraints on the speech of public adjusters and
public adjuster solicitors is unjustifed.” Id. at 1323. The court rejected the
argument that the 24-hour ban was merely a reasonable time, place, and manner
restriction, noting that “the period of time immediately following the disaster may
be the only time during which the property owner can be located before moving to
‘255144\1 -#229921 vi
34

an unknown address because of the disaster which has affected his property.” Id.
The Pennsylvania Supreme Court’s reasoning applies just as forcefully here.
If anything, Florida’s public adjuster solicitation restriction is even more
defective than Pennsylvania’s—and not just because Florida’s 48-hour restriction
is twice as long as the one struck down by the Pennsylvania Supreme Court.
First, the Pennsylvania Supreme Court’s opinion notes the absence of any
evidence that public adjuster speech is generally false or deceptive. See id. at 219
n. 5. But there is no indication in the opinion that the record there included
evidence affirmatively showing that there was no generalized misconduct by public
adjusters in the aftermath of a claim-inducing event. This case presents more than
a mere failure by the Department to sustain its burden of proof—the key evidence
in the case actually disproves the notion that there is an actual harm that would be
remedied by the Statute’s speech restrictions.
Second, the Pennsylvania law restricted only “solicititation.” By contrast,
the Statute’s prohibition on “initiating contact”—even if construed to apply only to
in-person or telephonic contact—cuts off a far broader flow of information from
the adjuster to the consumer. This is especially problematic in a context where, as
the record in this case shows, the consumer is likely to be uncertain of his rights
and duties vis-à-vis his insurance carrier and might unwittingly take actions that
harm his own interests.
\255144\1 -#229921 vi
35

Third, the Pennsylvania opinion makes no mention of that state having in
place something like Florida’s prohibition (unchallenged here) on public adjuster
solicitation between 8:00 p.m. and 8:00 a.m. and on Sundays. This distinction
shows that, in Florida, there are even more alternatives already available to further
the state’s interests without unnecessarily restricting the flow of commercial
speech.
4. The “lawyer cases” are inapposite.
In Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the Supreme
Court held that the state “may discipline a lawyer for soliciting clients in person,
for pecuniary gain, under circumstances likely to pose dangers that the state has a
right to prevent.” fd. at 449. Later, in Florida Bar v. Went-for-It, 515 U.S. 618
(1995), the Supreme Court upheld a Florida Bar rule that “prohibit[ed] personal
injury lawyers from sending targeted direct-mail solicitations to victims and their
relatives for 30 days following an accident or disaster.” [d. at 620. The Florida
Supreme Court in State v. Bradford, 787 So. 2d 811 (Fla. 2001), noted that Ohralik
and Went-for-It stand out as the only cases in which the U.S. Supreme Court has
upheld restrictions on the advertising of professional services. See id. at 826-27.
For the reasons explained below, these cases are inapposite and do not support the
Department’s defense of the Statute—indeed, the lawyer cases only highlight the
deficiencies in the Department’s position.
\255144\1 -#229921 vi
36

There are important distinctions between the record in Ohralik and the
record here. First, the in-person solicitation restriction for lawyers dated back to
1908 and had been re-adopted by the American Bar Association in 1969 afier a
four-year study of the Association’s rules. See Ohraiik, 436 U.S. at 454 n.h. The
Court thus was upholding a restriction that had for decades been viewed as
inconsistent with the standards of the legal profession. There is no remotely
comparable historical support for the Statute’s restrictions on public adjusters.
Second, the Ohralik Court emphasized that the danger of in-person
solicitation by lawyers was heightened by the fact that a lawyer is a “professional
trained in the art of persuasion.” Id. at 465. In Edenjield, the Court invoked this
distinctive feature of legal training as a basis for distinguishing lawyers from CPAs
(who lacked training in persuasion and were therefore less able to unduly influence
potential clients). See Edenfleid, 507 U.S. at 775. Public adjusters are equally
dissimilar from lawyers.
Third, the Court in Ohralik noted that the rule against solicitation did not
prevent attorneys from “communicating information” to accident victims about
their rights. Ohralik, 436 U.S. at 458. By contrast, the Statute—properly
interpreted—prohibits all public adjuster-initiated contact with a claimant in the
first 48 hours, a restriction that does not allow the public adjuster to convey any
information to the claimant. For example, it would violate the Statute’s “initiate
\255144\1 -#229921 vi
37

contact” prohibition to have a conversation with a claimant in which the public
adjuster did not propose a commercial transaction but instead gave the claimant
pointers about how best to protect his rights under his insurance policy.
Finally, and most importantly, the Supreme Court in EdenJleld emphasized
that “Ohralik in no way relieves the State of the obligation to demonstrate that it is
regulating speech in order to address what is in fact a serious problem and that the
preventative measure it proposes will contribute in a material way to solving that
problem.” Edenfield, 507 U.S. at 776. In Ohralik, the Court determined that in the
particular circumstances presented in that case, it was “not unreasonable for the
State to presume that in-person solicitation by lawyers more often than not will be
injurious to the person solicited.” Ohralik, 436 U.S. at 466 (emphasis added).
The record in this case precludes any presumption that solicitation by public
adjusters is “more often than not injurious” to claimants. The Department has
itself stipulated that public adjusters are the subject of relatively few complaints.
The Department has further stipulated that the Task Force heard no evidence
suggesting that there is a statewide problem in Florida of solicitation misconduct
by public adjusters. And these stipulations are reinforced by the OPPAGA report,
which found that the incidence of complaints, regulatory actions, and allegations of
fraud involving public adjusters is generally low.
\255144\J -#229921 vi
38

Went-for-It is inapposite for similar reasons. The Court in that case noted
that “[t]he purpose of the 30-day targeted direct-mail ban is to forestall the outrage
and irritation with the state-licensed legal profession that the practice of direct
solicitation only days after accidents had engendered.” Went-for-It, 515 U.S. at
631. To prove that the direct mail ban was addressing a real harm, the Florida Bar
conducted a two-year study on the effects of lawyer advertising on public opinion.
Id. at 620. The study compiled both statistical and anecdotal evidence, including
“page upon page of excerpts from complaints of direct-mail recipients.” Id. at 627.
Among other things, the study concluded that 45% of those surveyed believed
direct-mail advertising from lawyers was designed to take advantage of gullible
people; 27% of those surveyed reported that receipt of direct mail from lawyers
lowered their regard for the profession. Id.
For the reasons already explained, there is no such evidence of harm in this
case. Indeed, this case is the opposite of Went-for-It, because the study of public
adjusters in Florida affirmatively indicates the absence of harm. Moreover, far
from proving that public adjusters have damaged their profession’s reputation, the
Department failed to rebut Plaintiffs testimony that “the vast majority of the
insured public doesn’t know about public adjusters.” (TT 191).
Moreover, the restrictions in the Statute are detrimental to consumers in
ways that the restrictions on attorney solicitation are not. In the context of a
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39

several-year-long statute of limitations period, not being contacted by a lawyer for
30 days is nothing. By contrast, the record evidence here shows that the first 48
hours after a claim-inducing event are critical. For the reasons already explained,
without guidance from a public adjuster, the claimant can harm his or her interests
in ways that cannot be reversed after the 48-hour ban is over.
Relatedly, the Court in Went-for-It upheld the direct-mail restriction in part
because there were ample alternative means for injured persons to find out about
available legal services. It noted the ubiquity of lawyer advertising and “empirical
survey information suggesting that Floridians have little difficulty finding a lawyer
when they need one.” Went-for-It, 515 U.s at 634. Here, there was no evidence
that any type of solicitation other than face-to-face interaction is an effective way
for claimants to learn about the services of a public adjuster. Indeed, as mentioned
earlier, Plaintiff testified that “the vast majority of the insured public doesn’t know
about public adjusters.” (TT 191).
III. The Statute Violates Public Adjusters’ Right to Equal Protection.
The Statute arbitrarily imposes on public adjusters a speech restriction that it
does not impose on similarly situated actors. In the aftermath of a claim-producing
event, a policyholder is likely to be contacted by the insurance company adjuster,
contractors, mitigation experts, cleaning companies, etc. None of these entities is
subject to any speech restriction. Yet solicitation by each of them has the same
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40

effect on policyholders’ privacy as solicitation by public adjusters, and each of
them can obtain binding contractual agreements from the policyholder. Many of
these contractors are unlicensed and can take actions that will significantly affect
the policyholder’s ultimate recovery.
Indeed, of all the entities that might contact a policyholder after a claim-
inducing event, speech restrictions on public adjusters are least justified. Public
adjusters are subject to an administrative code of ethics, including a restriction on
negotiating with claimants who are in emotional distress. Florida law gives
policyholders a grace period of at least three business days to cancel a public
adjuster contract, a right that does not attach to the other contracts the policyholder
might enter. And of all the entities providing goods or services to the policyholder,
only the public adjuster owes the policyholder a fiduciary duty. By contrast, as the
Department’s expert witness testified, after a claim-inducing event the
policyholder is “entering into a new relationship with their insurance carrier, which
is an adversarial relationship and a negotiation.” (TT 258).
If this Court concludes that the Statute violates Plaintiffs free speech rights,
then it must also conclude that the Statute violates Plaintiffs right to equal
protection of the laws. “When considering a statute that abridges a fundamental
right, courts are required to apply the strict scrutiny standard to determine whether
the statute denies equal protection.” Level 3 Communications, LLC v. Jacobs, 841
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41

So. 2d 447, 454 (Fla. 2003). “To withstand strict scrutiny, a law must be necessary
to promote a compelling government interest and must be narrowly tailored to
advance that interest.” Westerheide v. State, 831 So. 2d 93, 110 (Fla. 2002). There
can be no dispute that the Statute’s discriminatory speech restriction on public
adjusters neither serves a compelling interest nor is narrowly tailored.
But even if this Court were to review the Statute under the more permissive
rational basis standard, the Statute still violates public adjusters’ right to equal
protection. The rational basis test demands that a statute’s classifications be both
“non-arbitrary and rationally related to a legitimate state purpose.” Jacques v.
Department ofBusiness and Frofrssionai Regulation, 15 So. 3d 793, 797 (Fla.
1st
DCA 2009). The Statute satisfies neither of these criteria. For the reasons
explained above, the Statute’s discriminatory treatment is patently arbitrary—in
the absence of any evidence that public adjusters’ solicitation practices harm
consumers, the Statute restricts the speech of the one service provider that owes
policyholders a fiduciary duty and is subject to a host of consumer-oriented
regulations.
Nor does the Statute’s classification serve any legitimate purpose. The
Statute is so nonsensical that it cries out for an explanation. The only purpose
obviously served by the Statute is protectionism. As the OPPAGA report noted,
“insurance company representatives suggested that [a 48-hour restriction] is
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42

inadequate for insurance companies to prepare and offer policyholders a
settlement.” (P1. Ex. 6 at 5). Insurance companies have every incentive to prevent
policyholders from hiring a public adjuster, since the evidence shows that
policyholders with public adjuster representation typically receive substantially
higher settlements than those without public adjusters. See Id. at 7. Protecting a
special interest (insurance companies) by shielding them from the services of a
public adjuster is not a legitimate state purpose. See, e.g., Craigmiles v. Giles, 312
F.3d 220, 224
(6th
Cir. 2002).
The trial court’s reasons for sustaining the Statute’s discriminatory
classifications are unpersuasive. Comparing the public adjuster to the insurance
company adjuster, the court noted that the latter is already in a contractual
relationship with the insured. That is true, but as the Department’s expert testified,
the relationship between the policyholder and the insurance company after a claim-
inducing event is adversarial. Thus, the existence of a contract between the
policyholder and the insurance company hardly justifies giving the company
adjuster more preferable speech rights.
The trial court’s attempt to distinguish tradespeople from public adjusters is
even weaker. The court found that, unlike a public adjuster, a contractor is not a
co-payee on the insured’s settlement check. But that consideration (assuming the
court’s finding is correct) is irrelevant—the policyholder’s obligation to pay a
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contractor is equally binding, and, in contrast to public adjusters, contractors’ fees
are not capped by law. The court’s other distinction between public adjusters and
contractors—that a public adjuster is a fiduciary to the insured—actually argues
against singling out public adjusters for discriminatory treatment.
IV. The Statute Violates Plaintiff’s Right to be Rewarded for Industry.
The Statute violates the Florida Constitution’s guarantee of the Plaintiff’s
“inalienable right” “to be rewarded for industry.” Art. I,
§
2, Fla. Const.
Government action that limits this right must bear a rational relationship to a
legitimate state objective. See Fraternal Order ofPolice v. Department ofState,
392 So. 2d l296, 1301-02 (Fla. 1980). For the reasons already explained, the
Statute is arbitrary and irrational and does not serve a legitimate state objective.
Indeed, to muzzle public adjusters at the very time their speech is most critical to
policyholders absolutely hobbles the profession.
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CONCLUSION
For all of the foregoing reasons, Plaintiff respectfully requests that this Court
reverse the trial court’s final judgment and order the entry ofjudgment in favor of
Plaintiff.
Resectfully submitted,
Carlos G. Muñiz
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45

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was furnished by U.S. Mail on July 19,
2010, to the following:
Michael H. Davidson
Department of Financial Services
200 East Gaines Street
612 Larson Building
Tallahassee, Florida 32399
Telephone (850) 413-4178
EMail:
Michael .davidsonmyflori dacfo.com
,1
Ji
Gerge M&os, Jr.
/
Florida Iar No. 263321
Carlos G. Mufliz
Florida Bar No. 535001
GrayRobinson, PA
301 South Bronough Street
Suite 600 (32301)
Post Office Box 11189
Tallahassee, FL 32302
Telephone (850) 577-9090
Facsimile (850) 577-33 11
Attorneys for Appellant,
Frederick W Kortum
\255144\1 -#229921 vi
46

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT
I certify that the font used in this brief is Times New Roman 14 point and in
compliance with Rule 9.210, Florida Rules of Appellate Procedure.
AZ ‘4/
Gerge N.iMeros, Ji
Florida Bar No. 263321
Carlos G. Mufliz
Florida Bar No. 535001
255144\1 -#229921 vi
47

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