Sources/Types of Statutes
Federal: Slip Laws and Session Laws, United States Code, Annotated Codes.
The United States Code complies codifies the laws of the United States and serves as the official source of laws and resolutions passed by Congress. The annotated copies of the United States Code provide additional information and sources helpful for understanding the text of the statute. There are two versions of the annotated United States Code - the USCA by Westlaw and the USCS by LexisNexis.
State: Slip Laws and Session Laws, Individual Codes, Multistate Surveys of State Laws, Uniform Laws Annotated, Interstate Compacts.
Like the United States Code, each state complies their own general laws. Although the U.S. Constitution is the supreme law of the land, each state is governed by its own constitution. State constitutions are generally far more detailed and more frequently amended than the U.S. Constitution, which generally sets forth broad principles.
Practice Tip: There are a number of free resources that attorneys can and should utilize when researching statutes. A simple google search will often lead directly to the statute at issue. When researching Florida statutes, a quick google search will take you right to the Florida Legislature's official site which contains all of the current state statutes.
Benefits of Annotated Statutes
Annotated statutes can be highly beneficial and extremely useful resources because they provide useful information related to statutory interpretation in addition to the text of the statute, such as relevant legislative history materials such as amendments, committee reports, congressional journals, and bill tracking information.
Annotated statutes can also provide comprehensive case annotations and notes of court decisions that interpret and apply the statute. This is one of the most useful research features because it points out case law that attorneys can cite in support of the statutory interpretation they are am referencing. Annotated statute research aids make understanding statutory law much simpler, therefore increasing the efficiency of time spent researching.
Legitimate Business Interests - Fla. Stat. § 542.335(1)(a) & (b) (2021).
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
1. Trade secrets, as defined in s. 688.002(4).
2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
4. Customer, patient, or client goodwill associated with:
a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
b. A specific geographic location; or
c. A specific marketing or trade area.
5. Extraordinary or specialized training.
Successors and Assignees - Fla. Stat. § 542.335(1)(f) (2021).
(f) The court shall not refuse enforcement of a restrictive covenant on the ground that the person seeking enforcement is a third-party beneficiary of such contract or is an assignee or successor to a party to such contract, provided:
1. In the case of a third-party beneficiary, the restrictive covenant expressly identified the person as a third-party beneficiary of the contract and expressly stated that the restrictive covenant was intended for the benefit of such person.
2. In the case of an assignee or successor, the restrictive covenant expressly authorized enforcement by a party’s assignee or successor.
Enforceability Considerations - Fla. Stat. § 542.335(1)(g) (2021).
(g) In determining the enforceability of a restrictive covenant, a court:
1. Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.
2. May consider as a defense the fact that the person seeking enforcement no longer continues in business in the area or line of business that is the subject of the action to enforce the restrictive covenant only if such discontinuance of business is not the result of a violation of the restriction.
3. Shall consider all other pertinent legal and equitable defenses.
4. Shall consider the effect of enforcement upon the public health, safety, and welfare.
Public Policy Considerations - Fla. Stat. § 542.335(1)(h) & (i) (2021).
(h) A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.
(i) No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.
Void and Unenforceable Restrictive Covenants - Fla. Stat. § 542.335(1)(c) (2021).
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
(c) A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.
Reasonableness of a Restrictive Covenant - Fla. Stat. § 542.335(1)(d) & (e) (2021).
(d) In determining the reasonableness in time of a postterm restrictive covenant not predicated upon the protection of trade secrets, a court shall apply the following rebuttable presumptions:
1. In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.
2. In the case of a restrictive covenant sought to be enforced against a former distributor, dealer, franchisee, or licensee of a trademark or service mark and not associated with the sale of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 1 year or less in duration and shall presume unreasonable in time any restraint more than 3 years in duration.
3. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of:
a. The assets of a business or professional practice, or
b. The shares of a corporation, or
c. A partnership interest, or
d. A limited liability company membership, or
e. An equity interest, of any other type, in a business or professional practice,
a court shall presume reasonable in time any restraint 3 years or less in duration and shall presume unreasonable in time any restraint more than 7 years in duration.
(e) In determining the reasonableness in time of a postterm restrictive covenant predicated upon the protection of trade secrets, a court shall presume reasonable in time any restraint of 5 years or less and shall presume unreasonable in time any restraint of more than 10 years. All such presumptions shall be rebuttable presumptions.
Remedies and Attorneys Fees - Fla. Stat. § 542.335(1)(j) & (j) (2021).
(j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant. No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.
(k) In the absence of a contractual provision authorizing an award of attorney’s fees and costs to the prevailing party, a court may award attorney’s fees and costs to the prevailing party in any action seeking enforcement of, or challenging the enforceability of, a restrictive covenant. A court shall not enforce any contractual provision limiting the court’s authority under this section.
Fla. Stat. § 542.335 (2021): Valid Restraints of Trade or Commerce - Legislative History
Florida 1996 Session Law Service, Fourteenth Legislature, Second Regular Session
Notes of Decisions - Construction and Application
Notes of Decisions - Conflicts of Law
Notes of Decisions - Restrictive Covenants
Notes of Decisions - Enforceability of Covenants
Notes of Decisions - Breach of Covenants
Notes of Decisions - Legitimate Business Interests
Notes of Decisions - Non-competition Agreements
Legislative History Research
The main purpose behind conducting research on legislative history is statutory interpretation and ascertaining the purpose and intent of the legislature. Legislative history research is particularly useful when the plain language of the statute is ambiguous because it can provide insight as to how the ambiguity should be resolved. Additionally, legislative history research can be beneficial when the statute, as written, appears to be unfavorable to your client's position. This may provide a potential argument as to why the statute is not as unfavorable as it may appear on its face.
