Every now and then, my law firm is retained to defend an obscene or harassing telephone call case. This is not the most popular charge on earth, but it’s interesting law, and tougher to prove than most people realize. Let’s start the analysis with the statute in control of it all, 365.16(1)(b), which states in pertinent part that “(1) Whoever: (b) makes a telephone call, whether or not conversation ensues, without disclosing his or her identity and with intent to annoy, abuse, threaten, or harass any person at the called number; Is guilty of a misdemeanor” and my favorite section adds (5) Nothing contained in this section shall apply to telephone calls made in good faith in the ordinary course of business or commerce.” (so I guess this gets the bill collectors off the hook…).
First of all, a violation of section (b) of the statute only exists when the caller does not identify himself. Thus, if an old boyfriend continues to call and say “Hey, it’s Sam, call me”, that’s not a harassing phone call because the boyfriend has disclosed his identity. Defendant’s charged under section (a) of the statute can take note of the decision in Avrich v. State of Florida, 936 So. 2d 739 (3rd DCA 2006). In Avrich, the Defendant was charged with eight counts of violating section 365.16(1)(a) by making harassing telephone calls to the victim where the victim had a reasonable expectation of privacy. These calls were coming into the victims home, yet the victim held out a phone number from his home from which he ran a comic book business. The calls came into this phone number, published as a business number. The court overturned the convictions, stating that:
“Based on the record before us, it is evident that the defendant made telephone calls to the victim’s business telephone line, located in the victim’s home where he conducted his business. Although the victim may enjoy a reasonable expectation of privacy in his home, that expectation is not extended to his business. See Morningstar, 428 So. 2d at 221 (holding that the constitutional protection of an individual’s reasonable expectation of privacy in his or her home does not extend to a place of business). We find that there was insufficient evidence to satisfy the elements of section 365.16(1)(a) because the defendant only made calls to the victim’s business telephone line.” Id.
As you can see, something as simple as a harassing phone call can still be tough to prove. When in doubt, I humbly suggest you call an experienced defense attorney in Orlando, I know a good one!