Florida

• Pages: 131-144

131

CHAPTER 11

FLORIDA

A. Scope of the Statute and Elements of a Cause of Action

The Florida Deceptive and Unfair Trade Practices A ct (FDUTPA)1 is

intended to “protect the consuming public and legitimate business

enterprises from those who engage in unfair methods of competition, or

unconscionable, deceptive, or unfair acts or practices in the conduct of any

trade or commerce.”2 The act simply states that “[u]nfair methods of

competition, unconscionable acts or practices, and unfair or deceptive acts

or practices in the conduct of any trade or commerce are hereby declared

unlawful.”3 When construing that particular provision, due consideration

and great weight are given to interpretations by the Federal Trade

Commission and the federal courts of section 5(a)(1) of the Federal Trade

Commission Act.4

Deception occurs if there is “a representation, omission, or practice

that is likely to mislead the consumer acting reasonably in the

circumstances, to the consumer’s detriment.”5 To establish deception

under the act, a plaintiff need not prove actual reliance but instead he or

she must prove that an objectively reasonable person would have been

deceived in the same circumstances.6 The act does not define an unfair act

or practice. The Florida Supreme Court applied the FTC’s policy stat emen t

from 1964 in a 2003 opinion,7 whereas a Florida District Court of Appeals

later applied the definition contained in the FTC’s 1980 policy statement.8

1. FLA. STAT. §§ 501.201 through 501.213.

2. Id. § 501.202(2).

3. Id. § 501.204(1).

4. Id. § 501.204(2).

5. Zlotnick v. Premier Sales Grp., 480 F.3d 1281, 1284 (11th Cir. 2007)

(citations omitted).

6. Office of Att’y Gen. v. Wyndham Int’l, 869 So.2d 592, 598 (Fla. Dist. Ct.

App. 2004); Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983-84 (11th Cir.

2016).

7. PNR, Inc. v. Beacon Prop. Mgmt., 842 So. 2d 773, 777 (Fla. 2003) (“An

unfair practice is “one that ‘offends established public policy’ and one that

is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious

to consumers.’”).

8. Porsche Cars N. Am. v. Diamond, 140 So. 3d 1090, 1096-97 (Fla. Dist. Ct.

App. 2014) (adopting the 1980 FTC Po licy Statement standard of