By Albert Kelley
The increase in types of communication systems has allowed us to be more connected to each other than ever. But with every new method of communication comes people who want to exploit it for their own gain illegally. Years ago, the legislature first passed the Florida Communications Fraud Act with the intent of allowing prosecution of those people who committed fraud through the use of the mails. In 2013 with the proliferation of telecommunication fraud, the legislature expanded the law to also cover electronic communications, including telephones- both landlines and cellular, as well as email, text messages and any other manner of electronic communication.
The statute breaks violations into two basic categories: organized fraud and communication fraud. Organized fraud is defined as engaging in a scheme to defraud and obtaining property therefrom. The question is what is a “scheme to defraud”. A scheme to defraud is “a systematic, ongoing course of conduct with intent to defraud one or more persons, or with intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act”. The main aspect of this definition is that the activity must be systematic and ongoing. In other words, a single fraudulent statement is not likely to trigger this statute. This law is targeted against those criminal enterprises that repeatedly try to defraud people.
Communication fraud is defined as engaging in a scheme to defraud and, in furtherance of that scheme, communicating with any person with intent to obtain property from that person. We’ve already seen the definition of “scheme to defraud”; but here we need the definition of “communicating”. This is the key to this law. The statute defines communicating as transmitting or transferring or to cause another to transmit or transfer signs, signals, writing, images, sounds, data, or intelligences of any nature in whole or in part by mail, or by wire, radio, electromagnetic, photoelectronic, or photo-optical system. In other words, to violate this statute, there must be some activity through a media source; face-to-face fraud is not sufficient.
As for severity, Organized Fraud carries a harsher sentence than Communication Fraud. At worst, Communication Fraud is a third-degree felony (if the amount of the fraud exceeds $300). Otherwise it is merely a first-degree misdemeanor. Contrarily, Organized Fraud starts as a third-degree felony if the amount is less than $20,000. Between $20,000 and $50,000 it is deemed a second-degree felony and above $50,000 it is a first-degree felony. While this may not seem logical (why would communication fraud be less than Organized Fraud when they both cover the same offense?), the statute allows a violator to be charged with both counts for the same activity. So, a single violation could result in two convictions and an increase in the sentence imposed upon the violator.
Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.
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