Could a Florida sheriff arrest a seller for price gouging during a declared emergency?

Plain-English summary

In this August 2007 informal letter, the Attorney General's office separated two questions for a Bay County sheriff. It described the emergency price-gouging prohibition as a civil enforcement matter for the Attorney General, the Department of Agriculture and Consumer Services, and the state attorney. It then pointed to a separate misdemeanor in section 501.160(9) for offering goods or services to the public during a declared emergency without a business tax receipt. The letter said the sheriff's office could arrest sellers for that receipt offense.

For a price to be prima facie unconscionable under the statute quoted in the letter, the comparison with prices during the 30 days before the emergency had to show a gross disparity, and the increase could not be attributable to additional costs or national or international market trends. The letter also quoted a narrower detention provision: during a declared emergency, an allegation of price gouging together with failure to possess a license constituted reasonable cause to detain for a reasonable inquiry into the missing license.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the 2007 letter say a sheriff could arrest someone just for charging too much during an emergency?
A: No. It described price gouging as a civil enforcement matter and identified arrest authority for the separate offense of selling goods or services to the public during the emergency without a business tax receipt.

Q: How did the letter describe an unconscionable emergency price?
A: It quoted a statutory comparison with prices during the 30 days before the declaration. A gross disparity was prima facie evidence when the increase was not attributable to additional costs or national or international market trends.

Q: When did the quoted law allow detention over a missing license?
A: During a declared emergency, if there was an allegation of price gouging and the seller lacked a license, the quoted provision allowed only a reasonable detention long enough to inquire into that failure.

Background and statutory framework

The letter addressed Sheriff McKeithen's question about price gouging and arrest authority under section 501.160, Florida Statutes. It quoted the emergency prohibitions for essential commodities, dwelling units, and self-storage facilities, the definition of prima facie unconscionable prices, and subsection (9)'s distinct business-tax-receipt misdemeanor. The letter suggested discussing civil enforcement with the local state attorney.

Citations and references

The letter principally discussed sections 501.160, 501.204, 205.032, and 205.042, Florida Statutes. Its footnotes also described exceptions for government-approved increases and certain sales by food growers, producers, and processors.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/sheriff-enforcement-of-price-gouging
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8289

Original opinion text

The Honorable Frank McKeithen

Bay County Sheriff

3421 North Highway 77

Panama City, Florida 32405

Dear Sheriff McKeithen:

You ask what constitutes price gouging and whether the sheriff's office may arrest for such actions.

Section 501.160(2) and (3), Florida Statutes, provides:

"(2) Upon a declaration of a state of emergency by the Governor, it is unlawful and a violation of s. 501.204 for a person or her or his agent or employee to rent or sell or offer to rent or sell at an unconscionable price within the area for which the state of emergency is declared, any essential commodity including, but not limited to, supplies, services, provisions, or equipment that is necessary for consumption or use as a direct result of the emergency. This prohibition is effective not to exceed 60 days under the initial declared state of emergency as defined in s. 252.36(2) and shall be renewed by statement in any subsequent renewals of the declared state of emergency by the Governor.

(3) It is unlawful and a violation of s. 501.204 for any person to impose unconscionable prices for the rental or lease of any dwelling unit or self-storage facility during a period of declared state of emergency."[1]

It is therefore unlawful during a state of emergency to sell, lease, offer to sell, or offer for lease commodities, dwelling units, or self-storage facilities for an amount that grossly exceed the average price for the commodity the thirty days before the declaration of the state of emergency or the seller price for the commodity the thirty days before the declaration of the state of emergency unless the seller can show increases in its prices or market trends justifying the price. Section 501.160(1)(a), Florida Statutes, defines "commodity" as "any goods, services, materials, merchandise, supplies, equipment, resources, or other article of commerce, and includes, without limitation, food, water, ice, chemicals, petroleum products, and lumber necessary for consumption or use as a direct result of the emergency."

Pursuant to section 501.160(1)(b), Florida Statutes, it is prima facie evidence that a price is unconscionable if:

"1. The amount charged represents a gross disparity between the price of the commodity or rental or lease of any dwelling unit or self-storage facility that is the subject of the offer or transaction and the average price at which that commodity or dwelling unit or self-storage facility was rented, leased, sold, or offered for rent or sale in the usual course of business during the 30 days immediately prior to a declaration of a state of emergency, and the increase in the amount charged is not attributable to additional costs incurred in connection with the rental or sale of the commodity or rental or lease of any dwelling unit or self-storage facility, or national or international market trends; or

2. The amount charged grossly exceeds the average price at which the same or similar commodity was readily obtainable in the trade area during the 30 days immediately prior to a declaration of a state of emergency, and the increase in the amount charged is not attributable to additional costs incurred in connection with the rental or sale of the commodity or rental or lease of any dwelling unit or self-storage facility, or national or international market trends."

Thus, the law compares the price of the commodity or service to the average price charged over the 30-day period prior to the declared state of emergency to determine whether there is a "gross disparity" between the prior price and the current charge then it is price gouging.[2]

This is a civil crime enforced by the Attorney General, the Department of Agriculture and Consumer Services and the State Attorney.[3] You may, therefore, wish to discuss this matter with your local state attorney. Subsection (9) of section 501.160, Florida Statutes, however, provides:

"Upon a declaration of a state of emergency by the Governor, in order to protect the health, safety, and welfare of residents, any person who offers goods and services for sale to the public during the duration of the emergency and who does not possess a business tax receipt under s. 205.032 or s. 205.042 commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. During a declared emergency, this subsection does not apply to religious, charitable, fraternal, civic, educational, or social organizations. During a declared emergency and when there is an allegation of price gouging against the person, failure to possess a license constitutes reasonable cause to detain the person, provided that the detention shall only be made in a reasonable manner and only for a reasonable period of time sufficient for an inquiry into the circumstances surrounding the failure to possess a license."

Thus, the sheriff's office may arrest those persons who offer goods and services for sale to the public during the duration of the emergency and who do not possess a business tax receipt under section 205.032 or section 205.042, Florida Statutes.[4]

I trust that the above informal comments may be of assistance.

Sincerely,

Joslyn Wilson

Assistant Attorney General

JW/t

------------------------------------------------------------------

[1] Section 501.204(1), Fla. Stat., provides that "[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." In construing this subsection, due consideration and great weight is to be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2006. See s. 501.204(2), Fla. Stat.

[2] See s. 501.160(8), Fla. Stat. ("Any violation of this section may be enforced by the Department of Agriculture and Consumer Services, the office of the state attorney, or the Department of Legal Affairs.").

[3] But see ss. 501.160(4) and (5), Fla. Stat., respectively providing that a price increase approved by an appropriate government agency is not be a violation of this section and that the section does not apply to sales by growers, producers, or processors of raw or processed food products, except for retail sales of such products to the ultimate consumer within the area of the declared state of emergency.

[4] See s. 205.032, Fla. Stat., authorizing the governing body of a county to levy, by appropriate resolution or ordinance, a business tax for the privilege of engaging in or managing any business, profession, or occupation within its jurisdiction. Cf. s. 205.042, Fla. Stat., authorizing the governing body of an incorporated municipality to levy a business tax for the privilege of engaging in or managing any business, profession, or occupation within its jurisdiction.