An appeals court rules that Florida consumers can sue those who send unsolicited faxes.
By KRIS HUNDLEY
Published August 23, 2003
If federal law says a consumer can sue for unsolicited faxes, but Florida law says the Attorney General's Office has to handle those complaints, what's a frustrated fax recipient to do?
On Friday, the state's 2nd District Court of Appeal in Lakeland said consumers can sue. The decision was related to a lawsuit filed in October 2001 by Timothy Condon, a Tampa lawyer, against Office Depot of Delray Beach.
Condon figured nuisance faxes from the office supply store were costing him fax paper and toner. He argued that he had the right to sue under federal law, which allows individuals to get damages of up to $500 per unsolicited fax by taking action in small claims court. Condon said Office Depot had violated federal law by sending 13 unsolicited advertisements by fax.
That case was dismissed with prejudice by the trial court in Hillsborough County, a decision that was reversed by the appeals court Friday. The justices ruled that "the state is not required to adopt enabling legislation before a state court of competent jurisdiction can entertain this federal law claim."
Michael Addison, Condon's attorney, said this is the first appellate court decision in Florida to give consumers the right to sue over unsolicited faxes, making it an important precedent.
Condon said he was vindicated by the higher court's decision and intends to pursue his claim against Office Depot aggressively.
"This is really a scourge," Condon said of unwanted faxes. "It's the same as e-mail spam but even worse. They're using your paper, your machinery, your phone line, your ink. It's physical spam."
Richard Zabak, attorney for Office Depot, said he'll be discussing the appeal court's ruling with his client. "There are other issues in the case, so even if that ruling stands, we will obviously look at possible recourse," he said. "This ruling does not mean Office Depot will lose."
If the case goes forward, Zabak said he expects Office Depot to defend itself by saying there was an established business relationship between Condon and the office supply chain. Unsolicited faxes are allowed under both federal and state law if there is such a relationship.
Condon said he believes a business relationship does not give a company explicit permission to send faxes. "But I invite them to take their best shot," he said of Office Depot.
A national do-not-fax rule, originally scheduled to go into effect this week, has been delayed until Jan. 1, 2005. Under provisions of this Federal Communications Commission rule, businesses would need written permission to send faxes. Violators could face fines of up to $11,000 per citation.
Businesses and nonprofit groups have opposed the new restriction, saying it is overly broad and would be costly and time-consuming to comply.
