What was once considered a cost of doing business, has now been turned into a money-making endeavor by store owners. Retailers are threatening to sue persons caught shoplifting in their stores for something called “civil recovery." Civil recovery is where a retailer seeks to recover statutory damages from an individual who was arrested or charged with Retail Theft. (See: Florida Statute Section 812.015) Civil recovery is not a new remedy, but the procedure is fairly unknown.
Here is how it works. A retailer accuses a person of stealing a t-shirt valued at $10.00. The shopkeeper detains the person and acquires their personal information. The accused individual, surrenders the merchandise to the retailer and is arrested or charged by law enforcement with “Retail Theft." This is where civil recovery comes into play. The retailer then turns over the person’s name, address, and telephone number to a law firm specializing in this type of action. Under Florida law, civil recovery enables the merchant to then recover a $200.00 damage amount from the shoplifter. (See: Florida Statute Section 772.11) This recovery is designed to offset the expense of their store’s overall loss prevention costs. The National Retail Federation claims that the money retailers collect through civil recovery is "minimal" compared with their fraud losses and store security expenses.
Our office routinely hears complaints from clients that they have been receiving intimidating phone calls, letters, and threats of a lawsuit from a law firm representing a shopkeeper. Of course, the person who could not afford the $10 t-shirt surely cannot afford this statutory “minimum $200.00 damage amount that has been set by the Florida Legislature. To add insult to injury, the same law allows for the merchant’s recovery of attorney fees and other costs - should the shoplifter contest the merchant’s civil recovery but ultimately lose the action in court.
The statute mandates that before the retailer files a lawsuit against the shoplifter, written demand for the $200.00 must be sent to the accused. That is where the correspondence sent by the law firm comes in. Many of our clients who are arrested or charged with Retail Theft subsequently receive such a letter from a law firm demanding the payment of this $200.00 sum. The correspondence often upsets our clients and simply adds additional unnecessary stress to their ongoing concern over their pending criminal prosecution. Clients are likewise confused by the letters, since in most cases, the stolen merchandise was recovered by store personnel at the time of their arrest. Clients repeatedly ask us “wouldn’t that eliminate the need for the store to collect restitution?" But what they don’t understand is that the demand for this money has nothing to do with restitution. In fact, it has absolutely nothing to do with their criminal prosecution commenced by the local State Attorney's Office.
The truth of the matter is that bringing a law suit seeking a $200.00 sum can be an expensive and rather risky proposition on the part of the merchant. There would of course, be the additional cost associated with paying their lawyer to draft the lawsuit and attend subsequent court proceedings. Likewise, the county Clerk of Court will require a filing fee for the lawsuit. . Furthermore, the issuance of the summons will set the merchant back an additional $10.00. Finally, the initial legal pleadings (called a “complaint,") has to be served by an official with the Sheriff's Office or a licensed process server. That represents an additional expense of about $40.00. Even if the merchant subsequently prevails in his lawsuit, there could be substantial additional costs associated with his litigation to enforce or collect on the judgment.
These are the considerations the merchant is forced to ponder if he chooses to pursue his $200.00 remedy beyond the measly amount he expended by sending his "threatening" form letter. It becomes even more difficult for the merchant if the person accused of shoplifting is “judgment proof." Which is legal slang used by attorneys to describe an individual who has no assets from which to collect against the court awarded judgment. In other words, “you can’t squeeze water from a stone." The Wall Street Journal reported that the Florida law firm Palmer Reifler & Associates handles "civil recovery" claims for 48 different merchants, including Wal-Mart and Walgreens. The lawyers in this firm send out about 1.2 million civil recovery demand letters a year, but follow up by suing fewer than 10 times per year. Given this statistic, it appears that the risk of a lawsuit associated with a failure to pay this "civil demand" is quite low.
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