CopyCited 1 times | Published | District Court, M.D. Florida
...Accordingly, Plaintiffs breach of contract claim will not be dismissed at this time. 1 B. Restitution and Disgorgement and Unjust Enrichment Plaintiffs claims for unjust enrichment and restitution and disgorgement are premised on Defendant’s alleged violation of section 560.204, Florida Statutes, which provides, in relevant part: Unless exempted, a- person may not engage in, or in any manner advertise that they engage in, the selling or issuing of payment instruments or in the activity of a money transmitter, for compensation, without first obtaining a license under this part. For purposes of this section, “compensation” includes profit' or loss on the exchange of currency. Fla. Stat. § 560.204 (1). The parties agree that there is no private right of action for violations of this statute. Instead, Plaintiff argues that section 560.204 renders any contract with an unlicensed money transmitter illegal and void, and therefore, Plaintiff can maintain common law causes of action for restitution - and disgorgement and for unjust enrichment....
...context of the statute at issue here. The first is Pincus v. Speedpay, Inc.,
161 F.Supp.3d 1150 (S.D. Fla. 2015). In Pincus , the plaintiff brought common law claims of unjust enrichment and money had and received based on, inter alia, violations of section
560.204....
...ith all unlicensed persons are unehforceable (emphasis added) (quotation omitted)). This view of the Florida case law also reconciles with the approaches taken by the Eleventh Circuit in Silver Star and Buell . 2 Accordingly, the Court must look! to section 560.204 to determine whether the statute provides any indication—explicit or implicit—that contracts with a money transmitter who is not properly licensed are void and illegal. It does not. The enforcement of section 560.204 is delegated to the Office of Financial Regulation of the Financial Services Commission....
...§
560.116 (“Any person having reason to believe that a provision of this chapter is being violated, has been violated, or is about to be violated, may file a complaint with the office setting forth the details of the alleged violation.” (emphasis added)). Because section
560.204 does not render agreements with money transmitters who are unlicensed thereunder unenforceable, Plaintiff cannot bring common law causes of action for restitution and disgorgement and unjust enrichment on the basis that Defendant was unlicensed. 3 Count II will be dismissed and, to the extent Count III is based on section
560.204, it will also be dismissed....
...FDUTPA Plaintiff brings two claims under FDUT-PA. The first is based on Defendant’s alleged deceptive and unfair practice of advertising a certain price and then charging customers a higher price (Count IV). The second is based on Defendant’s alleged violations of sections
560.204 and
817.41, Florida Statutes, (Count V)....
...d, he suffered no damages. As set forth above, this argument requires the Court to engage in factual determinations, which is inappropriate on a motion to dismiss. As to Plaintiff’s second FDUTPA claim, Defendant argues that a violation of neither section
560.204 nor section
817.41 could possibly constitute a per se violation of FDUTPA because those sections do not proscribe unfair or deceptive trade practices....
...nder both the private'right of action in §
817.41 and FDUTPA); Izadi v. Machado (Gus) Ford, Inc.,
550 So.2d 1135, 1140-41 (Fla. 3d DCA 1989) (same). Thus, Count V states a claim insofar as it alleges a violation of section
817.41. ■ Violations of section
560.204, on the other hand, cannot serve as a predicate for a FDUTPA claim....
...ractices,” as set forth in section
501.203(3)(c). Thus, Plaintiff cannot circumvent the requirements of section
501.203(3)(c) by merely labeling his claim as something else. Further,, Plaintiff argues that his claim is baséd -not on violations of section
560.204 but, instead, on Defendant’s efforts to “es-cap[e] the purview of extensive regulatory bodies and law.” (Doc. 21 at 20), The Court commends Plaintiff for his creativity, but this argument is simply another attempt to label a section
501.203(3)(c) FDUTPA claim as something else. Specifically, section
560.204 requires regulatory licensing; therefore, “escaping” such regulations amounts to violating that statutory provision. And, as Plaintiff seems to implicitly concede as he does not argue otherwise, section
560.204 does not proscribe unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. Therefore, it cannot serve as a basis for a FDUTPA claim. Count V will be dismissed to the extent it relies on violations of section
560.204....
...Conclusion In accordance with the foregoing, it is ORDERED and ADJUDGED as follows: 1. Defendant’s Motion to Dismiss (Doc. 13) is GRANTED in part. *1298 2. Count II is DISMISSED with prejudice. 3. Count III is DISMISSED with prejudice insofar as it attempts to base an unjust enrichment claim on alleged violations of section 560.204. 4. Count V is DISMISSED with prejudice insofar as it predicates a FDUT-PA -claim on violations of section 560.204....
...However, that case addresses the methodology courts should employ to determine whether a private right of action exists under a statute, see generally id., as opposed to the situation here, where the question is not whether there is a private right of action under section 560.204, but rather, whether Plaintiff can bring a common law claim based on the fact that the contract was purportedly rendered void due to a violation of 560.204....
CopyPublished | Supreme Court of Florida
...In addition
to the $158 penalty, Pincus paid ATS a 5% convenience fee of
$7.90. Id.
Pincus subsequently filed a putative class action in the United
States District Court for the Southern District of Florida, arguing
the convenience fee was prohibited by sections
316.0083(b)(4),
318.121, and
560.204, Florida Statutes (2017), and ATS was
therefore unjustly enriched by retaining the fee....
...) ATS’s fee was
not prohibited under section
318.121 because this statute only
applies to violations assessed under chapter 318, Florida Statutes
(2017), and Pincus’s violation was assessed under chapter 316,
Florida Statutes (2017); and (3) section
560.204 does not provide a
-3-
private right of action, as violations of this statute are enforced by
the Financial Services Commission’s Office of Financial Regulation.
Id....
...Stat.
§
316.0083(1)(b)(4)?
b. Was the fee assessed under Chapter 318
and therefore subject to §
318.121’s surcharge
prohibition?
c. Was ATS a “money transmitter” that was
required to be licensed under Fla. Stat.
§
560.204(1)?
(2) If there was a violation of a Florida statute, can that
violation support a claim for unjust enrichment? In
particular:
a....
...We find that, as a matter of Florida law, he cannot, and that
this is determinative of the other questions before us. Pincus
argues it would be unjust for ATS to retain a fee collected in
violation of Florida law, specifically, sections
316.0083(1)(b)4,
318.121, and
560.204, Florida Statutes (2021)....
CopyPublished | Court of Appeals for the Eleventh Circuit
...On appeal, Pincus argues that the district court erred in dismissing his
complaint because (1) the fee ATS charged him was an illegal commission under
Florida Statutes §
316.0083(b)(4); (2) the fee was a prohibited surcharge under
§
318.121; and (3) ATS violated §
560.204(1) because it operated as an unlicensed
money transmitter, all violations that he contends support a claim for unjust
enrichment under Florida law.1
Each count of Pincus’s unjust enrichment claim turns on the proper
applicatio...
...After paying the fee, Pincus
filed this putative class action in the United States District Court for the Southern
District of Florida, alleging three counts of unjust enrichment based on violations
of Florida Statutes §§
316.0083(b)(4),
318.121, and
560.204.
5
“Doc.” numbers refer to the district court’s docket entries.
6
ATS sent the notice on the City’s behalf.
4
USCA11 Case: 19-10474...
...3d 28, 33 (Fla. Dist. Ct. App. 2017) (internal
quotation marks omitted).
7
USCA11 Case: 19-10474 Date Filed: 02/02/2021 Page: 8 of 31
statutes: §§
316.0083 (Count I),
318.121 (Count II); and
560.204 (Count III).
Thus, the third element of each of Pincus’s unjust enrichment counts turns on the
proper interpretation of a different Florida statute.
All three counts also turn on issues of Florida common law....
...After careful review, we could find no decision from the Supreme
Court of Florida, any Florida appellate court, or this Court answering whether
Pincus’s penalty was assessed under Chapter 318 for purposes of §
318.121.
3. Count III: Violation of Fla. Stat. §
560.204
In Count III, Pincus alleged that ATS was unjustly enriched by his fee
because, in collecting it, ATS violated §
560.204(1). Section
560.204(1) provides:
Unless exempted, a person may not engage in, or in any manner
advertise that they engage in, the selling or issuing of payment
18
USCA11 Case: 19-10474...
...instruments or in the activity of a money transmitter, for compensation,
without first obtaining a license under this part. For purposes of this
section, “compensation” includes profit or loss on the exchange of
currency.
Fla. Stat. §
560.204(1). The parties dispute whether ATS is exempt from this
statute’s licensing requirement, and, if not, whether ATS is a “money transmitter”
who must “obtain[] a license.”11 Id.
ATS argues that it did not violate §
560.204 for two reasons. First, ATS
points out that “political subdivision[s],” including cities, are exempt from all
provisions of Chapter 560, including §
560.204’s licensing requirement. See id. §§
560.204(1) (requiring licensure unless an exemption exists),
560.104(3)
(exempting “political subdivision[s]” of the state from Chapter 560),
1.01(8)
(including cities as “political subdivision[s]”)....
...the City,” and “Pincus’[s] theory is that ATS is an agent of the City.” Appellee’s
Br. at 27. For his part, Pincus responds that ATS’s status as an “agent of the City”
11
The district court, without ruling on whether ATS violated § 560.204(1), concluded
that § 560.204(1) “cannot serve as the basis for a common law unjust enrichment claim.” Doc.
44 at 17. Because that conclusion implicates issues of Florida unjust enrichment law, rather than
the proper interpretation of Fla. Stat. § 560.204(1), we address the district court’s conclusion on
this point below.
19
USCA11 Case: 19-10474 Date Filed: 02/02/2021 Page: 20 of 31
does not transform it into a “political subdivision” that is exempt from § 560.204’s
licensing requirement. Reply Br. at 12.
Second, ATS argues that even if it cannot avail itself of the City’s
exemption, it nevertheless did not violate § 560.204 because it is not a “money
transmitter” that “receive[s]” currency “for the purpose of transmitting it.”
Appellee’s Br....
...Reply Br. at 12.
20
USCA11 Case: 19-10474 Date Filed: 02/02/2021 Page: 21 of 31
So, the parties dispute whether ATS acted as an unlicensed money
transmitter in violation of § 560.204. As with the first two statutory interpretation
issues, after careful review, we could find no decision from the Supreme Court of
Florida, any Florida appellate court, or this Court answering whether ATS’s
conduct was prohibited by § 560.204.
B....
...Private Right of Action
We first examine whether, under Florida common law, a plaintiff may allege
unjust enrichment based on the violation of a statute that provides no private right
of action. 12 The district court addressed this issue, though only with respect to
ATS’s alleged violation of § 560.204, so we start there.
12
Pincus did not allege, and has never argued, that he could bring his counts directly
under the Florida statutes at issue, and we have found nothing to suggest that he could have.
21
USCA11 Case: 19-10474 Date Filed: 02/02/2021 Page: 22 of 31
The district court concluded that § 560.204(1), which outlaws unlicensed
money transmitters, “cannot serve as a basis for a common law unjust enrichment
claim.” Doc....
...when the scheme “opens a door for plaintiffs to assert their rights, [like] in Silver
Star,” common law claims may proceed even when premised on statutory
violations. Doc. 44 at 16–17 (internal quotation marks omitted). Applying that
rule to § 560.204, the district court dismissed Pincus’s count under Chapter 560
because the chapter provides only for administrative enforcement of its provisions.
See Fla....
...a provision of this chapter is being violated, has been violated, or is about to be
violated, may file a complaint with the [Financial Services Commission’s Office of
Financial Regulation]”). The court noted that nowhere does Chapter 560 suggest
that a violation of § 560.204 may serve as a basis for a common law unjust
enrichment claim.
Pincus resists the district court’s reading of our cases, arguing that the
language of § 560.204 opens the door to an unjust enrichment action for him just
as the statutory language in Silver Star did for State Farm....
...He contends that the
24
USCA11 Case: 19-10474 Date Filed: 02/02/2021 Page: 25 of 31
Florida Health Care Clinic Act’s treatment of claims made by wrongfully
unlicensed clinics as “unlawful,” “noncompensable,” and “unenforceable” is
analogous to §
560.204’s dictate that unlicensed money transmitters may not
operate “for compensation.” Thus, Pincus argues, by operating “for
compensation,” ATS made an unlawful, unenforceable transaction that can support
an unjust enrichment action.
We reiterate that each count of Pincus’s unjust enrichment claim—not just
his count based on §
560.204—raises the issue of whether plaintiffs may assert
unjust enrichment based on statutory violations with no private right of action.
Like §
560.204, neither §
316.0083 nor §
318.121 establishes a private right of
action for a violation....
...Was the fee assessed under Chapter 318 and therefore subject to
§
318.121’s surcharge prohibition?
c. Was ATS a “money transmitter” that was required to be
licensed under Fla. Stat. §
560.204(1)?
(2) If there was a violation of a Florida statute, can that violation support a claim
for unjust enrichment? In particular:
a....
