Florida/Georgia Personal Injury & Workers Compensation

...ount II of the Complaint, and Burger King's Motion for Summary Judgment is DENIED as to Count II. C. Count III: Violation of Florida Sale of Business Opportunities Act In Count III of the Complaint, Barnes alleges that Burger King violated Fla.Stat. § 559.809(3) "by purposefully misrepresenting its encroachment policy to BARNES and failing to disclose its efforts to establish more Burger King franchises than it is reasonable to expect the subject market area to sustain." Complaint at ¶ 55. Barnes further alleges that Burger King violated Fla.Stat. § 559.809(9) "by awarding another Burger King franchise in the same territory within which it represented and promised to BARNES that it would not permit such additional franchises." Complaint at ¶ 56....

...damages for breach of contract. IV. Florida's Sale of Business Opportunities Act—Count VI In Count VI of the Second Amended Complaint, Plaintiffs seek damages for a violation of the Florida Sale of Business Opportunities Act ("FSBOA"). Fla. Stat. §§ 559.809 et seq....

...§ 559.813(3) (emphasis added). Therefore, *1301 under FSBOA, plaintiffs are entitled to recover damages for both breach of contract and any other violation of FSBOA. In this case, the Plaintiffs maintain that, in addition to breach of contract, the Defendants violated both Section 559.809 and Section 559.811 of the Florida Statutes. [6] Thus, even if the Court accepted the Defendants' contentions regarding the breach of contract and fraud claims, the Plaintiffs could still maintain a FSBOA claim under Section 559.809 and Section 559.811. Accordingly, the Plaintiffs may establish a claim under FSBOA for breach of contract and violation of Section 559.809 and Section 559.811 of the Florida Statutes....

...Plaintiffs from third party infringement. Instead, Plaintiff relies on parol evidence to support a finding that the use of the term exclusive creates an affirmative duty for the Defendants to protect the Plaintiffs from third-party infringement. [6] Section 559.809(6), Florida Statutes, states that "[b]usiness opportunity sellers shall not (6) misrepresent, by failure to disclose or otherwise, the termination, transfer, or renewal provision of a business opportunity agreement....

...he quantity and quality of the products to be sold or distributed through the business opportunity to HAMILTON RASCH and others as set forth and named in Count One above, to wit: vending machines sales and service routes, contrary to Florida Statute 559.809(4)....

...Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellant. James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellee. HALL, Judge. The state appeals the order of the trial court declaring section 559.809(1), Florida Statutes (1989), unconstitutionally vague and overbroad and dismissing the count of the information charging McCarthy with violation of that statute. We affirm. Section 559.809(1) states that "[b]usiness opportunity sellers shall not: (1) Misrepresent the prospects or chances for success of a proposed or existing business opportunity." Any person found to have engaged in such conduct is guilty of a third degree felony. § 559.815, Fla. Stat. (1991). We agree with the trial judge that section 559.809(1) is unconstitutionally vague....

...d in a manner that does not encourage arbitrary and discriminatory enforcement"). As the trial judge noted, the prospects for success of business opportunities, especially proposed business opportunities, are by definition speculative. Consequently, section 559.809(1) invites arbitrary and discriminatory enforcement because it does not define what constitutes a misrepresentation of the prospects for success of a speculative activity....

...opportunity is unsuccessful? What if a misrepresentation about the prospects for success of a particularly risky business opportunity was made but the opportunity ultimately proves to be successful? We also agree with the trial judge's finding that section 559.809(1) is overbroad....

...Because the statute necessarily concerns oral or written communication, and because it does not sufficiently define what communication is prohibited, it could easily be applied to prohibit communication protected by the First Amendment. S.E. Fisheries, 453 So.2d at 1353. Accordingly, we affirm the trial judge's order finding section 559.809(1), Florida Statutes (1989), unconstitutional and dismissing count I of the information filed against McCarthy....

...Count II concerned purported misrepresentations regarding the prospects for success of a franchise, in violation of section 817.416, Florida Statutes (1983). Count III alleged misrepresentation concerning the expected profits and/or the quantity or quality of the franchises to be sold, in violation of section 559.809, Florida Statutes (1983)....