Our son, (age 19) was caught trying to shoptlift a $6.00 hacksaw at Home Depot. He was arrested and charged. He was arrested at a later date for another burglary. He spent 30 days in county Jail. He is a prescription drug addict presently incarcerated in a residential treatment program with another 18 months of incarceration to follow that. He is indigent and was defended by a public defender at his trial. We have received letters at our home as Home Depot had our address listed as his home address. I opened them recently and found 3 letters from Palmer, Reifler and Associates threatening to file a law suit on behalf of Home Depot unless payment was made. The first letter demanded $200.00 and the second and third letters demanded an increasing amt each time with the final amt being $475.00. I see through an internet search that this Law office has a Class action law suit filed against them in Miami right now claiming violation of the Federal RICO 18 U S C. Is this demand made in these letters legal? How can they collect money from someone who is presently incarcerated. What should our son do regarding these letters??
Family Law Attorney
In WA, the state allows shopkeepers the right to sue alleged shoplifters for the shops' cost in the incident. The statutes also allow reasonable attorney's fees to the shops.
I do not know if the state in which your son allegedly stole the hacksaw has a similar law. I would not be surprised if it does.
The letters likely are settlement offers to settle the civil claims.
Some people pay the claims as hiring an attorney to defend a civil lawsuit is often much more expensive that a few hundred dollars. Defendants in civil lawsuits generally do not get free attorneys.
Some people do not pay the claims.
Some debt collectors do not file lawsuits, especially against people who have no money.
In Florida retail establishments such as Home Depot rarely, if ever, carry through with this threat in a shoplifting case. Out of the hundreds of thousands of cases they have, I doubt it they are going to start by suing your son. The cost of bringing a law suit when the alleged damages are $200 or less, means that it would be a waste of time for them to bring the lawsuit.
In fact, in a record article by the Wall Street Journal found that when a letter is sent out by Palmer, Reifler & Associates, P.A., the law firm gets to keep between 13% to 30% of the money it collects. The article reports that a partner at the law firm has said in a deposition that it sends out about 1.2 million such letters a year but follow up by suing fewer than 10 times a year.
Instead of actually suing anyone they just send the letter hoping someone worried about the criminal case will pay. And amazingly, many people do pay.
The statute, Florida Statute Section 772.11 allow for triple damages or a minimum of $200 when damages occur related to a theft offense. However, in the typical shoplifting case when the merchandise is recovered at the scene no actual damages occur.
Although no criminal defense attorney can know for sure whether an individual arrested for a misdemeanor offense of shoplifting will in fact be sued to collect damages under Florida Statutes Section 772.11, it is clear that these suits are rarely, if ever, brought in shoplifting cases. In fact, if the item was returned to the retail establishment without damage, then no actual damages occurred.
Even more problematic, the huge fees collected by retail establishments can often create an incentive for a loss prevention to be overly aggressive in the way they investigate an alleged shoplifting. If the retail establishment keeps 70-87% of the money collected, that money may go a long was toward pay the salary of the loss prevention employees. The fact that a letter was sent in the case can be used at trial to show that the loss prevention officer had a motive or bias to make this arrest. That motive or bias is being able to collect more money for his employer or earn a larger bonus for himself.
In fact, some loss prevention officers are awarded a bonus based on the amount of money collected from the civil demand letter. I have heard many clients recently tell me that the loss prevention officer tell them "you better make sure that you pay the $200." In fact, some retail establishments send the letters directly, instead of hiring a law firm to send the letter. This motive or bias could contribute or be on factor leading to the arrested of an innocent person.
Palmer, Reifler & Associates was granted Summary Judgment in its favor in the law suit you referred to for each and every count. The statute in question require that there be an injury or that the retailer be injured in any fashion as a result of the actions of the individual trying to take merchandise or property from it. In Florida, taking possession of the merchandise with an intent to deprive the merchant of the benefit, use or full retail value causes an injury to the property rights of the retailer. The legislature placed minimum damages of $200 to apply even if the merchandise was recovered. We disagree with the attorney who feels that there are no actual damages. The time involved by the loss prevention staff in investigating, detaining and documenting the improper activity, the cost to restock and/or retag the item and the loss of time that the item is out of the stream of commerce can all be considered as damages even if the item itself is not damaged - because it is difficult to ascertain the exact amount of damages, the legislature enacted this statute to place a minimum civil damage amount of $200. Some call this a civil penalty request and feel it is reasonable to request it. Because the statute also allows for recovery of attorney's fees, if a person fails to pay in response to an initial request, some of the follow up demands request attorney's fees. This was evaluated by the Federal Court and the Court granted victory to the Law Offices of Palmer, Reifler & Associates, P.A.