Dana's Railroad Supply v. Bondi

Also called Dana's Railroad Supply v. Attorney General Florida, 807 F.3d 1235

The 2015 Eleventh Circuit decision holding Florida's credit card surcharge ban unconstitutional under the First Amendment.

What it is

Dana's Railroad Supply v. Attorney General, Florida, 807 F.3d 1235, was decided by the United States Court of Appeals for the Eleventh Circuit on November 4, 2015. Florida merchants challenged section 501.0117, the state's ban on credit card surcharges. The court's reasoning is the part worth understanding, because it explains why the ban failed and what it did not decide. Florida permitted a merchant to offer a cash discount but prohibited a credit card surcharge. Economically those are the same arrangement: two prices, one lower for cash. The only difference is which price is called the regular one and what the difference is labeled. The Eleventh Circuit concluded that a law drawing that distinction regulates speech rather than conduct, and struck it down under the First Amendment. The practical result is that Florida's surcharge ban is not enforced, and the Florida Attorney General's consumer guidance acknowledges that federal courts held the law unconstitutional while emphasizing that surcharges must be disclosed before purchase. What the decision did not do is repeal the statute, authorize any particular pricing practice, or displace network rules. Surcharging in Florida remains governed by Visa and Mastercard rules, by disclosure obligations, and by Florida's consumer protection statute.

Why it matters to your business

This case is why a Florida business can surcharge at all, and understanding it lets you evaluate what you are told. A provider who says Florida bans surcharging is a decade out of date. A provider who says surcharging is simply legal in Florida is overstating a constitutional holding on an unrepealed criminal statute. The practical instruction the case leaves behind is about disclosure. The reason the distinction mattered was labeling and customer communication, and that is exactly where Florida enforcement now lives, through its consumer protection statute. This is education, not legal advice. This is constitutional litigation about a criminal statute; a Florida attorney should review any program built on it.

Where it gets contested

The surcharge and cash discount distinction has divided courts precisely because it is a labeling problem dressed as an economic one. The Eleventh Circuit found it speech. Other circuits reached different conclusions on similar state laws before the Supreme Court weighed in on New York's version in Expressions Hair Design in 2017, holding that the law regulated speech and remanding for further analysis rather than resolving the ultimate question everywhere. The consequence is a national map that is untidy. Some state bans have been struck down, some remain contested, some remain on the books unenforced, and some states have replaced bans with disclosure requirements. Anyone presenting a clean fifty-state table should be treated with caution, including tables published by payment companies. What remains unresolved in Florida is legislative rather than judicial. The statute has never been repealed, and a future legislature could enact a disclosure-based rule instead. Nothing in Dana's Railroad Supply forecloses a differently drafted law.

How to check it yourself

Read the Eleventh Circuit opinion yourself through the citation, then read the Florida Attorney General's surcharge page. If a vendor's claims about Florida surcharging conflict with either document, ask them to reconcile it in writing.

Receipts

Claims above that are checkable, with where to check them. Published so you do not have to take anyone's word for it.

Eleventh Circuit decision holding Florida's credit card surcharge ban unconstitutional, decided November 4, 2015
law.justia.com ↗
Analysis of the decision and its reasoning that the ban regulated speech rather than conduct
bipc.com ↗
The Florida Attorney General acknowledges the law was held unconstitutional and requires disclosure before purchase
myfloridalegal.com ↗
Text of the statute that was challenged
flsenate.gov ↗