Legal Update: August 2010

Questions from the Legal Hotline

Q. Can you give me some guidance as to what is legal to leave in a voice mail message when calling somebody about their past due balance? Is there a difference whether we are leaving the message on an advertiser's cell phone versus business line and/or home phone?

A. The Fair Debt Collection Practices Act (FDCPA) contains complicated regulations on the conduct of debt collectors, including what type of voice mail messages they can leave. For example, they must identify themselves in a certain way, state "mini Miranda rights" such as the debt collector is attempting to collect a debt and anything said will be used in that regard, and not reveal details about the debt to unrelated third parties.

However, the law applies to "debt collectors" which is any person who regularly collects debts owed to others. A "debt collector" under the FDCPA is generally not a company that is the original creditor; rather, it is a company, sometimes called a "third party" collector that has been hired by the original creditor or someone else to collect the debt.

Also, in-house collection agents are not ordinarily covered by the Act. For example, if the debtor has a store credit card, and the store's own collection department contacts the debtor, the FDCPA does not apply. However, if the same store uses an outside collection agency to contact the debtor in relation to that same debt, the outside agency's conduct is restricted by the FDCPA.

Similarly, if the same store uses an in-house collection agent, but suggests to the debtor that the collection is being performed by a third party, the FDCPA may apply to the store as a result of that representation.

Unless those situations come into play, voice mail messages from the newspaper's staff or even in-house collectors should ordinarily not be subject to the FDCPA.

Q. One of my editors recently asked the City's police department for information on a woman who was injured by falling from a hotel balcony. The officer was told by her sergeant that the incident was exempted from public records. Although she didn't say specifically why, we believe she was referring to the HIPAA act. What is legitimately exempt from public records because of the HIPAA act? There seems to be a lot of confusion and misunderstanding of the HIPAA act, especially among public agencies.

A. Police departments (except EMTs) are not "covered entities" and cannot withhold public information based on HIPAA. Only "covered entities" must keep private "protected health information." Covered entities are health care providers like hospitals, ambulances/EMTs and social workers.

The hospital, being a covered entity, cannot release detailed information, but it can release the patient's general condition, like "serious" in this case.

Here are some additional examples and general HIPAA guidelines:

• The Basics of HIPAA: What Reporters and Newspapers Should Know About Disclosure of Health Information by Hospitals and other Health Care Providers. (See a separate article titled, "HIPAA Overview.pdf" available in the members-only section of the CPF Website.)

• A hospital employee told a reporter that HIPAA makes it illegal to interview a patient in the waiting room. Is this correct? (See a separate article titled, "HIPAA Patient Interview.pdf" available in the members-only section of the CPF Website.)

• Does HIPAA prevent media representatives from photographing victims or EMS workers at accident scenes? (See a separate article titled, "HIPAA Accident Scenes.pdf" available in the members-only section of the CPF Website.)

Q. I have a customer who owns some rental properties, one of which is a "studio" and he wants to run the following ad:

STUDIO, FURNISHED APT. on Intracoastal, w/dock available. New paint, carpet. $700/month, includes cable.

The customer wants to add some sort of verbiage to indicate it is available for ONE person only. Is the addition of these words or similar ones like "one renter" legal?

A. No. Under the federal Fair Housing Act and similar state regulations, "one person," "one renter," "single person," and the like are all problems. These terms are viewed as discriminatory toward families with children, a protected class. Newspapers should be careful about these sorts of ads that involve potential bias towards families because they often appear at first glance to be neutral when in fact enforcement agencies have interpreted them to be discriminatory. Newspapers and other publishers are in the direct liability chain for violations under the Act.

Q. We recently received the following ad:

SURROGATE MOMS NEEDED! $18,000 Compensation. Healthy, non-smoking females, 21-37 yrs., height/weight proportionate. Gave birth with no complications. No criminal background, with private health insurance. Confidential. (xxx)(xxxxxxx). www.___________.com.

Are there legal requirements for running this type of ad? I know we have to publish a lawyer's license with adoption ads, but does the same apply to surrogates?

A. Section 742.15 (gestational surrogacy contracts) regulates such contracts. I don't see anything related to lawyer license numbers. The law has age limits - the surrogate must be at least 18 years old and the commissioning couple must be married and at least 18 years old. Also, under the contract, the commissioning couple can only pay "reasonable living, legal, medical, psychological, and psychiatric expenses of the gestational surrogate that are directly related to the surrogacy." Thus the "$18,000 compensation" and "with private health insurance" statements raise some concern. The advertiser should consider adding a disclaimer such as, "up to $18,000 and private insurance toward reasonable surrogate expenses."

Q. I just received a complaint from a local realtor stating we are running "illegal" real estate ads. The realtor says they are illegal because the ad "...must list the name of the business in the ad." I know our local realtors organization requires the name of the agent and/or broker in ads; however, I was told that it is up to the realtor/advertiser to follow the guidelines set down by their organization. Is there a state requirement that real estate advertisements must show the name of the broker/agent, or does the local realtor's board have the right to require advertisers from out of the area to follow the local advertising guidelines?

A. While the local non-governmental realtor's group likely cannot require advertisers outside its area to follow its policies, the state Department of Business and Professional Regulation (Rule 61J2-10.025 Advertising) has such a state-wide requirement applicable to real estate brokers. The rule says ads need to include the identity of the firm. If a personal name is used, the last name must be as it is registered with the Florida Real Estate Commission. There is also a specific "point of contact" requirement for the ads that are going on Web sites. The rule says "the brokerage firm name shall be placed adjacent to or immediately above or below the point of contact information."

Sam Morley is General Counsel for the Florida Press Association, directs legislative and lobbying efforts on behalf of the association and oversees the Legal Hotline, a free service provided to FPA and CPF member newspapers. He is the immediate past chair of Florida Bar's Media and Communications Law Committee. Sam routinely provides advice about the sunshine law and open records acts, libel, employment issues, legal advertising, taxation, and other laws affecting newspapers. He can be reached at 877-NEWS-LAW (639-7529) or at smorley@flpress.com.


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