IN THE 11TH JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

CASE NO CASE NO: 15-167 AP
L.T. No.: 2014-10561 CC 25

RAMI SHMUELY,
Appellant,
vs.
SALOMON CONSTRUCTION &
ROOFING CORP.,
Appellee.

On Final Review from the County Court

In and For Miami-Dade County, Florida
APPELLEES ANSWER BRIEF

Richard C. Wolfe, Esq.

Wolfe Law Miami, P.A.
Counsel for Appellee
Salomon Construction & Roofing Corp.
175 SW. 7th Street, Suite 2410
Miami, Florida 33130
Telephone: (305) 384-7370

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................ iii
PREFACE ................................................................................................................. v
INTRODUCTION.................................................................................................... 1
STANDARD OF REVIEW ..................................................................................... 2
SUMMARY OF ARGUMENT ............................................................................... 3
RESPONSE TO APPELLANTS STATEMENT OF THE CASE AND
FACTS ....................................................................................................................... 3
ARGUMENT ............................................................................................................ 5
A. The Language1 Used By The Defendant Was Not Profane, Nor
Obscene ........................................................................................................ 6
B. The Language Used Is Protected By The First Amendment And The
Florida Constitution .................................................................................. 11
C. The FCCPA Was Never Intended To Regulate Pure Speech (Without
Further Abusive Collection Tactics) ......................................................13
D. Appellant Attempts To Mislead The Court As To The Reasons Why
The Trial Court Granted Defendants Motion For Summary
Judgment .................................................................................................... 16
E. The Court Should Ignore Appellants FCC Argument That Was Not
Raised Below .............................................................................................. 19
CONCLUSION....................................................................................................... 19

Counsel for Appellant apologizes to the Court to the extent that four letter words are used in this Answer Brief; however,
counsel wishes to be accurate. Counsel made the same apology to the trial court and Appellant now argues (in his Initial Brief)
that the apology is indicative that the language used by Mr. Susi is profanity per se. However, language used by a tradesman
(to a debtor/lawyer who refuses to pay a legitimate bill) cannot be held to the standard as language that lawyers use when
formally addressing a court of law.

ii

TABLE OF AUTHORITIES
Cases
Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) .................. 2
Brown v. State, 358 So. 2d 16 (Fla. 1978) ................................................................. 6
Miller v California, 413 U.S. 15, 93 S. Ct 2607 (U.S. 1972) .................................... 6
Meininger v. Green Tree Servicing, LLC, 2012 WL 1166161 (M.D. Fla. 2012) ...... 7
Kelemen v. Professional Collections Systems, 2011 WL 31396 (M.D. Fla. 2011) ... 7
Montgomery v. Fla. First Fin. Grp., Inc., 2008 WL 3540374, at 6 (M.D. Fla.
Aug.12, 2008) ....................................................................................................... 7,15
Cohen v. California, 403 US 15 (1971) ................................................................ 7,11
Hagler v. Credit World Servs., 2014 U.S. Dist. LEXIS 139241 (U.S. Dist. Ct. Kan.
2015) ..................................................................................................................8,9,18
Linko v. Natl Action Fin. Servs., 2007 U.S. Dist. Lexis 98718 (M.D. PA. 2007) ... 9
Luke Records v. Navarro, 960 F. 2d 134 (11th Cir. 1992) ...................................... 10
Horkey v. J.V.D.B. & Assocs., 333 F.3d 769 (7th Cir. Ill. 2003) .......................10,16
L.A.T. v. State, 650 So. 2d 214, 217 (Fla. 3d DCA 1995) ....................................... 11
W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000)................................................ 11
Roth v. United States, 354 U.S. 476 (1957) ............................................................. 11
State v. Saunders, 339 So. 2d 641 (Fla. 1976) ........................................................ 11
Cohen v. California, 403 U.S. 15 (1971) ...........................................................11,13
Harris v. Beneficial Finance Co., 338 So. 2d 196 (Fla. 1976) .....................12,13,15
Reed v Town of Gilbert, 135 S. Crt. 2218, 192 L. Ed. 2d 236 (2015) ................... 12
iii

Brown v. State, 358 So. 2d 16 (Fla. 1978) .............................................................. 13

Story v. J. M. Fields, Inc., 343 So. 2d 675 (Fla. DCA 1st 1977) ............................ 13
Household Finance Corp. v. Bridge, 252 Md. 531, 543 (1969) ............................. 14
Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (7th Cir. 1985) .............................14,19
Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 394 (D. Del. 1991) ............... 15
Drossin v. National Action Financial Services Inc., 641 F. Supp. 2d 1314 (S.D. Fl.
2009) ....................................................................................................................... 17
Walker v. Asset Acceptance, LLC, 2012 US DIST. LEXIS 95128 (D. NJ. 2012) . 17
United States v. Central Adjustment Bureau Inc., 667 F. SUPP. 370 (N.D. Texas
1986) ....................................................................................................................... 18
Johnston v. Hudlett, 32 So. 3d 700 (Fla. 4th DCA 2012) ........................................ 19
Other Authorities
F.S. 559.72 (8) ........................................................................ 1, 3, 6, 7, 8, 9, 14 &16
F.S. 559.72 (2) ..................................................................................................... 2, 21
F.S. 847.04 ........................................................................................................... 6, 15
F.S. 847.001 (10) ....................................................................................................... 6
F.S. 559.72 ............................................................................................................... 14
Federal Act Section 1692(d) ..............................................................................15, 16
F.S. 559.72 (4) ......................................................................................................... 16
First Amendment.................................................................................................... 1, 3

iv

PREFACE
Citation to the record is as follows: R,____, Citation to the Transcript of
the April 22, 2015 Hearing on the Motion for Summary Judgment is as follows:
T:__. (which is attached hereto).

INTRODUCTION
Appellant admits he is a lawyer specializing in suing debt collectors under
the Florida Consumer Collections Practices Act (the FCCPA). Appellant
contracted Appellee to put a new roof on his house. The roof was completed, but
yet, Appellant would not pay for it. In an effort to collect the debt, the owner of
the roofing company allegedly said to Appellant pay your fucking bill don't be
a fucking shlub.
Appellant then paid the bill and immediately filed suit under the FCCPA,
alleging that Appellees collection practices violated the FCCPA, even though he
suffered no damages, thereby forcing Appellee to incur unnecessary legal fees.
Although Appellee denied making the statements complained of, he did for
purposes of his summary judgment motion only, admit that the statements were
made, so there would be no issues of contested facts.
Appellee successfully argued that his alleged statements, would not, as a
matter of law violate the FCCPA because:
1.

The language does not rise to the level of punishable profanity

under F.S. 559.72 (8);

2.

Appellees language, even though commercial speech, is

protected by the First Amendment and the Florida
Constitution; or

3.

The FCCPA was never intended to regulate pure speech,

without further abusive collection tactics on the part of a debt
collector. [See T:4-7.]

Defendant/Appellee filed a motion for summary judgment which was heard

by the trial Judge, Gloria Gonzalez- Meyer. On April 22, 2015, the Trial Court
granted Appellees motion for summary judgment. After Judge Gonzalez-Meyer
was reassigned to another division, Plaintiff/Appellant filed a motion for rehearing,
which was heard by Judge Laura Stuzin, who denied rehearing, finding that
summary judgment was properly entered.
In his brief, Appellant, misstates the record, miscited 6 judicial decisions,
misrepresents the reasons for the trial courts entry of the underlying summary
judgment order and he improperly raises arguments for the first time on appeal.
For these reasons and pursuant to F.S. 559.72(2), Appellee asks this court to
award it his legal fees, as may be reasonably incurred in defense of this appeal.
STANDARD OF REVIEW
This case presents pure issues of law. Since the matter was decided on
summary judgment, the standard of review is de novo. Major League Baseball v.
Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)("The standard of review governing a
trial court's ruling on a motion for summary judgment posing a pure question of
law is de novo."). However, Appellant is incorrect that where an appeal, as here,

turns on pure issues of law, the court should reverse Summary Judgment if the
slightest doubt exists.
SUMMARY OF ARGUMENT
Mr. Shmuely didn't want to pay for his roof and when the roofer used
language to emphasize his demand for money, Mr. Shmuely filed a specious
lawsuit, even though he had suffered no damage by Appellees collection
efforts. In his initial brief, Mr. Shmuely tries to portray himself as a victim and the
Appellee as a bully, but nothing could be further from the truth. The trial judge
characterized Mr. Shmuelys suit as absurd stating this is why people hate
lawyers. [T:14-15] This Court should affirm the summary judgment ruling below
because:
1.

The language allegedly used by the roofer, does not rise to

the level of punishable obscenity under F. S. 559.72(8);

2.

The language used is protected by the First Amendment and

the Florida Constitution;

3.

The FCCPA was never intended to regulate pure speech,

without further abusive or deceptive collection tactics on the
part of a debt collector; and

4.

Appellant misstates the basis of the trial courts rulings.

RESPONSE TO APPELLANTS STATEMENT OF THE CASE AND

FACTS

1.

Appellant owed Appellee a debt (the "Debt") for roofing services.

[R,42-46]. Appellants billing and collection department was unable to collect the
debt from Mr. Shmuely.
2.

On July 30, 2014, Appellees President, Salomon Susi (a Jewish man)

placed a single phone call to Appellant (also a Jewish Man) in an effort to collect
the Debt that his billing & collections department was unable to collect. [T:18]
3.

Appellant is lawyer, who specializes in suing debt collectors for

violations of the FCCPA.

4.

On August 14, 2014, Appellant filed the instant action, claiming that

Mr. Susi violated F. S. 559.72(8) by using obscenities, in that single phone

call when he allegedly said "pay the fucking bill" and "dont be a fucking
shlub". [R, 8-10]
5.

Shlub is a Yiddish word commonly used by Jews, that roughly

translates to unkempt or sloppy. [R, 67-77]

6.

On April 22, 2015, Judge Gonzalez- Meyer entered an order granting

Appellees Motion for Summary Judgment for the reasons stated on the record. [R,
78]
7.

On May 6, 2015, Appellant filed a motion for reconsideration of the

order on Summary Judgment. [R,107-137]

8.

A hearing was conducted on Appellants motion for rehearing and

Judge Laura Stuzin denied same. [R,150]

9.

In his statement of facts, Appellant makes the following incorrect

statements:

10.

A.

Salomon Susi did not repeatedly and repeatedly yell at Mr.

Shmuely. (no record citation);

B.

Salomon Susi did not verbally abuse Mr. Shmuely in

an attempt to collect the debt (no record citation);

C.

Mr. Shmuely did not pay for the roof 5 1/2 months prior to the
instant lawsuit, but rather less than 14 days later. (R, 5-7)

D.

Defendant did not engage a litigation tactics to use Mr.

Shmuely's status as a consumer advocate as a red herring,
nor did Appellee at any time shift litigation tactics or
attempt to deflect the courts attention. (T:4,7)

Appellant misstates the reasons for the Trial Courts entry of the

order granting the Summary Judgment, claiming:

i. Shmuely is not the kind of person that the FCCPA was
meant to protect (see Initial Brief at p 6).
ii. Appellee is not a debt collector and therefore, not bound
by the FCCPA. (see Initial Brief at P. 9)
iii. That the FCCPA does not apply to the primary owner of a
debt. (see Initial Brief at P 10).

ARGUMENT

A.

The Language Used By The Defendant Was Not Profane,

Nor Obscene

Fla. Stat. 559.72(8), states:

(8) [No person shall] [u]se profane, obscene, vulgar, or
willfully abusive language in communicating with the debtor or
any member of her or his family.
Florida has recognized that while obscenity can be regulated, the definition
of what is obscene must be limited and constrained. The court find(s) F.S. 847.04
violates Article I, Section 4, Florida Constitution and consequently, incapable of
redemption. This is so because men of common understanding upon reading the
statute would reasonably conclude that mere utterance of the proscribed language,
without more, could subject them to prosecution. The impermissible chilling effect
upon constitutionally protected speech is apparent. Brown v. State, 358 So. 2d 16
(Fla. 1978). Indeed, Florida law follows the Supreme Court mandate in Miller v
California 413 U.S. 15, 93 S. Ct 2607 (U.S. 1972) recognizing that that there is a
narrow definition of what is obscene. See F.S. 847.001(10) requiring a court to
consider

whether the average person applying contemporary community

standards finds the material to appeal to the prurient interest and depicts in a
patently offensive way sexual conduct. Clearly using the word fucking as an
adjective (merely to emphasize the statement that follows) cannot be deemed
obscene under these standards because such common language fails both of the
Miller prongs.

No appellate court has considered what language violates F.S. 559.72 (8),
however the FCCPA was clearly intended to protect consumers against obscene
language as an inappropriate tactic to collect a debt. Under Florida law, the word
"fucking" (when used as an adjective) does not (as a matter of law) rise to the level
of profanity or obscenity required to violate such statute. Courts have held that
merely rude and/or unpleasant language is not enough to set forth a valid violation
of the federal version of the FCCPA. See Meininger v. Green Tree Servicing, LLC,
2012 WL 1166161 (M.D. Fla. 2012) (holding that "loser" and "deadbeat" are rude
and unpleasant terms, but do not rise to the level of willfully abusive language
required by F.S. 559.72(8); Kelemen v. Professional Collections Systems, 2011
WL 31396 (M.D. Fla. 2011) (holding that "pay your damn bills" does not fall
within the definition of profanity and does not violate Florida Statutes);
Montgomery v. Fla. First Fin. Grp., Inc., 2008 WL 3540374, at 6 (M.D. Fla.
Aug.12, 2008) (The term liar falls short of language akin to profanity or
obscenity and therefore, does not violate F.S. 559.72(8)).
In determining what is obscene or profane, courts are required to consider
the context of the language used. Here, the Trial Court properly considered the
nature of the parties, (one being a tradesmen (a roofer) who use words such as
fucking as part of their everyday parlance especially when used as an adjective
to emphasize a point and the other, being a sophisticated lawyer. See Cohen v.

California, 403 US 15 (1971); and Hagler v. Credit World Servs., 2014 U.S. Dist.
LEXIS 139241 (U.S. Dist. Ct. Kan. 2015). The FCCPA was not enacted to clean
up speech, nor to prevent the use of 4-letter words, but rather to address truly
abusive debt collection tactics and actions. Appellant does not even come close to
showing that the words schlub or fucking (when used as an adjective) is an
obscenity or profanity. A finding that words, alone, are actionable would promote a
storm of litigation, every time a colorful word is used during a business
communication, which would serve to further clog our court system and harm the
public interest.
When directly asked by the Trial Court to do so, Appellant failed to cite a
single case where the use of the word fucking and/or schlub during a single
phone call regarding a debt amounted to a violation of F.S. 559.72(8) or the
related Federal Statute. [T:10-11] None of the cases now cited by Appellant are on
point and Appellant has misstated the holdings in many of the cases that he relies
upon. Appellant did not claim in the Complaint or Amended Complaint, that
Appellees use of the word schlub was intended to be racist or fighting words.
Both parties are Jewish and Mr. Susi used common Jewish vernacular that cannot
possibly be deemed racist or fighting words. Appellant acknowledged the Yiddish
word schlub roughly translates to sloppy or slovenly. [R,67-77] Appellant,
likewise cited no case law to support his position that schlub is a word that is

racist, an ethnic slur, fighting words or obscene. In Hagler v. Credit World Servs.,
2014 U.S. Dist. LEXIS 139241 (US Dist. Kan. 2014), the Court held that an
obscenity is to be viewed in the ears of the hearer and the standard is whether
the language is abusive. On this point, Appellant misstates the holding in Linko v.
Natl Action Fin. Servs., 2007 U.S. Dist. Lexis 98718 (M.D. PA. 2007). At page 14
of his brief, Appellant falsely asserts that the Linko court denied summary
judgment upon a finding that a debt collectors use of the term you are a fucking
liar a single time was a violation of the federal equivalent of the FCCPA. Almost
the opposite is true. In Linko, a debt collector called (not the debtor) but her former
daughter in law and said You people are garbage. You are a fucking liar. You are
garbage Then, the debt collector called back, using the false caller id financial
company. The court did deny summary judgment, but not as Appellant asserts
based upon the language used. Contrary to Appellants position, the court also
found even though the phone call was not appropriate the two comments do not
rise to the level of what a reasonable person would find highly offensive. Id.
The proper legal standard under Florida law is not whether Appellant was
merely offended by this single phone communication with Appellee, but rather
whether the words used are abusive or per se obscene and whether Appellee
willfully abused Appellant with the mere language. This is a far higher standard
than what Appellant asserts. Appellant cites to no case holding that the words

schlub or fucking (when used as an adjective) are obscene, harassing or

willfully abusive. Finally, even if Appellee had used the word fuck as a noun,
mere use of the word could not be obscene, or a profanity where films and photos
graphically showing actual acts of fucking are legally protected and not legally
obscene or vulgar. See e.g. Luke Records v. Navarro, 960 F. 2d 134 (11th Cir.
1992) (music describing fucking as a noun held not to be legally obscene, nor a
profanity).
When asked by the Trial Court, Appellant could not cite to a single case
(in Florida or otherwise) to support his position that mere use of the words
fucking and/or schlub rise to the level of obscene or willfully
abusive language. Then and now, Appellant only cited to a Seventh Circuit case
out of Illinois, Horkey v. J.V.D.B. & Assocs., 333 F.3d 769 (7th Cir. Ill. 2003). The
Trial Court correctly held that Horkey is not on point with the instant matter and
Appellant as the temerity to make the same arguments here, which he knows are
incorrect. [T:12]. In Horkey, the court granted summary judgment for a debtor
because the collector called the debtors place of employment after being told not
to call me at work and thereafter called the debtors co-worker saying, Tell
Amanda to quit being a fucking bitch!. That case centered on the abusive actions
(calling the debtors workplace) and language of the debt collector, not just the
mere language used.

10

B.

The Language Used Is Protected By The First Amendment

And The Florida Constitution

The U.S. and the Florida Constitution does not allow for the punishment of
the exercise of free speech simply because its exercise is done in an offensive
manner. See L.A.T. v. State, 650 So. 2d 214, 217 (Fla. 3d DCA 1995). Pure speech
is protected by the First Amendment if it does not threaten individual or public
safety. W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000) (holding that the
conduct for which respondent was punished - yelling offensive language at police
officers - was pure speech, and thus protected by the First Amendment of the
United States Constitution); see also Roth v. United States, 354 U.S. 476 (1957)
(holding the fact that society may find speech offensive, is not a sufficient reason
for suppressing it).
Remarks such as those alleged - "fucking bill" and "fucking shlub" - are
perhaps distasteful, perhaps even vulgar but, such words do not (as a matter of law)
threaten individual or public safety. Compare State v. Saunders, 339 So. 2d 641
(Fla. 1976) (holding that only "fighting words" are not protected, which are "words
like shouts of 'fire' in a crowded theater" that do threaten public safety). In the
seminal case of Cohen v. California, 403 U.S. 15 (1971), the United States
Supreme Court held "while the particular four-letter word being litigated here
[fuck] is perhaps more distasteful than most others of its genre, it is nevertheless
often true that one man's vulgarity is another's lyric." If this Court reverses the

11

Summary Judgment order, trial courts will be burdened with the responsibility of
acting as the language police whereby a lawsuit might arise any time an
individual uses a distasteful four-letter word in the collection of a debt, no matter
the context. Consider the following scenario: a longshoreman orders a beer in a
bar. The bar tender says hey Joe, give me fucking 2 dollars for the beer. By
Appellants argument, a law suit might ensue. The trial judge commented on
Appellants arguments in this regard calling them absurd. [T:14-15]
The fact that Mr. Susis conversation might be deemed commercial speech
does not change the ultimate analysis, because pure commercial speech still enjoys
first amendment constitutional protections. See Harris v. Beneficial Finance Co.,
338 So. 2d 196 (Fla. 1976) (calling a communication commercial does not
serve to strip it of all constitutional guarantees).
The distinction of limited first amendment protection over commercial
speech (as opposed to pure speech) is all but evaporated. Indeed, this year the U.S.
Supreme Court in an unanimous ruling in Reed v Town of Gilbert, 135 S. Crt.
2218, 192 L. Ed. 2d 236 (2015), considered the constitutionality of sign restriction
laws, finding notions of strict scrutiny requires every ordinance regulating
commercial speech to be narrowly tailored to ensure its compelling state interest
purposes.

12

It is well established law that use of the words fuck and fucking do not
rise to the level of unprotected speech; because such adjectives enjoy constitutional
protection. Cohen v. California, 403 U.S. 15 (1970); see also Brown v. State, 358
So. 2d 16 (Fla. 1978) (only fighting words those not protected by the constitution
(and not including fuck) are only fighting words when spoken face-to-face (not
over a telephone are actionable.
C.

The FCCPA Was Never Intended To Regulate Pure Speech,

Without Further Abusive Collection Tactics On The Part
Of A Debt Collector

Appellant fails to cite a single case where either a debt collector or a

principal creditor violated F. S. 559.72(8) based solely on poor language used in a
single phone call, without allegations of harassing, abusive or deceitful behavior.
This is because the legislative purpose of the FCCPA was not to protect debtors
from a single legitimate collection effort whereby a colorful adjective or noun was
used. Presumably, the Florida legislature has better things to do than concern
themselves with the use of language amongst adults, and most certainly, the
legislature did not intend for the courts to become the language police. "The
FCCPA is a laudable legislative attempt to curb what the Legislature evidently
found to be a series of abuses in the area of debtor-creditor relations." Harris v.
Beneficial Finance Company of Jacksonville, 338 So. 2d 196, 200-201 (Fla.
1976). In discussing a section of FCCPA, the court in Story v. J. M. Fields, Inc.,

13

343 So. 2d 675 (Fla. DCA 1st 1977) stated, How frequent must communication
be to constitute harassment?....[F. S. 559.72] is not entirely without semblance of
objective, predictable standards. It requires willfulness, and thus recognizes that:
[u]nless some latitude is given the creditorwe may well end up with the result
that the creditor will find it preferable to proceed immediately with legal action
when a debt becomes in default, without any warning to the debtor, rather than run
the risk of being answerable to a supersensitive debtor" quoting Household
Finance Corp. v. Bridge, 252 Md. 531, 543 (1969). Here, Appellant either is a
supersensitive debtor or more likely, a litigious lawyer looking to punish a roofer
who merely wanted to be paid for his work. Few district courts have interpreted
section 1692(d) of the Federal Act, (the equivalent of 559.72(8), but the courts that
have done so have construed it very narrowly. The leading case is Jeter v. Credit
Bureau, Inc., 760 F.2d 1168 (7th Cir. 1985), where the Seventh Circuit held that a
collection letter stating that an account would be referred for legal action, and that
this may cause you embarrassment, inconvenience and further expense, did not
violate section 1692(d). Id. at 1178-79. The court found the mere words used did
not create a tone of intimidation. Id. at 1179; because subsection (d) was meant
to deter offensive language which is at least akin to profanity or obscenity.
Other district courts have read section 1692(d) narrowly, recognizing that it
prohibits only oppressive and outrageous conduct, and that it was not intended

14

to shield even the least sophisticated recipients of debt collection activities from
the inconvenience and embarrassment that are natural consequences of debt
collection. See Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 394 (D. Del.
1991) (attempts to collect debt from wrong individuals did not violate section
1692d); Montgomery v. Florida First Financial Group, Inc., 2008 WL 3540374
(M.D. Fla. Aug. 12, 2008) (calling debtor a liar and her mother a liar not enough
to prove section 1692(d) claim). This case and others focused upon the
sophistication and offensiveness of the recipient. Here, the recipient is a lawyer
and the court must (and did) consider that fact in determining if the language used
rose to the level of an obscene ethnic slur. Appellant claims that Harris v.
Beneficial Finance Co., 338 So. 2d 196 (Fla. 1976), holds that the 1st Amendment
does not protect Appellant. However, the holding in Harris is inapposite to
Appellants position. In Harris, the court determined that portions of F.S.
559.72(4) of the FCCPA, constituted an unconstitutional deprivation of the
defendants

property

without

due

process

of

law.

Contrary

to

Appellants position, and consistent with the position advocated herein, the Harris
court noted that communications directed solely to the collection of the debt is
purely commercial speech which."Does not serve to strip it of all constitutional
guarantees.

15

The underlying Motion for Summary Judgment argued that F. S.

559.72(8)

was never intended to make the courts the "language police"

regulating pure speech alone, without more. Judge Gonzalez-Meyer directly

agreed based upon her extensive experience in hearing FCCPA cases every day,
stating the statute was never intended to curb speech alone without other abusive or
deceptive harassing actions on the part of a debt collector. [T:11,13-16] Just like
the Trial Court did, this Court should find the Horkey decision is not on point with
the facts here, because Horkey had an extra element of action (missing here):
harassing calls to a debtors place of employment.
D.

Appellant Attempts To Mislead The Court As To The

Reasons Why The Trial Court Granted Defendants
Motion For Summary Judgment

Appellant argues at pages 6-10 of his Initial Brief that the Trial Court ruled
based upon its determination that:
a)

Shmuely is not the kind of person who is protected by the

FCCPA;

b)

Appellant is not a debt collector under the FCCPA;

c)

The FCCPA does not apply to the primary owner of the

debt.

Appellant is attempting to mislead this Court in an attempt to manufacture

non-existent appellate issues. Nowhere in the record does the Trial Court state it is

16

making these findings and Appellee did not even raise these arguments in the
Motion for Summary Judgment (R, 42-46) or at any time during the Hearing. [T:121]
Appellant misstates the holding in Drossin v. National Action Financial
Services Inc., 641 F. Supp. 2d 1314 (S.D. Fl. 2009). The Drossin holding was not
based upon pure language, as Appellant asserts. Drossin was a class-action case
and the court found that similar messages were sent to 30,139 Florida
residents. There was no issue in Drossin about the specific language that was used
by the debt collector, but rather whether or not the debt collector failed to advise
the debtors in those calls that the debt collector was in fact a debt collector.
Appellant also miscited Walker v. Asset Acceptance, LLC, 2012 US DIST.
LEXIS 95128 (D. NJ. 2012), which does not support Appellants position. In
Walker, the court never reached the issue as to whether or not the language used
was profanity or obscenity. Rather, the sole issue before the court was whether or
not evidence of an abusive voicemail message existed. In Walker, the plaintiff was
not claiming that the language used was obscene or profane, but rather that the
tactics of the debt collector was abusive. Here, there is no allegation by Appellants
that any actions on the part of Appellee was abusive or harassing, only that the
language used was an obscenity.

17

Appellant also miscited the holding in Hagler v. Credit World Services Inc.,
2014 U.S. Dist. LEXIS 139241 (U.S. Dist. Kan. 2014). In Hagler, there was no
allegation that the debt collector simply used obscenity or profanity, rather the
issue was whether or not the debt collector used deceptive tactics when he failed to
identify himself as a debt collector, as is required.
Appellant tries to mislead the court by arguing at pages 21-24 of his Initial
Brief, that there is a least sophisticated consumer test for the court to apply when
the court is to consider the language used by a debt collector. Appellant is simply
wrong and no case supports Appellants position. In each of the cases cited by
Appellant, the issue turned on the behavior and actions of the debt collector and
whether or not "the debt collection practices had a tendency or capacity to
deceive". In the instant case, there is no issue regarding debt collection practices
actions by Appellee that is alleged to be deceptive, harassing or abusive; therefore,
the unsophisticated consumer test has no place in the instant lawsuit. See United
States v. Central Adjustment Bureau Inc., 667 F. SUPP. 370 (N.D. Texas 1986)
(yet another case miscited by Appellant). Appellant asserts that the Central
Adjustment court found language "the judge doesn't give a fuck about your
complaint" to be profanity or an obscenity. That did not occur in that decision. The
issue in Central Adjustment Bureau was not the specific language used by a debt
collector in a single phone call, but rather, whether a particular debt collector had

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engaged a pattern of abusive behavior in violation of 13 different sections of the

FDCPA and nowhere in the opinion did the court even consider if the particular
language used was obscene or profane, as Appellant incorrectly asserts.
Finally, Appellant miscited the holding in Jeter v Credit Bureau, 760 F. 2d
1168 (11th Cir. 1985), incorrectly arguing that there is an objective standard
governing the use of offensive language. The Jeter decision did not involve
whether language used by a debt collector was obscene, but rather whether the
tactics of sending letters that contained misleading and deceptive statements to a
creditor was intended to mislead and deceive.
E.

This Court Should Ignore Appellants FCC Arguments

That Were Not Raised Below

At pages 19- 20 of his Initial Brief, Appellant argues that the Federal
Communications Commission (FCC) has held that the word fuck cannot be
broadcast over the public airways and hence, this Court should find likewise for
purposes of the FCCPA. Aside from the obvious distinction in language broadcast
over the regulated airways from non-regulated language spoken by individuals on
the street, Appellant raises this argument for the first time on appeal. Hence, this
Court need not consider same. See Johnston v. Hudlett, 32 So. 3d 700 (Fla. 4th
DCA 2012).
CONCLUSION

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For the foregoing reasons, the Court should affirm the Trial Courts order
granting Appellees Motion for Summary Judgment and award Appellee its
attorneys fees pursuant to F. S. 558.72(2), remanding same to the Trial Court for
a determination as to the proper amount.
RESPECTFULLY SUBMITTED,

Richard C. Wolfe, Esq.

Wolfe Law Miami, P.A.
Counsel for
Appellee Salomon Construction
175 SW. 7th Street, Suite 2410
Miami, Florida 33130
Telephone: (305) 384-7370
rwolfe@wolfelawmiami.com
Florida Bar No.: 355607
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished via U.S. Mail, on this 4th day of August, 2015, on Richard Peck, Esq.,
Elkin-Peck PLLC, Attorneys for Appellant, 12515 Spring Hill Dr., Spring Hill,
Florida 34609.
/s/Richard C. Wolfe, Esq.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that pursuant to Fla. R. App. P. 9.210(a)(2), this Brief
has been printed in Times New Roman 14 point proportionate type.

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/s/Richard C. Wolfe, Esq.

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