Petition for Writ of Certiorari — Franta v. Florida

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IN THE ALEXANDER L. STEVAS

SUPREME COURT OF THE UNITED stares Clik

OCTOBER TERM 1984

JOHN CHARLES FRANTA

Petitioner,

versus

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SECOND DISTRICT

COURT OF APPEAL

DONALD I. BIERMAN, ESQ.

BENEDICT P. KUEHNE, ESQ.

Counsel of Record

BIERMAN, SONNETT, SHOHAT

& SALE, P.A.

Suite 500

200 S.E. First Street

Miami, Florida 33131

Telephone: (305) 358-7477

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

WHETHER THE DECISION BELOW,

AFFIRMING WITHOUT OPINION

PETITIONER'S CONVICTIONS FOR THEFT

AND ENGAGING IN A SCHEME TO DEFRAUD,

IS CONTRARY TO LAW AND RESULTS IN A

DEPRIVATION OF HIS CONSTITUTIONAL

RIGHT TO DUE PROCESS, WHERE THE

EVIDENCE ESTABLISHED ONLY THAT

PETITIONER WAS INVOLVED IN THE

COMPETITIVE BUSINESS OF HOME REPAIR

SOLICITATION, THAT HE ENGAGED IN

LEGITIMATE SALES PUFFERY, BUT THAT

HE DID NOT ACT TO DEFRAUD ANY

HOMEOWNERS ?

LIST OF INTERESTED PERSONS

The only persons having an

interest in the outcome of this case are

the Petitioner, his family and the State

of Florida.

TABLE OF CONTENTS

Page

CP Ree. WES 6.6 6060808000506 366d 0468808

Bio FS og i ee 3

CONSTITUTIONAL AND STATUTORY

PROUT LOE EMVOMVEM oc ccccccecsceece 3

Drees Ge Bee GMb eeeescccccueseses 4

REASONS FOR GRANTING THE WRIT........ Pe

THE DECISION BELOW,

AFFIRMING WITHOUT OPINION

PETITIONER'S CONVICTIONS FOR

THEFT AND ENGAGING IN A

SCHEME TO DEFRAUD, IS

CONTRARY TO LAW AND RESULTS

IN A DEPRIVATION OF HIS

CONSTITUTIONAL RIGHT TO DUE

PROCESS, WHERE THE EVIDENCE

ESTABLISHED ONLY THAT

PETITIONER WAS INVOLVED IN

THE COMPETITIVE BUSINESS OF

HOME REPAIR SOLICITATION,

THAT HE ENGAGED IN

LEGITIMATE SALES PUFFERY,

BUT THAT HE DID NOT ACT TO

DEFRAUD ANY HOMEOWNERS.

Cs cb bbb eb ees hehe sn bende boe bees

Ps 666660066 0064S 6 60 B6 SOs O04 Oe Oe

-iii-

TABLE OF AUTHORITIES

Page

Franta v. State,

450 So.2d 495 (Fla. 2d DCA 1984)..1, 2

In re Winship,

397 U.S. 358, 90 S.Ct. 1068 (1970)..12

Jackson v. Virginia,

643 0.8. 307, 99 B.C. 2761 (i979) ..iZ

United States v. Beitscher,

467 P.26 269 CISER Cifs T9722) oc ceces 19

United States v. Kreimer,

609 F.24 126 (Sth Cir. 1960) .cccsecs 19

United States v. Martin-Trigona,

684 P.26 S65 (7th Cie. 1982) -ccccces 19

United States v. Pearlstein,

S76 F.26 S31L (36 Cie. T978) vccccness 19

United States v. Shamy,

656 F.2d 951 (4th Cir. 1981)........ 18

Constitutional Provisions and Statutes

United States Constitution

Fifth Amendment......ceecceces tienecuae

Fourteenth Amendment.......ceceeee eer >

28 U.S.C. §1257(3) .. cc cccccccccccceveeed

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1984

JOHN CHARLES FRANTA,

Petitioner,

versus

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SECOND DISTRICT

COURT OF APPEAL

Petitioner, JOHN CHARLES

FRANTA, respectfully prays that a Writ

of Certiorari issue to review the judg-

ment, opinion, and order on rehearing of

the Florida Second District Cou t of

Appeal entered in Case No. 83-678, which

affirmed the criminal convictions and

sentences of the Circuit Court of the

Sixth Judicial Circuit of Florida.

oj-

Franta v. State, 450 So.2d 495 (Fla. 24d

DCA 1984).

OPINIONS BELOW

The opinion of the Florida

Second District Court of Appeal, entered

April 11, 1984, is reported as Franta vy.

State, 450 So.2d 495 (Fla. 2d DCA 1984).

This decision is reproduced in the

Appendix to this petition. That same

court denied rehearing on May 18,

1984. That order is contained in the

Appendix. The trial court did not ren-

der any written opinions specifically

directed to the question presented in

this certiorari petition.

JURISDICTION

Petitioner invokes the juris-

diction of this Court pursuant to 28

U.S.C. §1257(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Amendment V:

No person shall. . . be deprived of

life, liberty, or property without

due process of law. ..

u.S. Constitution, Amendment XIV:

All persons born or naturalized in

the United States, and subject to

the jurisdiction thereof, are citi-

zens of the United States and of the

State wherein they reside. No State

shall mak2 or enforce any law which

shall abridge the privileges or

immunities of citizens of the United

States; nor shall any State deprive

any person of life, liberty, or

property, without due process of

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the law.

STATEMENT OF THE CASE

The State Attorney for the

Sixth Judicial Circuit, in and _ for

Pinellas County, Florida, returned a

fifteen-count information charging JOHN

CHARLES FRANTA and three others with

engaging in a scheme to defraud ten or

more persons, and grand theft. A jury

trial commenced on February 28, 1983.

During the course of the trial, the

court dismissed the charges alleged in

counts ll, 14 and 15 due to inadequate

evidence. The jury returned guilty

verdicts as to the remaining twelve

charges. The trial court punished

FRANTA by imposing a three-year term of

incarceration on count 1 followed by

concurrent terms of five years' proba-

tion on the remaining counts. The court

further ordered FRANTA to pay a total

fine of $5500. Petitioner sought appel-

late review in the Florida Second Dis-

aia

trict Court of Appeal, wherein he raised

four issues, to wit: insufficiency of

the evidence, unconstitutionality of the

charging statute, improper admission of

collateral act evidence, and erroneous

jury instructions. The District Court

affirmed the convictions.

As presented at trial, this

case involved allegations of consumer

fraud. The evidence was intended to

show that JOHN CHARLES FRANTA and

several other persons engaged in a plan

or scheme constituting a systematic

ongoing course of conduct to defraud

homeowners by inducing them to enter

into contractual arrangements for un-

necessary roof repairs. Petitioner's

allegedly criminal conduct grew out of

the operation of the Dennis E. Rodriguez

Construction Company, a business organ-

ized and licensed for the purpose of

providing roof repair services to home-

-§=

owners in Pinellas County, Florida.

Prospective customers were solicited by

either telephone or home canvassers.

The initial contact was intended to

arrange a pressure cleaning of the home-

owners’ roofs. In many instances, this

solicitation led to contracts for roof

repairs. The basic factual contention

at trial centered on the necessity for

the repairs and the manner in which the

repairs were effected.

The home repair business was

actually owned by Dennis E. Rodriguez,

who held a class C_- construction

license. Petitioner, known to Rodriguez

as a "super" salesman from prior con-

struction business, became associated

with Rodriguez in late 1981, and was

supposed to assist in increasing the

company business. Petitioner was to be

responsible for sales, while Rodriguez

was in charge of overseeing the home

o¢=

improvement construction activities,

which primarily involved roofing re-

pairs.

In order to secure business,

the company utilized canvassers' and

solicitations for roof cleanings. The

canvassers and roof cleaners, who where

paid either a flat fee per job or a

percentage of any future roof repair job

sold, looked for dirty roofs and homes

in need of roof repairs. If the home-

owner agreed to a pressure cleaning of

the roof and home exterior, a contract

was entered into for a fee. In the case

of a roof that appeared in need of re-

pairs, such as loose and mildewed tiles

or leaks, the canvassers and _ roof

cleaners contacted a company salesman

who then attempted to solicit the home-

owner for a second job to repair the

roof. In the event that nothing was

wrong with the roof or the homeowner did

oJa

not desire any repair work, the company

would verform the cleaning only or re-

fund the money as requested.

The majority of the initial

solicitations led to contracts for roof

repairs. Most customers were elderly

people. In order to secure a roof re-

pair sale, it was common for the sales-

men to dramatize and stress the impor-

tance of an existing problem with the

roof. No salesperson, however, was ever

advised by FRANTA or anyone else to lie

to a homeowner about the necessity for

repairs or to break or destroy a roof in

order to secure a job. In discussing

the need for repair work, salesmen

offered homeowners several options,

including advising the homeowner’ to

contact his or her own roofer about

effecting the repairs.

When a customer agreed to hire

the Dennis E. Rodriguez Construction

Company to do the repair work, a con-

tract was Grawn up and the specific work

to be done was included in the

contract. All contracts included the

required notice that cancellation could

be made within three days and contained

the company's telephone number, which

the salesperson underlined. Once the

job was sold, Rodriguez contacted avail-

able subcontractors in an effort to

begin work on the house as soon as pos-

sible. In the construction trade, this

effort to promptly begin working on the

repairs so as to show the customer that

the company could perform the job, was

for the purpose of dissuading the home-

owner from cancelling the contract.

This was known as “spiking the job”.

FRANTA's responsibility ended

when the job was sold. Supervision of

the job was Rodriguez’ concern. FRANTA

was, however, always very insistent that

~9-

the workmen per formed the repairs

“according to the contract" and contin-

ually reminded Rodriguez to properly

supervise the job. Whenever any cus-

tomer had a complaint abovt repair work,

Rodriguez sought to remedy the situa-

tion. To this extent, he responded to

complaints by sending workmen to redo

the work and make adjustments or by

agreeing on a price reduction. Rela-

tively few of the many jobs done experi-

enced problems. Throughout the course

of his business relationship with

FRANTA, Rodriguez attempted to do proper

roof repairs and never schemed to de-

fraud or mislead customers. Rodriguez

paid premium prices to his subcontrac-

tors in order to get premium work.

The actual work done on the

roofs was admittedly of inferior

quality. While extensive work was per-

formed on every home, expert witnesses

-10-

disagreed as to whether all contract

terms were satisfied. In some cases,

homeowners complained to the company and

received refunds. In other cases, home-

owners were satisfied with the roofing

work. In still other cases, homeowners

complained to the Consumer Affairs

Office. The prosecution theorized that

FRANTA and other company employees mis-

led and lied to the homeowners in

attempting to convince the homeowners to

agree to roof repairs. On every occa-

sion that a contract was executed, how-

ever, the roofs were in need of some

repair.

FRANTA earned a _e substantial

amount of money as a result of being

responsible for sales. During a ten

month period, he received $137,000 in-

come. FRANTA was, however, responsible

for resurrecting the financial health of

the company, which was in disastrous

-ll-

straits before his arrival. FRANTA was

not, however, in control of the company

or its finances.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW, AFFIRMING WITH-

OUT OPINION PETITIONER'S CONVICTIONS

FOR THEFT AND ENGAGING IN A SCHEME

TO DEFRAUD, IS CONTRARY TO LAW AND

RESULTS IN A DEPRIVATION OF HIS

CONSTITUTIONAL RIGHT TO DUE ?ROCESS,

WHERE THE EVIDENCE ESTABLISHED ONLY

THAT PETITIONER WAS INVOLVED IN THE

COMPETITIVE BUSINESS OF HOME REPAIR

SOLICITATION, THAT HE ENGAGED IN

LEGITIMATE SALES PUFFERY, BUT THAT

HE DID NOT ACT TO DEFRAUD ANY HOME-

OWNERS.

In all criminal cases, the

prosecution has the responsibility of

proving every element of the crime

charged beyond a reasonable doubt. In

re Winship, 397 U.S. 358, 90 S.Ct. 1068

(1970). This burden is not dependent

upon the status of the prosecuting

authority, Jackson yv. Virginia, 443 U.S.

307, 99 S.Ct. 2781 (1979) (due process

requires same standard of proof in state

-12-

criminal proceedings), or the status of

the defendant. In _re Winship, supra

(beyond a reasonable doubt burden is

applicable in adult and juvenile prose-

cutions).

Yet, in the present case the

State of Florida, through the decision

of the Second District Court of Appeal,

has effectively imposed an altogether

new standard of criminal responsibilitv

in situations where an individual is

involved in the legitimate, but competi-

tive, business of home improvement soli-

citations. That court has effectively

held, by reason of its affirmance of the

convictions, that if a salesperson's

company does poor quality work, the

salesperson could ultimately be found

guilty of fraud and theft. This emerg-

ing standard of strict liability in the

context of business crimes is completely

erroneous and contrary to well estab-

o13<

lished notions of criminal

culpability. The conclusion of the

appellate court ought to be reviewed by

this Court for the very simple reason

that if unchecked, this standard will

impose liability upon every individual

who, by reason of attempting to make an

honest living in difficult economic

times, supplies services or preducts

which are not among the best the market-

place has to offer. Petitioner should

not be made to suffer as a criminal

because of the competitive nature of

small businesses today.

The situation now presented to

this Court is controlled by a substan-

tial body of precedent which, unfortu-

nately, was not applied to this case.

The record of proceedings in this case

demonstrates that numerous individuals,

operating through a licensed construc~-

tion company, endeavored to sell roof

ole

repair services by way of home solicita-

tions. The license holder, Dennis E.

Rodriquez, was not very knowledgeable in

roof repair aspects of the construction

business, although he did evidence the

required knowledge and experience needed

to obtain his state contractor's

license. Rodriguez, who was particular-

ly inept in the business end of the

construction trade, looked to the Peti-

tioner to supply a steady source of

business. Petitioner's expertise was in

sales. He was known for his ability to

persuade others to purchase the product

he offered -- roof repairs -- at a fair

and reasonable price. He made no pre-

tense of participating in the nuts and

bolts of the roof repair business.

The procedure utilized by the

construction company was neither devious

ner intended to take unfair advantage of

homeowners. Homeowners contracted for

-]5<

repairs to be made to their roofs.

Petitioner did not "take the money and

run"; rather, he and the other salesman

described precisely what was to be done

to the roof in a self-explanatory con-

tract. Subcontractors, hired by Dennis

Rodriguez, then went to work in accor-

dance with the contract terms. Some of

the work was substandard; other perfor-

mance was satisfactory. However, every

homeowner received at least partial

compliance with the terms of their re-

spective contract. At no time did the

Petitioner or anyone else involved in

the home repair activities intentionally

perform acts or fail to do something for

the purpose of unlawfully obtaining

property.

In finding the evidence in

this case sufficient to support the

convictions, the Florida Second District

failed to correctly comprehend the rele-

@16<

vant facts and consider the correct

evidentiary standard. To put this case

in its proper perspective, the activi-

ties involved herein are no different

from the actions of a typical used car

dealer. While such individuals are

generally understood to utilize high

pressure sales techniques, to engage in

sales puffery and embellishments, and to

emphasize the urgency of closing the

sale as quickiy as possible, it cannot

be said that such individuals break the

law by committing theft with each

sale. Yet, that situation is directly

analogous to this case. The Petitioner

himself was never once shown to have

lied to a homeowner. He did not promise

anything that was not done. While he

did embellish the quality of the repairs

which would be made and the urgency for

making the repairs, at no time did he

mislead the customers with respect to

=jJ=

any material fact.

That court's perception of the

case might be justified if the Peti-

tioner did not detail the obligations of

the construction company in the written

contracts. The same might be true if he

acted in a stealthy manner so as to

trick individuals into taking some

action which they did not understand.

Yet, not a single customer testified at

trial that the subcontractors did not do

what they were obligated to do. The

most that was said by the alleged vic-

tims and the other witnesses was that

the subcontractors did not perform their

responsibilities correctly. This proof

did not establish that the Petitioner

acted in a manner that conflicted with

accepted standards of moral uprightness,

fundamental honesty, fair play and right

dealing. United States v. Shamy, 656

F.2d 951 (4th Cir. 1981). A scheme to

-18-

defraud is limited to that which is

reasonably calculated to deceive persons

of ordinary prudence and

comprehension. United States Vv.

Beitscher, 467 F.2d 269 (10th Cir.

1972). Within the context of the alleg-

edly deceptive scheme involved herein,

the appellate court totally failed to

recognize the legal test that the evi-

dence must prove the defendant's speci-

fic intent to defraud. E.g., United

States v. Martin-Trigona, 684 F.2d 485

‘Fee Cifs 1982); United States _ vy.

Kreimer, 609 F.2d 126 (5th Cir. 1980).

The court's examination of the

evidentiary sufficiency in this case

should have been guided by the judicial

precedent of United States Vv.

Pearlstein, 576 F.2d 531 (3d Cir. 1978),

a case which was totally ignored by the

appellate court. There, various sales-

men were charged with participating in a

o19<

scheme to defraud involving the sale of

distributorships for a direct-mail-

marketing pen company. In the course of

securing distributorships, by which the

salesmen earned commissions, the sales

personnel utilized a sales pitch which

was replete with false and misleading

statements. The salesmen, however,

acted without knowledge of the false

nature of the claims made, and instead

merely functioned in the good faith

belief that they were honestly relating

facts in an effort to secure sales. The

mail fraud convictions were, appropri-

ately, reversed.

Petitioner's plight is simi-

lar. He never instructed salesmen to

lie or mislead prospective customers or

misrepresent any facts in order to in-

duce the sale. He was always concerned

about customer satisfaction, and insis-

ted upon prompt resolution of consumer

complaints.

@20-

Petitioner submits that this

Court must review the standard of evi-

dentiary sufficiency utilized by the

Florida Second District Court of

Appeal. That standard casts too broad a

net and causes disharmony with respect

to constitutional principles. Peti-

tioner was denied his constitutional]

right to due process, as guaranteed by

the Fifth and Fourteenth Amendments to

the United States Constitution. The

danger present in this case is that

businessmen, not bound by a rigid code

of ethics and work standards, will be

criminally punished because of the ap-

plication of strict liability with re-

spect to their endeavors. This case

presents a critical opportunity for this

Court to clarify this very important,

but hazy, area of criminal law. This

Court must issue its writ of certiorari

to correct the injustice found herein.

=21-

CONCLUSION

For the above reasons, a writ

of certiorari should issue to review the

judgment and opinion of the Flcrida

Second District Court of Appeal.

Respectfully submitted,

BIERMAN, SONNETT, SHOHAT

& SALE, P.A.

200 S.E. First Street

Suite 500

Miami, Florida 33131

(305) 358-7477

v4 tite Alb

T ot) 2 4 —S iE

BENEDICT P. KUEN:

DONALD I. BIERMAN, ESQ.

BENEDICT P. KUEHNE, ESQ.

-22-

APPEWDIX

-23-

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED,

DETERMINED.

IN THE DISTRICT COURT OF

APPEAL OF FLORIDA

SECOND DISTRICT

CASE NO. 83-678

JOHN CHARLES FRANTA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Opinion filed April 11, 1984.

Appeal from the Circuit

Court for Pinellas County;

William L. Walker, Judge.

Donald L. Bierman and

Benedict P. Kuehne of

Bierman, Sonnett, Beiley,

Shohat & Sale, P.A.,

Miami, for Appellant.

Jim Smith, Attorney General,

Tallahassee, and Davis G.

Anderson, Jr., Assistant

Attorney General, Tampa,

for Appellee.

PER CURIAM.

Affirmed.

HOBSON, Fe and CAMPBELL and

SCHOONOVER, JJ., Concur.

: App. 1

IN THE SECOND DISTRICT COURT OF APPEAL,

LAKELAND, FLORIDA

May 18, 1984

Case No. 83-678

JOHN CHARLES FRANTA,

Appellant,

Vv.

STATE OF FLORIDA, :

Appellee. :

Counsel for appellant having

filed a motion for rehearing in the

above-styled case, upon consideration,

ce is

ORDERED that said motion is

hereby denied.

A TRUE COPY

TEST:

CLERK DISTRICT COURT OF APPEAL

SECOND DISTRICT

cc: Benedict P. Kuehne

Attorney General

App. 2