Karen Kidd Mar. 17, 2016, 4:20pm


TALLAHASSEE – Florida Attorney General Pam Bondi will appeal a loss in four companies' constitutional challenge to the state's "no surcharge" laws, which bar surcharges on credit card purchases, to the U.S. Supreme Court, a spokesperson said.

"Our office intends to seek review of the decision in the Supreme Court," said Kylie Mason, Bondi's press secretary said.

In her motion filed with the U.S. District Court for the Northern District of Florida, Bondi agreed not to enforce the Florida Statute, § 501.0117, that the U.S. Court of Appeals for the 11th Circuit ruled in November to be a violation of the First Amendment.

Florida's case is in stark contrast to how a similar lawsuit was ruled upon in another appeals court. In the fall, the Second Circuit ruled a New York state law prohibiting merchants from imposing the surcharge on credit card purchases is not a violation of the First Amendment or the Due Process Clause.

The law is not a First Amendment violation because it regulates conduct rather than speech, according to that ruling.

Florida and New York are not the only states with "no surcharge" laws. The others include California, Colorado, Connecticut, Kansas, Maine, Massachusetts, Minnesota, Oklahoma and Texas.

California's and Texas' "no surcharge" laws have been challenged in lawsuits claiming First and 14th Amendment violations. Earlier this month, the U.S. District Court for the Western District of Texas, Austin Division, ruled that the Texas "no surcharge" law does not violate the First Amendment.

Instead, the law "ensures only that merchants do not impose an additional charge above the regular price for customers paying with credit cards," the ruling said.

With contrasting rulings at the appeals level about whether credit card surcharges place unconstitutional restrictions on free speech, the U.S. Supreme Court might find Bondi's petition for certiorari too important to not hear.

The Florida lawsuit, Dana's Railroad Supply et al vs Florida's Attorney General, was filed by four businesses that had received cease-and-desist letters from Bondi telling them to stop requiring surcharges from their credit card customers.

Plaintiffs in the case claim that Florida’s "no surcharge" law violates their First Amendment guaranteed freedom of speech.

The "no surcharge" laws in both Florida and New York allow merchants to offer a discount to customers who don't pay with credit cards. Plaintiffs in both the New York and Florida cases labeled their price differential as a “surcharge”.

In the Florida case, the District Court granted Bondi's motion to dismiss, ruling the law in that state met the rational-basis review and, though possibly a restriction on commercial speech, did not violate the First Amendment.

The Eleventh Circuit reversed the District Court decision, ruling 2-1 that Florida's "no surcharge" law to be an abridgement of free speech and, therefore, a violation of the First Amendment.

In January, the Eleventh Circuit rejected the Bondi's request for full court review. On Feb. 23, Bondi filed her intent to appeal to the U.S. Supreme Court.

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