Moon-Vileno v. Fla. Ass'n of Ct. Clerks, Inc.

383 So.3d 128

Teresa MOON-VILENO, an individual, and Deborah Lynn Felty, an individual, Appellants,

v.FLORIDA ASSOCIATION OF COURT CLERKS, INC., a Florida not for profit corporation, FACC Services Group, L.L.C, d/b/a Civitek, a Florida Limited Liability Company, and Civitek National, Inc., a Florida profit Corporation, Appellees.

No. 1D2022-1106

District Court of Appeal of Florida, First District.

January 24, 2024

Rehearing Denied April 2, 2024

On appeal from the Circuit Court for Leon County. J. Layne Smith, Judge.

Debra L. Rosenbluth, Debra Rosenbluth Law, PLLC, Winter Park; Jeffrey M. Liggio, Jason Cornell, Liggio & Cornell, P.A., West Palm Beach; Philip M. Burlington, Adam Richardson, Burlington & Rockenbach, P.A., West Palm Beach, for Appellants.

Barry Richard, Greenberg Traurig, P.A., Tallahassee, for Appellees.

B.L. Thomas, J.

Appellants filed a class action complaint seeking a declaratory judgment that Appellees violated section 215.322(5), Florida Statutes.

The complaint asserted that Appellees collected a convenience fee in excess of the amount needed to pay the lawful service fee charges for credit card processing services used in collecting payments to court clerks.^* The lower court granted summary judgment in favor of Appellees, finding that section 215.322(5) did not apply to private entities. The lower court also found that even if section 215.322(5) did apply, Appellants had no standing to enforce the statute because the Legislature did not create a private right of action.

Appellee Florida Association of Court Clerks, Inc. ("FACC"), is a private corporate association with its membership composed of the Florida Court Clerks. FACC created Appellee FACC Services Group, LLC, d/b/a Civitek ("FACC Services") as a wholly-owned subsidiary in order to provide technical services to state agencies in Florida and other states. Among these services is processing for credit card payments made to court clerks for court filing fees, fines, and other payments.

Section 215.322(2), Florida Statutes, authorizes a "state agency" to accept credit cards:

A state agency as defined in s. 216.011, or the judicial branch, may accept credit cards, charge cards, debit cards, or electronic funds transfers in payment for goods and services with the prior approval of the Chief Financial Officer. If the Internet or other related electronic methods are to be used as the collection medium, the state chief information officer shall review and recommend to the Chief Financial Officer whether to approve the request with regard to the process or procedure to be used.

Section 215.322(3)(b) provides that the Chief Financial Officer shall adopt rules concerning the acceptance of credit cards, including

[p]rocedures that permit an agency or officer accepting payment by credit card, charge card, debit card, or electronic funds transfer to impose a convenience fee upon the person making the payment. However, the total amount of such convenience fees may not exceed the total cost to the state agency.

(emphasis added).

Section 215.322(5), Florida Statutes, provides:

A unit of local government, including a municipality, special district, or board of county commissioners or other governing body of a county, a consolidated or metropolitan government, and any clerk of the circuit court, sheriff, property appraiser, tax collector, or supervisor of elections, is authorized to accept payment by use of credit cards, charge cards, bank debit cards, and electronic funds transfers for financial obligations that are owing to such unit of local government and to surcharge the person who uses a credit card, charge card, bank debit card, or electronic funds transfer in payment of taxes, license fees, tuition, fines, civil penalties, court-ordered payments, or court costs, or other statutorily prescribed revenues an amount sufficient to pay the service fee charges by the financial institution, vending service company, or credit card company for such services. A unit of local government shall verify both the validity of any credit card, charge card, bank debit card, or electronic funds transfer used pursuant to this subsection and the existence of appropriate credit with respect to the person using the card or transfer. The unit of local government does not incur any liability as a result of such verification or any subsequent action taken.

(emphasis added). Section 216.011(1)(ww), Florida Statutes, defines a "state agency" as

any official, officer, commission, board, authority, council, committee, or department of the executive branch of state government. For purposes of this chapter and chapter 215, "state agency" or "agency" includes, but is not limited to, state attorneys, public defenders, criminal conflict and civil regional counsel, capital collateral regional counsel, the Justice Administrative Commission, the Florida Housing Finance Corporation, and the Florida Public Service Commission. Solely for the purposes of implementing s. 19(h), Art. III of the State Constitution, the terms "state agency" or "agency" include the judicial branch.

There is no dispute that FACC is generating a profit from credit card processing fees. Appellants assert that the vast majority of Florida clerks use FACC Services to process credit card payments for government services. Appellants also assert that FACC Services is the only payment processor in counties that use FACC Services. In these Florida counties, Appellants contend, FACC Services typically collects an inflated convenience fee for credit card processing of 3.5% of the amount charged, whereas the industry standard convenience fee is 2.5%. Thus, for example, in almost every credit card payment of a traffic ticket, court filing fee, or child support payment in this state, Appellants contend FACC is receiving a 1% profit from the payor. Appellants claim that the FACC has never sought requests for proposals to provide credit card processing services from any other credit card payment processor.

The FACC has also formed a separate wholly owned, for-profit entity called Civitek National that subcontracts with FACC Services to provide payment processing services to non-Florida jurisdictions, Civitek National charges a 2.5% convenience fee.

Appellants contend that 25% to 30% of FACC Services’ business consists of credit card processing. For just the website www.myfloridacounty.com, which...