Civil Recovery in the Sunshine State

Many people are familiar with civil recovery demands in Florida for $200 and use that amount as requested statutory damages for any civil shoplift or internal theft demands made. However, they may be leaving money on the table by not pursuing civil theft claims for what the Legislature of Florida intended.

Florida Statutes Section 772.11 provides that “[a]ny person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of [Florida Statutes Sections] 812.012 – 812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.”¹ A corporation is entitled to the civil remedy described above because a corporation is considered a person under the law in Florida.²

Section 772.11 points to the definitions of theft found in Sections 812.012 – 812.037 to help determine whether a person’s conduct gives rise to the civil damages in Section 772.11. Section 812.014 defines theft broadly stating that, “A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.”³ Florida also defines property broadly and includes cash, real or personal property (whether tangible or intangible – think credit fraud) as well as theft of services, which gives rise to civil theft claims for, among other things, time card fraud and admissions to places of exhibition or entertainment.⁴ Furthermore, Section 812.015 defines retail theft as “the taking possession of or carrying away of merchandise…with intent to deprive the merchant of possession, use, benefit, or full retail value.”⁵ Additionally, a person can be liable under Section 812.015 for acting in concert with one or more other individuals to “. . . distract the merchant . . . in order to carry out the offense”⁶ or can be held liable under Section 812.015 even if an individual purchases “. . . merchandise in a package or box containing merchandise other than, or in addition to, the merchandise purported to be contained in the package or box.”⁷

Please note that while the clear and convincing burden of proof required in Florida is higher than a typical preponderance of the evidence civil standard, it is still considerably lower than the high burden required for conviction in a criminal matter of beyond a reasonable doubt. Therefore, upon a showing of civil theft liability, a retailer may recover the greater of the minimum civil “penalty”/statutory civil damages in the amount of $200 or three times the actual damages. Suffice it to say that most retailers can document hundreds of dollars of actual damages for any incident of theft in their establishment even when they get their merchandise or property back. However, for shoplifting matters, without the need to produce or provide calculations necessary to show the actual damages for the specific external incident, the law allows a retailer or other entity that has been legally “injured” to request $200 as statutory damages even when the merchandise is recovered in merchantable condition.

Are retailers leaving money on the table? What about shoplift cases where the merchandise is valued at $66.67 or higher or where the merchandise is recovered but not merchantable or diminished in value by at least $66.67? What about internal theft cases where the loss is at least $66.67? Multiplying these losses by three times will produce legally contemplated statutory civil demand amounts higher than $200. Damages in the context of civil theft in Florida are normally calculated as the value of the property stolen.⁸ Unlike many other statutes that provide for actual damages apart from statutory damages, Florida’s Section 772.11 includes restitution in its three times (“threefold” or treble damages) calculation.⁹ Therefore, if restitution is paid in a criminal case, the amount paid as restitution could be set off against any statutory civil treble damages request.

Civil theft claims become easier when judgments in underlying criminal claims have been rendered “in favor of the state” because of a Florida statute that allows retailers to prevent civil defendants from denying that they committed theft.¹⁰ This will hold true even if the defendant in the criminal matter pled no contest “nolo contendere.”¹¹ On the other hand, if a criminal defendant gets a verdict of not guilty in Florida, such verdict will be admissible as evidence in a civil case, but it cannot be used to stop a retailer from pursuing the civil case and the retailer would still be entitled to all defenses listed under the merchant detention provisions of the Florida statutes.¹² Many opposing parties seem to think that they will have no civil repercussions if they were not convicted of a criminal theft charge and sometimes think they can proceed with a claim against the retailer just because they were not convicted. However, if the disposition of the criminal claim was by way of a no contest plea in Florida, the retailer may actually be able to get an “automatic” win on civil liability and be entitled to treble the admitted criminal damages in the civil court case!

Retailers may pursue and sue on statutory civil theft claims for up to five years from the date of the incident(s) and if there was a criminal prosecution, the time required for the prosecution plus an additional two years may be added to those five years.¹³

The lawsuits we file in civil court on behalf of retailers often include separate causes of action for statutory civil damages pursuant to Florida Statutes Section 772.11 as well as either breach of contract if a promissory note was signed by a dishonest associate and was not paid or a balance remains or for conversion if a promissory note was not signed. The statute of limitations for breach of contract claims in Florida is five years¹⁴ and the statute of limitations for claims of conversion (to recover personal property or for the taking, detaining or injuring of personal) property is four years.¹⁵ Some retailers choose to request one amount in the initial pre-suit stage and then raise the amount requested once they have decided to litigate. Because Florida law requires that notice be given to an opposing party prior to actually filing suit, at some point in the process, you need to let the opposing party know the full amount you will be requesting in court apart from attorney’s fees and costs. Despite being limited to a total of three times the loss, doesn’t it make sense to request the full three times amount at the civil recovery stage in an effort to maximize the chances at recovery at some point down the road?

1. Fla. Stat. § 772.11 (2011).
2. Fla. Stat. § 1.01(3) (2011).
3. Fla. Stat. § 812.014 (2011).
4. Fla. Stat. § 812.012 (2011).
5. Fla. Stat. § 812.015 (2011).
6. Fla. Stat. § 812.015(8)(c) (2011).
7. Fla. Stat. § 812.015(8)(d) (2011).
8. See Anthony Distribs. v. Miller Brewing Co., 941 F. Supp. 1567, 1576-1577 (M. D. Fla. 1996).
9. ; Fla. Stat. § 775.089(8) (2011)(“. . . An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.”); See Ocala Jockey Club, LLC v. Rogers, 981 So.2d 1245, 1247 (Fla. Dist. Ct. App. 5th Dist. 2008).
10. Fla. Stat. § 772.14 (2011).
11. See Starr Tyme v. Cohen, 659 So.2d 1064, 1066 (Fla. 1995).
12. Fla. Stat. § 772.15 (2011); See also Fla. Stat. §812.015(3-5) (2011).
13. Fla. Stat. § 772.15 (2011).
14. Fla. Stat. § 95.11(2)(b) (2011).
15. Fla. Sta. § 95.11(3)(h)-(3)(i) (2011).