Florida appeals court rejects chiropractors’ challenge of anti-solicitation law

Monday, April 26, 1999

A Florida anti-solicitation law designed to prevent insurance fraud and rising premiums does not violate the commercial free-speech rights of two chiropractors, a state appeals court has ruled.

The law provides that “it is unlawful for any person … to solicit any business … for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits.”

Chiropractors Renny Edelson and Daniel Barr were charged with violating the law because of their relationship with a business that scheduled chiropractic appointments for people involved in auto accidents.

After purchasing an auto accident report, the business would solicit someone on the report and schedule an initial appointment with Edelson and Barr. The chiropractors would then bill the person's insurance company if they determined that treatment was needed.

Edelson and Barr pleaded no contest to the charge of conspiracy to commit unlawful insurance solicitation. Under this plea, the chiropractors reserved the right to challenge the constitutionality of the law on appeal.

The chiropractors contended the law restricted their commercial speech. In Barr v. State of Florida, the Florida appeals court agreed that “commercial speech is entitled to some First Amendment protection.”

The appeals court applied the U.S. Supreme Court's four-part test to determine whether the Florida law violated the commercial-speech doctrine. Under the high court's 1980 decision in Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of N.Y., a court must determine whether the speech at issue concerns lawful activity and is not misleading. Second, the court must determine whether the state interest in the law serves a substantial interest. Then, the court asks whether the law directly advances the state's substantial interest. Finally, the court asks whether the law is narrowly drawn.

The Florida appeals court found on April 21 that the state had a substantial interest in preventing insurance fraud and rising premiums. The court also ruled that the law directly advanced the state's goals and was narrowly drawn.

“Although not the least restrictive means available to achieve the state's purpose, we hold the ban on such solicitation is reasonably tailored to the state's interest in preventing insurance fraud and raised premiums,” the court wrote.

Florida Assistant Attorney General James Carney said the decision was “correctly decided.”

“This issue has been litigated quite a bit in the Florida trial courts and all the courts have ruled that the statute is constitutional,” Carney said.

A call placed to the attorney for the chiropractors was not returned.