Advertisement
  1. Florida Politics

Florida court strikes down law on credit card surcharges

Published Nov. 6, 2015

TALLAHASSEE — Pointing to the First Amendment, a federal appeals court has struck down a Florida law that bars businesses from imposing a "surcharge" on customers who pay with credit cards.

The 11th U.S. Circuit Court of Appeals, in a 2-1 decision Wednesday, sided with four small businesses that faced potential prosecution for telling customers they would face additional costs for using credit cards.

A key part of the ruling focused on part of Florida law that allows businesses to offer discounts to customers who pay with cash — but bars surcharges for credit-card transactions. Judge Gerald Tjoflat wrote that the First Amendment "prevents staking citizens' liberty on such distinctions in search of a difference."

"Tautologically speaking, surcharges and discounts are nothing more than two sides of the same coin; a surcharge is simply a 'negative' discount, and a discount is a 'negative' surcharge,'' Tjoflat wrote in the 30-page ruling, joined by Judge David Bryan Sentelle. "As a result, a merchant who offers the same product at two prices — a lower price for customers paying cash and a higher price for those using credit cards — is allowed to offer a discount for cash while a simple slip of the tongue calling the same price difference a surcharge runs the risk of being fined and imprisoned."

But Chief Judge Ed Carnes wrote a stinging dissent, contending that a state law was "being struck down by a federal court for no good reason."

Carnes described a scenario in which a store could put a $100 sticker price on an item and surprise a customer at the cash register by charging $103 because of a credit card surcharge.

"It does not matter whether the store characterizes the difference in price as a credit card surcharge, a cash discount, or both,'' Carnes wrote. "The merchant can speak in any way he chooses so long as he does not ambush the credit card-using customer with a higher price at the register. What matters is when, from the customer's perspective, the merchant adds the additional amount to the price because a credit card is used, not how the merchant describes it."

The majority overturned a ruling by a federal district judge, who last year agreed with arguments made by Attorney General Pam Bondi's office and dismissed the case.

The lawsuit was filed in 2014 by four businesses that had received "cease-and-desist" letters from the state related to alleged violations of the credit card surcharge law, according to the appeals court ruling. The businesses were Dana's Railroad Supply in Spring Hill, TM Jewelry LLC in Key West, Tallahassee Discount Furniture in Tallahassee and Cook's Sportland in Venice.

The credit card surcharge law says violators can face second-degree misdemeanor charges.

"Based on the belief that it is more effective, transparent, and accurate to do so, all four of the businesses wish to call the price difference a credit-card surcharge rather than a cash discount,'' Tjoflat wrote.

In the dissent, Carnes said government can regulate "economic conduct" without violating constitutional free speech rights. He wrote that "a surcharge openly posted on the store shelf is permissible, while one that comes up for the first time when the customer is paying for her purchase is not. Prescribing when a business can add an additional amount to its price controls the timing of conduct and not the speech describing that conduct. The Supreme Court has long held that the government can regulate economic conduct — including the prices charged by merchants — without violating the First Amendment."

ALSO IN THIS SECTION

  1. Protesters gathered outside the federal courthouse in Tallahassee on Monday, Oct. 7, 2019, while a federal judge heard arguments for an against the the Legislature's bill implementing Amendment 4. LAWRENCE MOWER  |  Lawrence Mower
    It’s unclear how state and county officials plan on complying with the judge’s order, however. The “poll tax” issued wasn’t addressed, either.
  2. The Florida Capitol. [SCOTT KEELER   |   Times] SCOTT KEELER  |  Tampa Bay Times
    The job entails being a part-time lobbyist, part-time expert on the Florida Sunshine Law.
  3. Florida K-12 Chancellor Jacob Oliva presents the state's second draft of academic standards revisions during an Oct. 17, 2017, session at Jefferson High School in Tampa. Gov. Ron DeSantis called for the effort in an executive order to remove the Common Core from Florida schools. JEFFREY SOLOCHEK  |  Times staff
    ‘Our third draft will look different from our second,’ the chancellor explains.
  4. Igor Fruman, hugs Florida Governor elect Ron DeSantis, right, as Lev Parnas looks on Tuesday, Nov. 6, 2018 in Orlando at the watch party for DeSantis. Fruman and Parnas were arrested last week on campaign finance violations. CHRIS URSO  |  Times
    Florida’s governor has shrugged off past donor controversies. This time, there were photos. Now it’s not going away.
  5. The sun sets over a slab which once served as a foundation for a home on Mexico Beach in May. DOUGLAS R. CLIFFORD  |  Tampa Bay Times
    Area leaders fear lower population numbers will lead to reduced federal funding and political representation.
  6. Senador de Florida, Rick Scott.  Foto: AP
    “The FBI has failed to give me or these families an acceptable answer, but I’m not going to allow that,” Scott said, adding that the FBI didn’t share pertinent information on shootings at Pulse, the...
  7. Courtney Wild, 30, was a victim of serial sexual offender Jeffrey Epstein beginning at the age of 14. Epstein paid Wild, and many other underage girls, to give him massages, often having them undress and perform sexual acts. Epstein also used the girls as recruiters, paying them to bring him other underage girls. Courtesy of Royal Caribbean
    Courtney Wild’s relentless quest for justice has led to a bipartisan push for sweeping reforms.
  8. Scott Israel, former Broward County Sheriff speaks during a news conference on Sept. 25, in Davie. A Florida Senate official is recommending that the sheriff, suspended over his handling of shootings at a Parkland high school and the Fort Lauderdale airport, should be reinstated. BRYNN ANDERSON  |  AP
    Naples lawyer Dudley Goodlette was threatened shortly after he made his recommendation last month.
  9. Rep. Jamie Grant, R- Tampa and Senator Jeff Brandes, R- St. Petersburg listen to Amendment 4 debate in the Florida Senate on Thursday. [SCOTT KEELER   |   Times] SCOTT KEELER  |  Tampa Bay Times
    “I think some of the points of the judge were well-made," Sen. Jeff Brandes said.
  10. Tiffany Carr — shown during a 2004 visit to a Hollywood nail salon, where she spoke on domestic violence — did not respond this past week to requests from the Miami Herald to address her $761,560 annual salary. She is head of the Florida Coalition Against Domestic Violence. [Bob Eighmie Miami Herald file photo]
    The Florida Department of Children and Families started a review of a domestic violence nonprofit’s finances last summer after it was reported that its CEO Tiffany Carr was paid $761,000. The state...
Advertisement
Advertisement
Advertisement