Supreme Court of Florida
MCKENZIE CHECK ADVANCE OF FLORIDA, LLC., etc., et al.,
WENDY BETTS, etc.,
[April 27, 2006]
We have for review the decision in Betts v. McKenzie Check Advance of
Florida, LLC, 879 So. 2d 667 (Fla. 4th DCA 2004), which certified conflict with
the decision in Betts v. Ace Cash Express, Inc., 827 So. 2d 294 (Fla. 5th DCA
2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue before
this Court is whether chapter 560, Florida Statutes (Supp. 1994), which is titled the
“Money Transmitters’ Code” (herein referred to as “the Code”), authorized certain
financial transactions referred to as deferred presentment transactions. We approve
the holding of the Fourth District in McKenzie that the Legislature did not approve
or authorize such transactions when it created the Code in 1994 and that these
transactions are, in effect, loans subject to Florida’s usury laws.1 We disapprove of
the Fifth District’s contrary holding in Ace Cash.
FACTS AND PROCEDURAL HISTORY
The factual transactions that gave rise to the present dispute are summarized
in the Fourth District’s opinion:
Betts’s business relationship with NCA [National Cash
Advance] began in August 1997 when she gave NCA two checks,
each in the amount of $115. In return, she received $200 in cash and
NCA’s promise to defer presentment of the checks for a specified
time. Approximately one week later, Betts redeemed the checks for
cash. Less than one week later, Betts gave NCA three more checks,
each for $115, in exchange for $300 and the same promise by NCA.
Approximately two weeks later, Betts replaced the checks with three
new checks, which she ultimately replaced with cash two weeks
thereafter. A number of similar transactions subsequently took place,
with Betts continuing to replace one check with another check, each
time paying a fee, until December 1997 when she redeemed all checks
McKenzie, 879 So. 2d at 668-69 (Fla. 4th DCA 2004) (footnote omitted). A
similar, although not identical, set of circumstances was presented in Ace Cash,
827 So. 2d at 294. Following a trial court decision against Betts based on the Fifth
District’s earlier decision in Ace Cash, the Fourth District reversed and held that
the deferred payment transactions between Betts and NCA were essentially loan
transactions and were not authorized with the Legislature’s enactment of the
1. We decline to address the issue of whether National Cash Advance
(NCA) is entitled to the protection of the safe harbor provision, section 560.107,
Florida Statutes (Supp. 1994).
Money Transmitters’ Code in 1994. McKenzie, 879 So. 2d at 674-75. The Fourth
District decided that the short-term loan agreements entered into between Betts and
NCA contrasted sharply with the check cashing transactions authorized by the
There is no question that what takes place is something more than
simple check cashing. In a deferred presentment transaction, the
customer is advanced money in exchange for a check which the lender
agrees not to immediately cash. In exchange for agreeing to defer
presentment of the check, the lender exacts a fee. As Betts argues in
this case, one might wonder why anyone would utilize the services of
a “check casher” and pay for what he or she could otherwise obtain
for free at a bank. Clearly, it is because the customer does not have
the funds readily available to honor the check. Thus, there can be no
question that what takes place is essentially an advance of money or a
McKenzie, 879 So. 2d at 672. The Fourth District certified that its holding was in
conflict with the Fifth District’s holding in Ace Cash, and this review follows.
As outlined in the Fourth District’s opinion, the Florida Legislature enacted
the Money Transmitters’ Code in 1994. This Code sought to regulate the practices
of the money transmitter industry, including check cashing. The Code’s definition
of “money transmitter” referred to “any person located in or doing business in this
state who acts as a payment instrument seller, foreign currency exchanger, check
casher, or funds transmitter.” § 560.103(10), Fla. Stat (Supp. 1994). The Code
defined “check casher” as “a person who, for compensation, sells currency in
exchange for payment instruments received, except travelers checks and foreigndrawn payment instruments.” § 560.103(3). “Sell” was defined as “to sell, issue,
provide, or deliver.” § 560.103(19). A “payment instrument” meant “a check,
draft, warrant, money order, travelers check or other instrument or payment of
money, whether or not negotiable.” § 560.103(14). Moreover, “cashing” was
defined as “providing currency for payment instruments, except for travelers
checks and foreign-drawn payment instruments.” § 560.302(1). Finally, the
Department of Banking and Finance was charged with interpreting and enforcing
the Code. §§ 560.102(1), 560.105.
The following year, on February 24, 1995, the Florida Check Cashiers
Association (FCCA),2 a group representing the Florida check cashing industry,
solicited and received an informal opinion letter from the Department of Banking
and Finance concerning certain deferred check cashing practices. The
Department’s letter stated that “Chapter 560, Florida Statutes, does not explicitly
prohibit the concept of deferred deposits” so long as the service would be offered
and managed in accordance with the provisions and fee caps of the Code.
Subsequently, on September 24, 1997, the Department adopted rules
regulating check cashing transactions. These rules permitted a check casher to
2. The Florida Check Cashiers Association is now known as Financial
Service Centers of Florida, Inc.
accept a postdated check,3 and capped the transaction fees for such transactions at
ten percent and the verification fees at five dollars. Fla. Admin. Code R. 3C560.801 (transferred to R.69V-560.801), 3C-560.803 (repealed 2001), and 3C560.905 (transferred to R.69V-560.905).
On May 5, 1998, the Department sent a letter to Advance America, Cash
Advance Centers of Florida, Inc., regarding cashing checks, fees associated with
deferred deposit checks, and rollover transactions of deferred deposit checks. This
letter stated that customers cashing checks must receive currency, not another
check or other type of payment instrument. In referencing deferred presentment
transaction practices, the letter described the limitations on fees that can be charged
by check cashers and explicitly referenced Florida’s Usury Law in section 687.02,
Florida Statutes (1997), stating that “it is illegal to charge a higher rate of interest
than 18 percent per annum simple interest. Any ‘rollover,’ ‘extension’ or
‘renewal’ of a deferred deposit check for an additional fee may constitute interest.”
In the final paragraph of the letter, the Department put Advance America on notice
that the Department would fully enforce chapter 560 and that Advance America
3. Florida Administrative Code Rule 3C-560.803 provided, “A check casher
may accept a postdated check, subject to the fees established in Section
560.309(4), F.S.” This rule only permitted postdated checks in check cashing
transactions. Because there were no postdated checks in this case, we need not
address the issue of whether the Department had the authority to promulgate this
should “refrain from issuing payment instruments [for which it is] not properly
On May 1, 2000, the Florida Attorney General’s Office issued an advisory
legal opinion to the Comptroller of Florida in response to the question: “Are socalled ‘payday loans’ or like transactions subject to the state laws prohibiting
usurious rates of interest?” Op. Att’y Gen. Fla. 00-26 (2000). The opinion stated:
“Payday loans” or like transactions are subject to the state laws
prohibiting usurious rates of interest. A company registered under
Chapter 560, Florida Statutes, may cash personal checks for the fees
prescribed in that chapter without violating the usury laws only if
such transactions are concluded and are not extended, renewed or
continued in any manner with the imposition of additional fees.
Thus, to the extent that a transaction comports with the
provisions of this act [chapter 560], it would not violate the usury
provisions in Chapter 687, Florida Statutes. In the absence of
statutory authorization for these types of transactions, cashing a check
or exchanging currency for a fee outside the scope of Chapter 560,
Florida Statutes, would constitute a loan, subject to the usury
provisions of Chapter 687, Florida Statutes.
Op. Att’y Gen. Fla. 00-26 (2000).
In 2001, Betts filed an administrative challenge to Department rule 3C560.803, Fla. Admin. Code, claiming that the rule, in seeming to authorize the
acceptance of postdated checks by a check casher, was an invalid exercise of
delegated legislative authority; furthermore, the rule improperly enlarged,
modified, or contravened specific provisions of the Code it was meant to
implement. After a hearing, an Administrative Law Judge (ALJ) upheld the rule,
finding it did not enlarge, modify, or contravene the Code and it was a proper
exercise of delegated legislative authority. Betts v. Dep’t of Banking & Fin., No.
01-1445RX (Fla. DOAH order filed Sept. 7, 2001). However, the ALJ concluded
that the Department’s rule did not authorize deferred deposit transactions or the
fees to be charged for such transactions. Id. The order stated that “[t]he
Department has no rule, order, or declaratory statement authorizing deferred
deposit transactions or repeated, consecutive deferred deposit transactions by a
registered check casher.” Id. at 11. Moreover, the order stated that “[t]he rule does
not establish the fees nor does it authorize ‘rollover transactions’ or ‘payday
loans.’ ” Id. at 32.
In 2001, the Legislature amended the Code to expressly permit deferred
presentment transactions subject to certain limitations and to prohibit rollover
transactions. See Deferred Presentment Act, ch. 2001-119, § 13, Laws of Fla.
(codified at §§ 560.401-.408, Fla. Stat. (2001)). A “deferred presentment
transaction” is defined in the amendment as “providing currency or a payment
instrument in exchange for a person’s check and agreeing to hold that person’s
check for a period of time prior to presentment, deposit, or redemption.” §
560.402(6). In the amended version of the statute, the Legislature expressly
authorized deferred presentment transactions subject to the lender’s compliance
with strict record-keeping, notice, and Truth-in-Lending disclosure requirements.
See § 560.404. The statute limits the face amount of the check taken for deferred
presentment to not more than $500 and caps the fee for such transactions at ten
percent. § 560.404(5)-(6). The statute expressly prohibits the post-dating of
checks and any rollover or extension of a deferred presentment agreement. §
560.404(12), (14), (18).
We must decide whether the Legislature intended to include the deferred
presentment transactions challenged by Betts when it enacted the Code in 1994.
Like the Fourth District in McKenzie and the dissent in Ace Cash, we conclude
that it did not. When reading all of the statute’s terms together, we conclude that
the Legislature contemplated a check casher to be a person or entity who may be
compensated to provide currency in exchange for a check. We further conclude
that the Legislature did not authorize deferred presentment transactions such as
those involved herein until the passage of the Deferred Presentment Act in 2001.
Hence, the transactions involved herein are subject to Florida usury laws. Our
conclusion is based upon a plain reading of the language of the original version of
the Code enacted in 1994 and a similar reading of the 2001 version of the Code, as
well as the terms of Florida’s usury laws.
When construing the meaning of a statute, we must first look at its plain
language. Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005). Furthermore,
“[w]hen the language of the statute is clear and unambiguous and conveys a clear
and definite meaning, there is no occasion for resorting to the rules of statutory
interpretation and construction; the statute must be given its plain and obvious
meaning.” Id. (quoting Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)).
Historically, transactions involving the lending of money for a fee or at a
particular rate of interest have been governed by Florida’s usury laws. See §
687.02(1), Fla. Stat. (1993) (“All contracts for the payment of interest upon any
loan, advance of money, line of credit, or forbearance to enforce the collection of
any debt, or upon any obligation whatever, at a higher rate of interest than the
equivalent of 18 percent per annum simple interest are hereby declared usurious.”).
However, the Legislature from time to time has carved out exceptions to the usury
laws. See, e.g., § 687.031, Fla. Stat. (1993) (“Sections 687.02 and 687.03 shall not
be construed to repeal, modify or limit any or either of the special provisions of
existing statutory law creating exceptions to the general law governing interest and
usury and specifying the interest rates and charges which may be made pursuant to
such exceptions . . . .”). We find no exception to these laws in the enactment of the
Money Transmitters’ Code in 1994.
When the Money Transmitters’ Code was enacted in 1994, it defined a
“money transmitter” as “any person located in or doing business in this state who
acts as a payment instrument seller, foreign currency exchanger, check casher, or
funds transmitter.” § 560.103(10), Fla. Stat. (Supp. 1994) (emphasis added). The
Code defined “check casher” as “a person who, for compensation, sells currency in
exchange for payment instruments received, except travelers checks and foreigndrawn payment instruments.” § 560.103(3) (emphasis added). The term “sell”
was defined as “to sell, issue, provide, or deliver.” § 560.103(19). A “payment
instrument” meant “a check, draft, warrant, money order, travelers check or other
instrument or payment of money, whether or not negotiable.” § 560.103(14)
(emphasis added). Moreover, the term “cashing” was also defined in the Code as
“providing currency for payment instruments, except for travelers checks and
foreign-drawn payment instruments.” § 560.302(1). The Code’s language
explicitly provides, by the use of “in exchange for” and “for,” that the check for
cash transaction would be a contemporaneous one. See §§ 560.103(3), 560.302(1).
For example, the statute contemplates that a person may have to pay a fee for an
authorized entity to cash a check, and the entity would then give the person money
in exchange for the check. Therefore, we conclude the check cashing transaction
contemplated by the Code is a straightforward payment of money in exchange for a
check and not an authorization to process loans outside Florida’s usury laws.
As noted above, the Code was amended by the passage of the Deferred
Presentment Act in 2001. See § 560.401-.408, Fla. Stat. (2001). In the Deferred
Presentment Act, a “deferred presentment transaction” was defined as “providing
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currency or a payment instrument in exchange for a person’s check and agreeing to
hold that person’s check for a period of time prior to presentment, deposit, or
redemption.” § 560.402(6). Moreover, “rollover” was defined as “the termination
or extension of an existing deferred presentment agreement by the payment of any
additional fee and the continued holding of the check, or the substitution of a new
check drawn by the drawer pursuant to a new deferred presentment agreement.” §
560.402(8). Additionally, “termination of an existing deferred presentment
agreement” was defined as:
[T]he check that is the basis for an agreement is redeemed by the
drawer by payment in full in cash, or is deposited and the deferred
presentment provider has evidence that such check has cleared. A
verification of sufficient funds in the drawer’s account by the deferred
presentment provider shall not be sufficient evidence to deem the
existing deferred deposit transaction to be terminated.
Importantly, Part IV of chapter 560, as amended in 2001, imposes strict
requirements for deferred presentment transactions. Most relevant to the instant
case is section 560.404(14), which states, “No deferred presentment provider or its
affiliate may accept or hold an undated check or a check dated on a date other than
the date on which the deferred presentment provider agreed to hold the check and
signed the deferred presentment transaction agreement.” Additionally, section
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No deferred presentment provider or its affiliate may engage in the
rollover of any deferred presentment agreement. A deferred
presentment provider shall not redeem, extend, or otherwise
consolidate a deferred presentment agreement with the proceeds of
another deferred presentment transaction made by the same or an
affiliated deferred presentment provider.
Furthermore, section 560.404(19) provides:
A deferred presentment provider may not enter into a deferred
presentment transaction with a person who has an outstanding
deferred presentment transaction with that provider or with any other
deferred presentment provider, or with a person whose previous
deferred presentment transaction with that provider or with any other
provider has been terminated for less than 24 hours.
Like the Fourth District in McKenzie and Judge Griffin’s dissent in Ace Cash, we
conclude that the Legislature did not intend for deferred presentment transactions
to be covered under the Money Transmitters’ Code until it expressly added the
Deferred Presentment Act in 2001.
In fact, this reading of the plain language of the statute is well articulated in
Judge Griffin’s dissent in Ace Cash:
The fact that Chapter 560, which regulates check cashing operations,
does not expressly prohibit rollovers and deferred presentments, does
not mean that the usury laws are not violated by such devices. The
legislature is to be forgiven for not having the foresight to prohibit or
regulate the “uncashing” of a cashed check. Nor am I persuaded that
the passage of the “Deferred Presentment Act” in October 2001 was
intended by the legislature to confirm the prior legality of the practice.
Indeed, it appears the legislation undertook to regulate and limit these
schemes. Further, the statute appears to recognize that these
transactions are, in fact, loans.
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Ace Cash, 827 So. 2d at 299 (Griffin, J., dissenting). We conclude that if the
Legislature had intended to carve out such an important exception to the usury
laws in 1994, it would have expressly done so, as it did with the 2001 amendment.
Sometimes it may be appropriate to consider a subsequent amendment to
clarify original legislative intent of a statute if such amendment was enacted soon
after a controversy regarding the statute’s interpretation arose. Lowry v. Parole &
Prob. Comm’n, 473 So. 2d 1248, 1250 (Fla. 1985). However, the Fourth District
decided that it is inappropriate to use an amendment for this purpose when the
amendment was enacted seven years after the original statute. McKenzie, 879 So.
2d at 674; see also Parole Comm’n v. Cooper, 701 So. 2d 543, 544-45 (Fla. 1997)
(concluding that ten years is too long to be an affirmation of prior legislative
intent). We agree.
In this case, the Legislature enacted the 2001 version of the Code seven
years after the 1994 version. As with the ten-year gap in Cooper, we conclude that
seven years is too long to view the amendment as merely a clarification of
legislative intent. It is telling that nowhere within the original version of the Code
did the Legislature mention these types of transactions. Moreover, the usury laws,
which existed at the time the Code was enacted, have a general application to “[a]ll
contracts for the payment of interest upon any loan, advance of money, line of
credit, or forbearance to enforce the collection of any debt.” § 687.02, Fla. Stat.
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(1997). As a result, like the Fourth District and Judge Griffin, we conclude that the
deferred deposit transactions involved herein are not “check cashing” transactions
and are not governed by the Money Transmitters’ Code enacted in 1994. Instead,
these transactions are “contracts for the payment of interest upon any loan”4 and
subject to Florida’s usury laws.
Finally, we find it persuasive that courts in other states have held that
deferred presentment transactions are loans. See, e.g., Hamilton v. York, 987 F.
Supp. 953, 956 (E.D. Ky. 1997) (deciding that the deferred-repayment transactions
“were nothing more than interest bearing loans”); Austin v. Alabama Check
Cashers Ass’n, Nos. 1011907 & 1011930, 2005 WL 3082884, at *21 (Ala. Nov.
18, 2005) (concluding that deferred presentment transactions were loans subject to
the Alabama Small Loan Act); White v. Check Holders, Inc., 996 S.W. 2d 496,
500 (Ky. 1999) (holding that the legislature did not intend for deferred deposit
businesses to come under the law when it passed Kentucky Revised Statutes
section 368.100(2) to allow check cashing businesses to charge fees without
implicating usury laws).
The facts of the instant case are strikingly similar to those in White. In
1992, the Kentucky General Assembly enacted Kentucky Revised Statutes chapter
368, allowing check cashing businesses to charge a fee for cashing checks without
4. At oral argument, McKenzie’s counsel conceded that these transactions
were “a species of loans” and “a form of a loan.”
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implicating Kentucky’s usury laws. White, 996 S.W. 2d at 497. The transactions
in that case involved the use of an order instrument “payable on demand and drawn
on a bank” to evidence the promise of a debt due at a later time. Id. In White, the
court addressed the following issue:
When a check cashing company licensed under KRS 368 et seq.
accepts and defers deposit on a check pursuant to an agreement with
the maker of the check, is the service fee charged by the check
cashing company a “service fee” and not “interest” under KRS
368.100(2), or is the fee “interest” which is subject to the usury laws
and disclosure provisions in KRS Chapter 360?
Id. The Kentucky Supreme Court held that the General Assembly did not intend
for section 368.100(2) to encompass short-term loans based upon deferred deposit
transactions as well as check cashing from current funds. Id. at 499. The Court
decided that deferred deposit businesses did not come under the Code. Id.
Furthermore, the Court noted that if the 1992 Act had applied to deferred deposit
transactions, there would have been no need for the General Assembly to have
amend the statute in 1998 to include these types of transactions. Id.
In conclusion, we hold that the original version of the Code did not include
deferred presentment transactions. Therefore, at the time the transactions between
Betts and NCA took place, the legality of such transactions was governed by
Florida’s usury laws. Accordingly, we approve the Fourth District’s essential
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holding in McKenzie on this issue, and disapprove the Fifth’s District decision in
Ace Cash. We decline to consider other issues raised by the parties.
It is so ordered.
WELLS, LEWIS, QUINCE, and BELL, JJ., concur.
CANTERO, J., concurs in part and dissents in part with an opinion.
PARIENTE, C.J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANTERO, J., concurring in part and dissenting in part.
Although the majority does not distinguish between pure deferred
presentment transactions and rollover transactions, I see great differences between
them. More importantly, so did the Department of Banking and Finance—the
agency charged with implementing the statute we interpret. As I explain in more
detail below, a deferred presentment transaction is one in which the check casher
agrees not to “present” the customer’s check to the bank until a later date; a
rollover transaction is one in which the customer returns––sometimes more than
once––and pays another fee to extend the period of deferment, usually by
exchanging the previously “cashed” check for a new one. I agree with the majority
that rollover transactions are essentially loans, and therefore are subject to the
usury statute (this, incidentally, was also the Department’s conclusion). I disagree,
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however, to the extent the majority holds that pure deferred presentment
transactions are loans as well. Consistent with our many precedents deferring to an
implementing agency’s reasonable interpretation of a statute, I would defer to the
Department, which concluded that the term “check cashing” includes deferred
presentment transactions unless they involve a rollover for an additional fee. This
interpretation reasonably clarifies a statutory ambiguity and falls squarely within
the Department’s area of expertise.
I. The Statutory Ambiguity
The issue in this case is whether the term “check cashing” in the Money
Transmitters’ Code––chapter 560, Florida Statutes (1997)––encompasses deferred
presentment transactions. In a normal check-cashing transaction, the customer
presents the check-cashing company with a check (sometimes a paycheck received
that day), and in exchange receives cash. The majority finds nothing wrong with
such transactions. Deferred presentment transactions are check-cashing
transactions with a twist: like normal transactions, the customer receives cash in
exchange for a check, but instead of having authority to cash the check
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immediately, the company, for a fee, agrees not to present the check to the bank for
a specified period of time.5
Some deferred presentment transactions present yet another wrinkle: the
customer enters into a so-called “rollover” transaction. These come in three main
types: (1) the customer pays an additional fee in cash, and the check casher agrees
to defer presentment for an even longer period; (2) the customer pays an additional
fee and replaces the first check with a new one, presentment of which is also
deferred; or (3) the customer redeems the earlier check with cash and then
promptly writes a new check for deferred presentment, in exchange for which the
cash––minus an additional fee––is returned. As scholars have noted, all of these
rollovers achieve the same result: “a continuous flow of interest-only payments at
very short intervals that never reduces the principal.” Lynn Drysdale & Kathleen
E. Keest, The Two-Tiered Consumer Financial Services Marketplace: The Fringe
Banking System and its Challenge to Current Thinking About the Role of Usury
Laws in Today’s Society, 51 S.C. L. Rev. 589, 601 (2000).6
5. These deferred presentment transactions are sometimes called “payday
loans,” “cash advance loans,” “delayed deposit transactions,” or “postdated check
loans,” among other things.
6. The petitioner in this case stopped engaging in rollover transactions (at
least the first and second types) in 1998, when the Department expressly stated in a
letter of advice that such transactions constituted usurious loans.
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Before 2001, when the Legislature passed the Deferred Presentment Act
specifically addressing deferred presentment transactions, see ch. 2001-119, § 13,
Laws of Fla., the Money Transmitters’ Code did not mention them. It merely
discussed check cashing in general, which it defined as “providing currency for
payment instruments, except for travelers checks and foreign-drawn payment
instruments.” § 560.302(1), Fla. Stat. (1997). Thus, if deferred presentment
transactions qualified as check cashing, they were subject to the Code’s fee
structure. See id. §§ 560.301-.310. If not, then they were effectively loans subject
to Florida’s longstanding usury laws. See id. § 687.02(1) (“All contracts for the
payment of interest upon any loan, advance of money, line of credit, or forbearance
to enforce the collection of any debt, or upon any obligation whatever, at a higher
rate of interest than the equivalent of 18 percent per annum simple interest are
hereby declared usurious.”).7
The majority concludes from the plain language of the Code that all deferred
presentment transactions––whether completed or rolled over––fall outside the
definition of “check cashing.” Majority op. at 12, 15. According to the majority,
they are simply disguised loans that must comply with the usury laws. Id. at 15. I
7. As one district court has noted, “[t]he usury statutes were in existence at
the time Chapter 560 was created and the legislature must be presumed to have
been aware of them when it enacted legislation allowing the transactions to take
place.” Fastfunding the Co. v. Betts, 852 So. 2d 353, 355 (Fla. 5th DCA 2003).
Thus, a transaction that complies with the Code “should not be deemed to be in
violation of Florida’s usury laws.” Id.
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beg to differ. I do not agree that all deferred payment transactions are the same.
To the contrary, as I explain below, the agency charged with implementing the
Code has reasonably interpreted it as including pure deferred presentment
transactions but excluding rollovers. I would defer to the agency’s interpretation.
II. The Agency’s Interpretation
The agency with “general regulatory powers” under the Money
Transmitters’ Code is the Department of Banking and Finance, which has express
statutory authority “to issue and publish rules . . . to interpret and implement the
provisions of the code,” as well as the “discretion to effectuate the purposes,
policies, and provisions of the code.” § 560.105(3), Fla. Stat. (1997). This
authority, however, is limited. The Department may exercise “[o]nly such
rulemaking power and administrative discretion . . . as is necessary, in order that
the supervision and regulation of money transmitters may be flexible and readily
responsive to changes in economic conditions, in technology, and in money
transmitter practices.” Id. § 560.102(2)(h).
On many occasions, the Department exercised its authority by evaluating
whether the Code authorized deferred presentment transactions. First, in February
1995, the Department wrote to Florida’s check-cashing association stating that it
saw “no reason to object” to deferred presentment transactions, provided that they
adhered to the Code’s fee limitations for check-cashing transactions. See Letter
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from Jeffrey D. Jones, Asst. Gen. Counsel, Office of Comptroller, to Larry F.
Lang, President, Fla. Check Cashiers Ass’n, Inc., at 1 (Feb. 24, 1995). The letter
cautioned, however, that it was “not a rule, declaratory statement or final order,”
but rather an informal opinion by which the Department would not consider itself
In September 1997, the Department promulgated a formal rule addressing
deferred presentment transactions. The rule provided that “[a] check casher may
accept a postdated check, subject to the fees established in Section 560.309(4),
F.S.” Fla. Admin. Code R. 3C-560.803 (1997). As a logical corollary, the rule
also allowed the check casher to wait until the specified date to cash the check.
This is because the customer has the ability, by notifying the bank in writing of the
postdated check, to prevent it from being cashed early. § 655.86, Fla. Stat. (1997).
Unless the Department intended for check cashers to accept postdated checks
without ever cashing them, which seems absurd, it must have intended to allow
deferred presentment of postdated checks.
The majority dismisses the rule because none of the respondent’s
transactions involved a postdated check; all of her checks were presently dated.
But that is too formalist a reading of the rule. No functional difference exists
between a postdated check and a presently dated check whose presentment is
deferred. In one case, the agreement to defer is noted on the check itself; in the
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other, it is contained in a separate document. The agreements are effectively the
same. Thus, the most logical reading of the Department’s rule is that check
cashing encompasses transactions in which the check casher waits for an agreedupon period before cashing the customer’s check. See Betts v. McKenzie Check
Advance of Fla., LLC, 879 So. 2d 667, 671 (Fla. 4th DCA 2004) (stating that the
rule “expressly approved deferred presentment transactions subject to certain
Even if the rule did leave some ambiguity, however, it was clarified a few
months later. In a letter of advice to Florida check cashers in May 1998, the
Department explained, as the rule implied, that deferred presentment transactions
were subject to the Code’s check-cashing fee structure. But the Department
cautioned that when a deferred presentment transaction is rolled over, extended, or
renewed for an additional fee, the additional fee may constitute excessive interest
under the usury laws. See Letter from Wm. Douglas Johnson, Asst. Dir., Div. of
Banking, Dep’t of Banking and Fin., to Billy Webster, President/CEO, Advance
Am. Cash Advance Ctrs. of Fla., Inc., at 1 (May 5, 1998). In other words, a
deferred presentment transaction only counts as check cashing when it is
consummated by the actual cashing of the check or cash redemption.
Two years later, the Department asked the Attorney General for his opinion
on the matter. We have long recognized that “[a]lthough an opinion of the
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Attorney General is not binding on a court, it is entitled to careful consideration
and generally should be regarded as highly persuasive.” State v. Family Bank of
Hallandale, 623 So. 2d 474, 478 (Fla. 1993). Reaching the same conclusion as the
Department, the Attorney General opined that a check casher registered under the
Code “may cash personal checks for the fees prescribed in [the Code] without
violating the usury laws only if such transactions are concluded and are not
extended, renewed or continued in any manner with the imposition of additional
fees.” Op. Atty. Gen. Fla. 00-26 (2000).
Finally, in April 2001, the respondent challenged the Department’s rule in an
administrative proceeding. The administrative law judge dismissed her petition,
explaining that nothing in the Code “prohibits the check casher from holding the
customer’s check for an agreed-upon period of time.” Betts v. Dep’t of Banking &
Fin., No. 01-1445RX at 27 (Fla. Div. Admin. Hearings Sept. 7, 2001). While
acknowledging that the Department’s rule “provides more details than the statute,”
the judge concluded that it “does not enlarge, modify or contravene the language it
seeks to interpret.” Id. at 30. Accordingly, the judge upheld the rule as a
reasonable implementation of the statute. The respondent did not appeal. Shortly
thereafter, in light of the 2001 amendments to the Code, the rule was repealed.8
8. Before the statutory amendment, the Department was considering a
proposed rule that would have expressly stated that “[a]ny agreement to extend,
renew or continue a check cashing transaction in any manner, including the
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In summary, the Department has consistently interpreted the Code’s term
“check cashing” as including deferred presentment transactions unless they involve
a rollover, extension, or renewal for an additional fee. This policy was stated
informally in 1995 (one year after the Code’s enactment), was formalized into a
rule in 1997, was further explained in a formal letter in 1998, was embraced by the
Attorney General in 2000, and finally was upheld by an administrative law judge
in 2001, just before the Code was amended. The interpretations were consistent.
Some of the transactions in this case occurred in 1997, the year before the
Department made its position absolutely clear in the formal letter. But the letter
did not represent a change in Department policy. It merely confirmed the
Department’s consistent position, as already expressed (less clearly) in the
informal opinion and the formal rule.
We have not required that, to be entitled to deference, an agency’s statutory
interpretation be exhaustively articulated in a formal rule. To the contrary, we
have deferred to a rule supported by an affidavit from an agency official who
attested after the fact that the Department of Revenue had “consistently maintained
[a] policy” since the inception of a given tax. Dep’t of Revenue v. First Union
substitution of a new check drawn by the drawer, if coupled with the imposition of
any fees, compensation, or any other benefit, is outside the scope of [the Code].”
27 Fla. Admin. Weekly 651-52 (Feb. 16, 2001). In light of the statutory
amendments, the proposal was withdrawn. 27 Fla. Admin. Weekly 2841 (June 15,
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Nat’l Bank of Fla., 513 So. 2d 114, 119 (Fla. 1987). Thus, when we have reliable
evidence that the implementing agency maintained a consistent interpretation of its
statute during the time the statute was in effect––as is the case here––that
interpretation should be followed if it meets the requirements for administrative
deference. I now address that issue.
III. The Doctrine of Administrative Deference
We have long recognized that “the contemporaneous administrative
construction of the enactment by those charged with its enforcement and
interpretation is entitled to great weight, and courts generally will not depart from
such construction unless it is clearly erroneous or unauthorized.” Gay v. Canada
Dry Bottling Co. of Fla., 59 So. 2d 788, 790 (Fla. 1952) (quoting Coca-Cola Co. v.
State Bd. of Equalization, 156 P.2d 1, 2 (Cal. 1945)). Stated positively, this
doctrine means that “a reviewing court must defer to an agency’s interpretation of
an operable statute as long as that interpretation is consistent with legislative intent
and is supported by substantial, competent evidence.” Pub. Employees Relations
Comm’n v. Dade County Police Benevolent Ass’n, 467 So. 2d 987, 989 (Fla.
Courts defer to the implementing agency out of respect for the institutional
competence and expertise of agencies charged with implementing legislation.
Agencies have more expertise about matters within their jurisdiction than courts,
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which consider a wide variety of issues. While the courts always remain the final
authority on the interpretation of statutes––an authority that, under the separation
of powers in the Florida Constitution, no Legislature may remove––we certainly
can benefit from an agency’s unique combination of technical knowledge and
practical experience. The Legislature, by authorizing an agency to implement a
statute, encourages us to “accord considerable persuasive force” to the agency’s
judgments. State ex rel. Szabo Food Servs., Inc. of N.C. v. Dickinson, 286 So. 2d
529, 531 (Fla. 1973). We have done just that. Under our precedents, “deference
usually will be accorded an administrative agency’s interpretation of matters
entrusted by statute to its discretion or expertise.” Palm Harbor Special Fire
Control Dist. v. Kelly, 516 So. 2d 249, 250 (Fla. 1987) (citing Pub. Employees,
467 So. 2d at 987, and Daniel v. Fla. State Tpk. Auth., 213 So. 2d 585 (Fla.
Although we occasionally depart from agency interpretations, it is only “for
the most cogent reasons.” Fidelity Constr. Co. v. Arthur J. Collins & Son, Inc.,
130 So. 2d 612, 613 (Fla. 1961) (citing Gay, 59 So. 2d at 790). We do not defer to
9. Florida is by no means unique in deferring to agency interpretations of a
statute the agency is charged with implementing. Both the federal courts, see
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and
the vast majority of states share these principles. See, e.g., Manchester Sch. Dist.
v. Crisman, 306 F.3d 1, 9 (1st Cir. 2002) (noting that “most states . . . give some
deference to the reasonable interpretation of a state statute by the state
administrative agency charged with the responsibility of enforcing that statute”).
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an agency’s interpretation that attempts “to enlarge, modify, or contravene a
statute.” Campus Commc’ns, Inc. v. Dep’t of Revenue, 473 So. 2d 1290, 1296
(Fla. 1985) (internal quotation marks omitted). The Administrative Procedure Act,
not to mention the separation of powers, prohibits such actions. See
§ 120.52(8)(c), Fla. Stat. (2005) (stating that a rule is invalid if it “enlarges,
modifies, or contravenes the specific provisions of law implemented”). We also do
not defer to an agency when it “exceeds its authority” by “act[ing] outside the
scope of its powers and jurisdiction.” Level 3 Commc’ns, LLC v. Jacobs, 841 So.
2d 447, 450 (Fla. 2003). Only the agency charged with implementing the statute is
entitled to our deference, and only when acting as the Legislature authorized it to
But for these narrow exceptions, however, we defer to the implementing
agency’s interpretation of the statute. The majority gives no hint that these
exceptional circumstances are present in this case. As I explain below, they are
IV. Deferring to the Agency in this Case
As I mentioned, the Department of Banking and Finance is the agency
charged with enforcing and interpreting the Money Transmitters’ Code. The
Department interpreted the Code’s term “check cashing” to include some, but not
all, deferred presentment transactions. Under the doctrine of administrative
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deference, we must defer to this interpretation as long as it is within the scope of
the Department’s authority and is consistent with the statute. I address each
The Department’s interpretation falls within its scope of authority to
implement the Code. The statute provides that the Department may exercise
“[o]nly such rulemaking power and administrative discretion . . . as is necessary, in
order that the supervision and regulation of money transmitters may be flexible and
readily responsive to changes in economic conditions, in technology, and in money
transmitter practices.” § 560.102(2)(h), Fla. Stat. (1997). Here, the Department’s
interpretation surely meets that test of necessity. After the Code was enacted, the
check-cashing industry asked the Department to explain whether check cashing
included deferred presentment transactions. These transactions were very similar
to ordinary check cashing, but involved the additional element of delay in cashing
the check. For the regulation of money transmitters to remain “flexible and readily
responsive to changes . . . in money transmitter practices,” id., the Department
absolutely needed to determine whether deferred presentment transactions
qualified as check cashing. These were precisely the circumstances in which the
Legislature intended for the Department to exercise its authority.
The other factor in deciding whether to defer to the Department is whether
its interpretation enlarged, modified, or contravened the statute. It did none of
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those things. Rather, it reasonably clarified a statutory ambiguity. The Code
contained only general references to check cashing, which it defined as “providing
currency for payment instruments.” Id. § 560.302(1). At the time, the Code did
not mention deferred presentment transactions. Such transactions, however,
possess all the attributes of check cashing mentioned in the Code: the customer
receives currency in exchange for a payment instrument (albeit one that will not be
presented until a later date). The Department, faced with this ambiguity,
interpreted check cashing to include deferred presentment transactions, except if
they result in a rollover for an additional fee.
Where a statute is silent, we have traditionally allowed agencies to
determine how a general statutory directive should be applied to specific
circumstances. As we explained in General Telephone Co. of Florida v. Marks,
500 So. 2d 142 (Fla. 1986): “The legislature cannot be expected to foresee and
make provision for every possible type of [situation]. . . . Some discretion must be
given to regulatory bodies to promulgate the detailed rules that expand upon and
implement legislative directives.” Id. at 145. In Marks, the Legislature had stated
in general terms that the agency could make a certain calculation. We explained
that “[u]nless there is something else directly contrary in the statute itself, we must
assume the legislature intended to grant the commission the discretion to determine
what factors should be used in calculating [the figure].” Id. We have continued to
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apply this logic in more recent cases. See, e.g., Level 3 Commc’ns, 841 So. 2d at
453-54 (quoting Marks). We should apply it in this case as well, where the
Department applied a general statutory provision to specific facts.
While not the only plausible reading of the Code, the Department’s
interpretation is the most natural one. Check cashing is designed to place currency
in the customer’s hands faster than otherwise feasible, in exchange for a fee that
compensates the check casher for its efforts and assumption of risk. See Michael
S. Barr, Banking the Poor, 21 Yale J. on Reg. 121, 142, 145 (2004) (explaining
that check cashers mostly accept “low-risk payroll or government benefit checks”
from customers who lack a bank account or who “find that they lack sufficient
liquidity to wait the two-to-three days for their bank to clear access to funds from a
deposited check”). In an ordinary check-cashing transaction, the check casher may
present the check as soon as possible. But nothing in the statute dictates when the
check must be cashed or prohibits the parties from negotiating on that point. A
deferred presentment transaction merely lengthens the time between the customer’s
receipt of currency and the company’s cashing of the check. As long as the check
casher ultimately presents the check to a bank at the end of the deferral period, or
at least receives full payment in cash from the customer, the transaction remains so
similar to ordinary check cashing that the most sensible reading of the statute is to
treat them the same.
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When a customer instead returns to the check casher and rolls over the initial
transaction, paying another fee to extend the period for actual payment, the
transaction looks less like check cashing and more like a traditional loan. The
Department sensibly concluded that rollover transactions––however styled or
disguised––go beyond mere check cashing and cannot be squeezed within the
Code. Instead, they must adhere to the interest restrictions established by the usury
statute. This distinction between completed transactions and rollovers is so
persuasive that I would adopt it even on de novo review. That it comes directly
from the statute’s implementing agency clinches the matter. At the very least, the
Department’s interpretation deserves our deference. To the extent the majority
refuses to defer, I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions
Fourth District - Case No. 4D03-3268
(Palm Beach County)
Virginia B. Townes of Akerman, Senterfitt, Orlando, Florida and Mitchell Berger
of Berger Singerman, Fort Lauderdale, Florida,
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Christopher C. Casper of James Hoyer, Newcomer and Smiljanich, P.A., Tampa,
Florida, E. Clayton Yates of Yates and Mancini, LLC, Fort Pierce, Florida and
Richard A. Fisher, Cleveland, Tennessee,
Warren H. Husband and James R. Daughton, Jr. of Meetz, Hauser, Husband and
Daughton, P.A., on behalf of the Community Financial Services Association of
America and the Financial Service Centers of Florida, Inc.; and Lynn Drysdale of
Jacksonville Area Legal Aid, Inc., Jacksonville, Florida and Deborah Zuckerman
of AARP Foundation, Washington, D.C., on behalf of AARP, National
Association of Consumer Advocates and National Consumer Law Center,
for Amici Curiae
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