Kortun v. Sink - Reply Brief

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FIRST DISTRICT COURT OF APPEALSTATE OF FLORIDA

FREDERICK W. KORTUM,

Appellant,

v. Case No. 1D10-2459L.T. Case No. 2009-CA-3926

ALEX SINK, in her capacity asChief Financial Officer and head

of the Department of FinancialServices for the State of Florida,

Appellee.

_________________________________________________________________

REPLY BRIEF OF APPELLANT, FREDERICK W. KORTUM

_________________________________________________________________

George N. Meros, Jr.

Florida Bar No. 263321Carlos G. Muñiz

Florida Bar No. 535001GrayRobinson, P.A.

301 South Bronough StreetSuite 600 (32301)

Post Office Box 11189Tallahassee, Florida 32302

Telephone (850) 577-9090Facsimile (850) 577-3311

Attorneys for Appellant,

Frederick W. Kortum

E-Copy Received Aug 31, 2010 2:33



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TABLE OF CONTENTS

TABLE OF AUTHORITIES.....................................................................................ii

PRELIMINARY STATEMENT ..............................................................................iv

INTRODUCTION .....................................................................................................1

ARGUMENT.............................................................................................................2

I. The Statute Prohibits Written Contact During the Blackout Period.......2

II. The Statute Restricts Commercial Speech..................................................4

III.The Department Has Not Met Central Hudson’s Harm and NarrowTailoring Requirements. ...............................................................................9

IV. The Statute Violates Plaintiff’s Right to Equal Protection. ....................15

CERTIFICATE OF SERVICE................................................................................17

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT..................18



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TABLE OF AUTHORITIES

Cases

Beckwith v. Department of Business and Professional Regulation,

667 So. 2d 450 (Fla. 1st

DCA 1996) ................................................................5, 11 Board of Trustees of the State University of New York v. Fox,

492 U.S. 469 (1989).....................................................................................2, 9, 13

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York ,447 U.S. 557 (1980)...............................................................................................5

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993).........................................................................................8, 14

Consolidated Edison Co. of New York, Inc. v.

Public Service Commission of New York ,447 U.S. 530 (1980)...............................................................................................7

Edenfield v. Fane,507 U.S. 761 (1993).................................................................................1, 5, 9, 12

First Vagabonds Church of God v. City of Orlando,

610 F.3d 1274 (11th Cir. 2010) ..........................................................................6, 7

Holder v. Humanitarian Law Project ,

__ U.S. __, 130 S. Ct. 2705 (2010)........................................................................7

Insurance Adjustment Bureau v. Insurance Commissioner ,542 A. 2d 1317 (Pa. 1988).........................................................................1, 13, 15

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001)...............................................................................................6

Ohralik v. Ohio State Bar Association,436 U.S. 447 (1978).............................................................................................12

Pruett v. Harris County Bail Bond Board ,499 F.3d 403 (5th Cir. 2007)...................................................................................5

Resort Development International, Inc. v. City of Panama City Beach,636 F. Supp. 1078 (N.D. Fla. 1986) .....................................................................7

State v. Bradford ,

787 So. 2d 811 (Fla. 2001).....................................................................................6

State v. Conforti,

688 So. 2d 350 (Fla. 4th DCA 1997)......................................................................6



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United States v. O’Brien,391 U.S. 367 (1968)...........................................................................................5, 9

United States v. Stevens,

__ U.S. __, 130 S. Ct. 1577 (2010)........................................................................4

Statutes

§ 626.854(5), Fla. Stat. (2009).................................................................................15

§ 626.854(6), Fla. Stat. (2009)...................................................................................2



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PRELIMINARY STATEMENT

On appeal, Appellant, Frederick W. Kortum, will be referred to as

“Plaintiff.” Appellee, Alex Sink, in her capacity as Chief Financial Officer and

head of the Department of Financial Services for the State of Florida, will be

referred to as “the Department.”

Reference to the record on appeal shall be by “R” followed by the volume

number and page number(s), e.g., (R1-25-26).

Reference to the trial transcript, contained within two volumes, shall be by

“TT” followed by the page number(s), without regard to volume number, e.g., (TT

145).

Reference to the trial exhibits shall be by “Pl. Ex.” or “Def. Ex.” followed

by the exhibit number, e.g., (Pl. Ex. 6).

All emphasis is supplied unless otherwise indicated.



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INTRODUCTION

There is no precedent for applying the O’Brien standard to review a law that,

on its face, restricts speech. Overwhelming authority—from the U.S. Supreme

Court, the Florida Supreme Court, and this Court—holds that professional

solicitation restrictions like the ones in the Statute are to be assessed under the

Central Hudson standard. Refusing even to discuss Central Hudson ( see Ans.

Brief at 15), the Department fails to explain how (if at all) the Statute addresses a

real harm; why other existing consumer protections in Florida law are insufficient

to accomplish the interests promoted by the Statute; and why this Court should not

follow the persuasive authority of Insurance Adjustment Bureau v. Insurance

Commissioner , 542 A. 2d 1317 (Pa. 1988), where the Pennsylvania Supreme Court

applied Central Hudson to strike down a 24-hour restriction on public adjuster

solicitation.

The Supreme Court has held that “a governmental body seeking to sustain a

restriction on commercial speech must demonstrate that the harms it recites are real

and that its restriction will in fact alleviate them to a material degree.” Edenfield v.

Fane, 507 U.S. 761, 770-71 (1993). It also has held that the government must

prove that a commercial speech restriction is “narrowly tailored to achieve the

desired objective.” Board of Trustees of the State University of New York v. Fox,



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492 U.S. 469, 480 (1989). The Department has failed to meet this burden; indeed,

it has hardly tried.

ARGUMENT

I. The Statute Prohibits Written Contact During the Blackout Period.

The Statute is unconstitutional even if one accepts the Department’s

interpretation of the Statute’s prohibitions. Nonetheless, because the Department

continues to assign great weight to a supposed exception for written and electronic

communications, Plaintiff will briefly explain why the Department’s interpretation

is wrong. See also In. Brief at 16-21.

The Statute provides as follows:

A public adjuster may not directly or indirectly through any other

person or entity initiate contact or engage in face-to-face or telephonicsolicitation or enter into a contract with any insured or claimant under

an insurance policy until at least 48 hours after the occurrence of anevent that may be the subject of a claim under the insurance policy

unless contact is initiated by the insured or claimant.

§ 626.854(6), Fla. Stat. (2009).

The text of the Statute is clear and straightforward: unless in response to the

claimant, a public adjuster may not “initiate contact” with a claimant during the

48-hour blackout period. Nothing in the text of the Statute limits such contact to

face-to-face or telephonic communication. Instead, only the Statute’s separate

prohibition on “solicitation” is modified by the adjectives “face-to-face or

telephonic.” By focusing exclusively on the prohibition on “face-to-face or



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telephonic solicitation,” the Department ignores the Statute’s plain meaning and

essentially pretends that the Statute’s separate and distinct “initiate contact”

restriction is not there.

There is no merit to the Department’s argument that the adverbial phrase

“indirectly through any other person or entity,” which modifies all three of the

Statute’s prohibitions, has the effect of allowing written communication between a

public adjuster and a claimant. See Ans. Brief at 7-8. That phrase merely prohibits

a public adjuster from using another person or entity to do something which the

public adjuster may not do himself. The phrase has nothing to do with the means

of communication a public adjuster or his agent might use to initiate contact with

or solicit a claimant. If the phrase “indirectly through any other person or entity”

had the meaning and effect the Department ascribes to it, it would have been

unnecessary for the Legislature to modify the solicitation restriction with the

adjectives “face-to-face or telephonic.”

The Department’s erroneous interpretation of the Statute stems from the

refusal to acknowledge that the statutory text differs from the proposal that

emanated from the Citizens Task Force. See Ans. Brief at 7. The Task Force

proceedings are of no help to the Department, because the critical “initiate contact”

prohibition was added by the Legislature after the Task Force had issued its final

recommendations. See In. Brief at 7-8.



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Finally, Plaintiff notes the argument of amici curiae Property Casualty

Insurers Association of America (“PCIA”) and National Association of Mutual

Insurance Companies (“NAMIC”) that, “if two reasonable interpretations exist,

one of which would lead to [the Statute’s] constitutionality and the other to its

unconstitutionality, the former rather than the latter must be adopted.” See

PCIA/NAMIC Brief at 6-7. This canon of construction is inapplicable here,

because finding “ambiguity” in the Statute requires the reader to disregard the

Statute’s plain language and meaning. A court may not “rewrite” a law to conform

it to constitutional requirements. See United States v. Stevens, __ U.S. __, 130 S.

Ct. 1577, 1591-92 (2010). In any event, there is no saving the Statute—it is

unconstitutional even under the Department’s interpretation.

II. The Statute Restricts Commercial Speech.

The direct and intended effect of the Statute is to restrict public adjusters’

speech. The express terms of the Statute provide that a public adjuster may neither

initiate contact with nor solicit a claimant during the Statute’s 48-hour blackout

period. The very thing that is prohibited is a public adjuster speaking to a

claimant. Accordingly, the Department’s argument that the Statute’s effect on

speech is “merely incidental” (Ans. Brief at 1) is nonsensical. And there is no

support in case law or in logic for treating the Statute as a “conduct restriction” and



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evaluating it under the standards set out in United States v. O’Brien, 391 U.S. 367

(1968).

The Supreme Court’s analysis in Edenfield v. Fane, 507 U.S. 761 (1992),

establishes beyond any doubt that the Statute must be evaluated as a speech

restriction rather than as a regulation of conduct. Edenfield involved a challenge to

a ban on in-person and telephonic solicitation by CPAs. The Supreme Court began

its analysis: “Whatever ambiguities may exist at the margins of the category of

commercial speech, it is clear that this type of personal solicitation is commercial

expression to which the protections of the First Amendment apply.” Id. at 765.

The Court then proceeded to evaluate the solicitation restriction under the

standards set out in Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York , 447 U.S. 557 (1980).

Indeed, courts uniformly treat restrictions on professional solicitation as

commercial speech restrictions and assess their constitutionality under the Central

Hudson test. This is true even if (as in Edenfield ) the law under review restricts

only face-to-face or telephonic solicitation. See, e.g., Beckwith v. Department of

Business and Professional Regulation, 667 So. 2d 450 (Fla. 1st DCA 1996)

(striking solicitation restriction aimed at hearing aid specialists); Pruett v. Harris

County Bail Bond Board , 499 F.3d 403 (5th Cir. 2007) (striking 24-hour solicitation

restriction aimed at bail bondsmen). And it is true when (as here) the law under



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review restricts both written and in-person solicitation. See, e.g., State v. Bradford ,

787 So. 2d 811 (Fla. 2001) (striking down regulation aimed at solicitation

involving PIP insurance benefits).

Neither the Department nor the amici can identify a single case in which a

court has applied O’Brien to evaluate a statute that facially restricts professional

solicitation. The reason is that the O’Brien test is reserved for laws that do not

facially restrict speech but might, in application, affect “expressive conduct” (e.g.,

burning a draft card or nude dancing). As the Supreme Court stated in Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525 (2001): “To qualify as a regulation of

communicative action governed by the scrutiny outlined in O’Brien, the State’s

regulation must be unrelated to expression.” Id. at 567; see also City of Erie v.

Pap’s A.M., 529 U.S. 277, 290 (2000) (applying O’Brien to evaluate nudity

ordinance that “[by] its terms . . . regulates conduct alone”).

The Department and the amici together cite exactly two cases applying the

O’Brien test, neither of which involved anything even close to the Statute or the

issues presented here. In State v. Conforti, 688 So. 2d 350 (Fla. 4th DCA 1997),

two erotic dancers claimed that a statute prohibiting lewdness infringed their First

Amendment right to “communicate the message of eroticism” through their

dancing and sexual acts. Id. at 353. And in First Vagabonds Church of God v.

City of Orlando, 610 F.3d 1274 (11th Cir. 2010), the plaintiffs claimed that an



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ordinance regulating “large group feedings” unconstitutionally restricted their

ability to hold “food sharing events” and thereby to “convey the message that

society can and should provide food to all of its members.” Id. at 1283.

O’Brien is inapplicable for the additional reason that the Statute is not

content neutral. See, e.g., Holder v. Humanitarian Law Project , __ U.S. __, 130 S.

Ct. 2705, 2723 (2010) (“O’Brien does not provide the appropriate standard for

reviewing a content-based regulation of speech.”).1 The Department has stipulated

that “[t]here are no time restrictions on insurance company adjusters, cleaning

services, contractors, roofers, smoke-mitigation or water damage experts, etc., who

all may freely approach policyholders in the immediate aftermath of claim

producing events.” (R4-752). The Statute is content based because, on its face, it

treats the commercial speech of public adjusters differently from the commercial

speech of all the other commercial actors who might want to solicit a claimant in

the first 48 hours after a claim-producing event. Under the Statute, it is legal to

say, “I am a mitigation specialist, hire me.” But it is illegal to say, “I am a public

adjuster, hire me.” Cf. Resort Development International, Inc. v. City of Panama

City Beach, 636 F. Supp. 1078, 1083 n. 4 (N.D. Fla. 1986) (“Ordinance No. 297

1 The Department suggests that the Statute should be treated as a time, place or manner restriction. (Ans. Brief at 5). This framework is inapplicable because, like

the O’Brien standard, it is reserved for laws that are content neutral. See

Consolidated Edison Co. of New York, Inc. v. Public Service Commission of NewYork , 447 U.S. 530, 536 (1980).



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does not further differentiate or discriminate among forms of regulated commercial

solicitation and, therefore, is content neutral.”).

The Department misses the mark when it argues that the Statute is content

neutral because it is justified by the State’s desire to promote ethical conduct and

to protect claimants’ privacy. In City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410 (1993), the Supreme Court struck down a city ordinance that prohibited

newsracks that distributed “commercial handbills,” but allowed newsracks that

distributed ordinary newspapers. The city argued that its regulation was content

neutral “because the interests in safety and esthetics it serves are entirely unrelated

to the content of [the regulated publications.] Thus, the argument goes, the

justification for the regulation is content neutral.” Id . at 429 (emphasis in original).

The Court rejected the city’s argument, noting that “the very basis for the

regulation is the difference in content between ordinary newspapers and

commercial speech.” It was irrelevant that the city had not acted with “animus

toward the ideas” in the regulated publications: “[J]ust last Term we expressly

rejected the argument that discriminatory treatment is suspect under the First

Amendment only when the legislature intends to suppress certain ideas.” Id .

The Statute is similarly content based. Regardless of its justification, the

Statute treats communication and solicitation by public adjusters differently from

communication and solicitation by other entities seeking to address claimants in



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the immediate aftermath of an event. Moreover, to the extent it focuses on

“solicitation,” the Statute necessarily addresses content. Both Supreme Court

precedent and common sense compel the conclusion that the Statute is not content

neutral.

III. The Department Has Not Met Central Hudson’s Harm and Narrow

Tailoring Requirements.

The Supreme Court could not be more clear: “[A] governmental body

seeking to sustain a restriction on commercial speech must demonstrate that the

harms it recites are real” and that “it is regulating speech in order to address what

is in fact a serious problem.” Edenfield v. Fane, 507, U.S. 761, 771, 776 (1993).

The government also is required to prove that a commercial speech restriction is

“narrowly tailored to achieve the desired objective.” Board of Trustees of the State

University of New York v. Fox, 492 U.S. 469, 480 (1989).2 The Department’s

failure to meet this burden is fatal to its defense of the Statute.3

The Department’s Answer Brief virtually concedes that, at the time the

Legislature enacted the Statute, there was no record evidence that the Statute’s

2 Significantly, because the Statute is not narrowly tailored, it would not even meet

the O’Brien standard advocated by the Department. O’Brien itself also requiresnarrow tailoring. See O’Brien, 391 U.S. at 378 (speech restriction must be “no

greater than is essential” to further state interests).3 The Department suggests that the trial court made “fact findings” that are relevant

to this appeal and that must be presumed correct. See Ans. Brief at 2. But theDepartment identifies no such findings, and there are none. The trial court merely



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speech restrictions remedy an actual, serious harm. The Department acknowledges

Plaintiff’s allegation that “no testimony or other evidence was presented to the task

force or to legislators who considered the task force recommendations to

demonstrate that a 48-hour ban on early solicitation would directly advance the

state’s goal of protecting the public.” (Ans. Brief at 28-29.) Instead of rebutting

Plaintiff’s claim by pointing out record evidence of harm, the Department instead

suggests that the Statute must be sustained even if there is no such evidence. (Ans.

Brief at 28-29.)

Nor has the Department produced post-enactment evidentiary support to

save the Statute from invalidity.4 Instead of presenting evidence of serious harm

stemming from public adjusters’ solicitation practices, the Department simply

imagines hypothetical public adjusters who subject homeowners to “contentious”

and “unending” solicitation and to “ceaseless badgering.” (Ans. Brief at 11.)

Having constructed this bogeyman, the Department asserts that the Statute merely

regulates “the conduct of unethical public adjusters.” (Ans. Brief at 10.)

Of course, the Department’s imagined problems have nothing to do with the

Statute’s prohibitions on written contact during the blackout period. And the

interpreted the Statute and applied the O’Brien standard in light of the court’s viewof what the Statute does and does not allow.4 Contrary to an assertion by amici PCIA and NAMIC ( see Brief at 15), nowhere inits report did OPPAGA “find” that public adjusters “targeted consumers during

emotionally vulnerable times.”



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Department presented no evidence that it is per se unethical for a public adjuster to

solicit a claimant in person or over the phone during the first 48 hours after a

claim-producing event. Yet that unproven assumption underlies the Statute. Even

under the Department’s limiting interpretation, the Statute prohibits all face-to-face

and telephonic solicitation during the blackout period, even if it is conducted

ethically. As this Court held in Beckwith v. Department of Business and

Professional Regulation, 667 So. 2d 450 (Fla. 1st DCA 1996), “the First

Amendment right to engage in commercial speech may not be so significantly

limited on mere speculation that [unethical] behavior might possibly occur.” Id. at

451-52 (emphasis in original).

The Department has no answer for the fact that all the record evidence in

this case indicates that public adjuster solicitation in Florida poses no significant

harm, much less the “serious problem” required by the Supreme Court in

Edenfield . The Department’s Answer Brief does not even acknowledge the

Department’s stipulation that “[v]ery few complaints against public insurance

adjusters received by DFS over the past five years [less than two percent] even

mentioned early solicitation.” (R4-756). Nor does the Department gain anything

from its unpersuasive5 attempt to minimize the significance of the OPPAGA study

5 For example, the Department argues that the OPPAGA study and the Task Forcereport are “inapposite” because “neither deals with constitutional issues but are

confined to statistical analyses.” Ans. Brief at 15.



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and the Citizens Task Force report.6 (Ans. Brief at 15.) It is not Plaintiff’s burden

in this case to prove the absence of harm. See, e.g., Edenfield , 507 U.S. at 770

(“party seeking to uphold a restriction on commercial speech carries the burden of

justifying it”).

Although the Department itself does not make this argument, amicus FPCA

argues that, regardless of whether actual harm has been proven, the Statute’s

speech restrictions are valid prophylactic rules under the authority of Ohralik v.

Ohio State Bar Association, 436 U.S. 447 (1978). There are at least three reasons

why Ohralik is inapposite. First, the Supreme Court has itself held that “Ohralik in

no way relieves the State of the obligation to demonstrate that it is regulating

speech in order to address what is in fact a serious problem and that the

preventative measure it proposes will contribute in a material way to solving that

problem.” Edenfield , 507 U.S. at 776. Here, as explained above, the Department

has failed to prove harm. Second, Ohralik is a pre-Central Hudson case decided

under a legal standard that did not require the state to prove narrow tailoring, an

issue that the Ohralik Court did not address at all. In this case, as explained below,

the Department has not even attempted to explain why the extensive public

6 Amici PCIA and NAMIC take the opposite approach from the Department,suggesting that the mere fact that the Citizens Task Force supposedly studied

public adjuster issues somehow justifies the Statute. See PCIA/NAMIC Brief at14-17. Their argument ignores the fact that, extensive or not, the Task Force’s

work and study produced no evidence of harm.



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adjuster regulations in Florida are insufficient to accomplish the State’s objectives.

Finally, as the Court emphasized in Edenfield , the result in Ohralik reflects unique

attributes of legal training, traditions of legal ethics, and the lawyer-client

relationship. The Pennsylvania Supreme Court explicitly found Ohralik inapposite

for the very reason that lawyers are different and are treated uniquely in the law.

See Insurance Adjusters Bureau, 542 A. 2d at 1322 n. 7.

It is now clear that the Department’s proof of the harm supposedly addressed

by the Statute consists entirely of three incidents that, by Plaintiff’s stipulation,

involved improper solicitation conduct. See Ans. Brief at 10. Under the applicable

case law, that is plainly insufficient to justify the burdensome speech restrictions

imposed by the Statute.7

The Department also has not met its burden to prove that the Statute is

“narrowly tailored to achieve the desired objective.” See Fox, 492 U.S. at 480.

Part of the “narrow tailoring” requirement involves showing that the State

“carefully calculated” the costs and benefits associated with the Statute’s speech

restrictions. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417

7 Amici PCIA and NAMIC cite the OPPAGA Report’s statistics about casesinitiated and arrests made by the Division of Insurance Fraud. PCIA/NAMIC Brief

at 15. But the Report does not say that any of those cases involved solicitationmisconduct. Amicus FPCA cites (and attaches to its brief) several news accounts

about alleged misconduct by public adjusters. See FPCA Brief at 17-18. Asidefrom being outside the record, those accounts are irrelevant—not a single one deals

with alleged solicitation misconduct.



# 236451 v1 14

(1993). The evidence presented at trial showed that the Statute imposes high costs:

it deprives the homeowner of access to an important source of information at a

critical time. The Department’s own expert testified that, upon the occurrence of a

claim-inducing event, the policyholder enters “into a different relationship with

their insurance carrier, which is an adversarial relationship and a negotiation.” (TT

258). And no record evidence rebuts the testimony that, during the first 48 hours

after an event, the homeowner must make critical decisions affecting his ultimate

recovery (e.g., how best to preserve evidence and what mitigation measures to

pursue). See In. Brief at 2-3; 8-9. Thus, in exchange for no discernible benefit, the

Statute suppresses the commercial speech of the one actor who is the

policyholder’s fiduciary and advocate.

The Statute also fails Central Hudson’s narrow tailoring requirement

because Florida law already has measures in place that accomplish the Statute’s

purported goals without violating public adjusters’ right to free speech. The

Department itself stipulated that it “has statutory authority to deal with unethical

conduct or fraudulent behavior by public adjusters.” (R4-758). A statutory code

of ethics prohibits public adjusters from negotiating with claimants who are

in emotional distress. (R4-757-58). Consumers have a statutory grace period to

cancel public adjuster contracts. ( Id.). Florida law prohibits public adjusters from

soliciting claimants between the hours of 8:00 p.m. and 8:00 a.m. and on Sundays.



# 236451 v1 15

See § 626.854(5), Fla. Stat. (2009). And, of course, Florida law subjects public

adjuster contracts to consumer protection and anti-fraud provisions. (R4-757).

The Pennsylvania Supreme Court invoked comparable provisions of Pennsylvania

law when it concluded that Pennsylvania’s 24-hour public adjuster solicitation ban

restricted more speech than necessary, violating Central Hudson’s narrow tailoring

requirement. See Insurance Adjustment Bureau v. Insurance Commissioner , 542

A. 2d 1317, 1323 (Pa. 1988).

IV. The Statute Violates Plaintiff’s Right to Equal Protection.

The Department’s Answer Brief fails to overcome Plaintiff’s argument that

the Statute is fundamentally irrational. Plaintiff does not claim that public

adjusters are in all respects the same as contractors, roofers, mitigation experts, etc.

Rather, Plaintiff’s point is that there is no rational basis for singling out public

adjusters for adverse solicitation restrictions. Nothing in the record suggests that

public adjusters are any more likely to invade homeowners’ privacy or to engage in

solicitation-related misconduct than any of the other entities that solicit claimants

in the aftermath of a claim-producing event. And the fiduciary obligations,

regulations, and licensing criteria governing public adjusters make them less

justifiable candidates for additional—and discriminatory—speech restrictions.

Under these circumstances, the Statute subjects public adjusters to irrational and

discriminatory treatment, in violation of their right to equal protection of the laws.



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Respectfully submitted,

/s/ Carlos G. Muñiz

George N. Meros, Jr.Carlos G. Muñiz



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CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was furnished by U.S. Mail on August

31, 2010, to the following:

Michael H. Davidson

Department of Financial Services200 East Gaines Street

612 Larson BuildingTallahassee, Florida 32399

Telephone (850) 413-4178EMail:

[email protected]

/s/ Carlos G. MuñizGeorge N. Meros, Jr.


Florida Bar No. 535001GrayRobinson, PA

301 South Bronough StreetSuite 600 (32301)

Post Office Box 11189Tallahassee, FL 32302

Telephone (850) 577-9090Facsimile (850) 577-3311

Attorneys for Appellant, Frederick W. Kortum



CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT

I certify that the font used in this brief is Times New Roman 14 point and in

compliance with Rule 9.210, Florida Rules of Appellate Procedure.

/s/ Carlos G. MuñizGeorge N. Meros, Jr.


Florida Bar No. 535001

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Kortun v. Sink - Reply Brief

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