Legal Update: March 2011

A Question & Answer Session With Sam

Q. I have an older woman who wants to rent out a room in her house. It has always been my understanding that if somebody is renting a room in their own home, the fair housing laws as far as stating a gender preference do not apply. This customer wants to list a preference for a person "in their 70s." Is this allowable?

A. Private landlords who occupy the premises and rent to four families or less may screen for tenants. Thus, the older woman here may screen for tenants in their 70s. However, the law says that she may not use any discriminatory advertising. Thus, she cannot advertise as catering to persons in their 70s unless she qualifies for one of the specific elderly housing exemptions which generally only include housing used solely by persons 62 years of age or older or a more detailed exemption regarding 80% of units occupied by persons 55 and older.

Q. Can my newspaper run an ad for someone who is raffling off a house or land?

A. No. Only eligible non-profit organizations can conduct raffles in Florida, and newspapers should not run ads promoting a raffling activity. If a non-profit wants to advertise a raffle, it should confirm its non-profit status to the newspaper, and it will need to abide by the rules for non-profit raffles including the disclosure rules for advertisements. In particular, section 849.0935 of the Florida Statutes says that the ads (if offered more than three days prior to the drawing) must "conspicuously disclose" information about the raffle. This includes disclosure of the operation of the drawing, background information of the organization, the source of prize funds, and date and place of choosing the winner and awarding of prizes.

Q. My newspaper is having problems with someone taking our papers in bulk. We suspect who it is and the police do too, but because we are a free paper, the prosecutor has said there is no crime and my only choice is a civil suit. The theory is that "you can't steal something that's free."

A. Free newspaper thefts have happened across the country, usually in an attempt by the thief to silence an unwanted message. In addition, at least in one case in Texas, the entire press run was taken from news racks on three different occasions and sold to recyclers in Mexico.

Sometimes authorities, like the prosecutor in this case, say they are powerless to prosecute removal of multiple copies of free newspapers under a state's general theft statute because anyone theoretically has a right to take as many of them as they want. In response, some states like Maryland and Colorado have passed laws that make such multiple removal a crime. Most states, including Florida, however, have not. In these states, some free newspapers print on each copy that single copies are free but that additional issues cost a certain amount, such as $1. This may prod an otherwise reluctant prosecutor or police into pursing multiple removals under general theft laws.

On the other hand, the taking of free newspapers in a bulk does result in direct monetary damage to the newspaper. This is true because free newspapers derive their revenue from advertisers who pay for their message to be seen; removal of the newspaper in bulk destroys that relationship and removes or diminishes valuable ad income. It also means lost value of the removed papers as reflected by the printing cost and incurrence of additional costs to re-print a new edition. These damages should be recoverable under a civil cause of action against the perpetrator, such as interference with business relationship.

If the newspaper does not know or is uncertain who is taking its papers in bulk and the prosecutor and police are reluctant to undertake a criminal investigation, the newspaper is left in a bind. In such cases, it may have to undertake its own efforts to identify the person through eyewitnesses, the use of video surveillance, or other method. With such evidence in hand, the newspaper would have an easier time either trying to prod the police to pursue the person for a crime or to direct a claim for damages against the person.

If you experience bulk theft of your newspapers, please feel free to contact Sam to help with any of these issues.


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