Repent Your Unlicensed Contractor Sins!

Repeatedly saying so isn't harassment under Florida law, court says.

From Potts v. Lewis, decided today by the Florida Court of Appeal (Judge Kelly, joined by Judges Rothstein-Youakim and Atkinson:

[Fla. Stat.] Section 784.048(2) provides that the offense of stalking is committed when a person "willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person." Relevant here, section 784.048(1)(a) defines the term "harass" as "to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." Because the record does not demonstrate a basis for [the trial court's] finding that Potts' actions amounted to harassment as defined by the statute, we reverse….

"[S]ubstantial emotional distress 'is greater than ordinary distress,' and … 'a reasonable person does not suffer substantial emotional distress easily.'" Annoyance, frustration, or embarrassment will not suffice….

[W]e conclude that Lewis's evidence was not legally sufficient to establish that Potts' alleged course of conduct would have caused substantial emotional distress in a reasonable person. Potts is a licensed plumber who knew Lewis from church. Prior to the events leading to the injunction, they were friendly and socialized along with other church members.

Potts came to believe that Lewis was acting as an unlicensed general contractor, so he contacted her via text messages and in person to tell her that what she was doing was improper and illegal and that she needed to stop, "repent," and "tell the truth." He threatened to report her to law enforcement and the licensing authorities if she did not comply with his demands, and eventually he did report her. He included mutual friends and acquaintances in many of the text messages, and he confronted Lewis at church in front of their mutual friends.

The theme of his text messages and conversations to and about Lewis was that she was rude and condescending; that she was a "false witness," a "liar," and a "bully"; that her actions were putting others at risk; that she needed to repent; and that her apologies were insincere. Eventually the church pastor got involved to help mediate the situation with no success.

The evidence shows that Potts was relentless in his quest to get Lewis to "repent" and that nothing Lewis or others did could dissuade him from purs[u]ing the matter. While we in no way condone Potts' behavior, Lewis's evidence is not sufficient to establish that it would have caused a reasonable person substantial emotional distress. See Rosaly v. Konecny (Fla. App. 2022) (accusations of lying, although they might be offensive or defamatory, do not fall within the definition of harassment); Hasan v. Rivera (Fla. App. 2022) (respondent's repeated threats to sue petitioner did not rise to the level of causing substantial emotional distress in a reasonable person); Cash v. Gagnon (Fla. App. 2020) (complaints by one condominium complex resident against another, even though they were "voiced in an intemperate, crude, and uncivil manner," did not entitle the resident to an injunction); cf. Wills v. Jones (Fla. App. 2016) (parents' threats of litigation against their daughter's doctor, creating a "scene" and saying the case manager was subject to "eternal damnation," and repeated unwanted phone calls to their daughter were not acts that would cause objectively reasonable fear).

J. Andrew Crawford represented Potts.