The US District Court for the District of Rhode Island has upheld a Rhode Island statute that prohibits insurance adjusters, disasters restorers, and contractors from entering onto fire damaged premises until twenty-four hours after the fire marshal or fire department has released the premises back to the owner.
The statue, RI General Laws § 23·28.2-11(c), was challenged by twelve individuals and companies who serve as public adjusters and/or disaster restoration services on First Amendment grounds. They sued the State Fire Marshal alleging that the law deprives them of their right to solicit business for an indeterminable amount of time despite saying twenty-four hours because they have no way of determining when the property has been released back to the owners.
The statue reads as follows:
- RIGL §23·28.2-11
- (c) The state fire marshal, and/or any of the deputy state fire marshals or assistant state fire marshals, and/or municipal officials, including, without limitation, police, fire, and building officials, shall prohibit any and all insurance adjusters, contractors, and restoration companies from engaging in any solicitation or inspection or any physical presence on the premises under investigation until twenty-four (24) hours after either the municipal fire department and/or the state fire marshal, deputy state fire marshal, or assistant state fire marshal releases control of the premises back to its legal owner(s) or occupant(s), unless the insurance adjuster, contractor, or restoration company is accompanied by, or acting with, permission of the premises’ legal owner.
- (d) Any insurance adjuster, contractor, or restoration company in violation of the provisions of subsection (c) shall be subject to a civil penalty of one thousand dollars ($1,000) for each violation and may be subject to revocation of the appropriate professional license or registration.
US District Court Judge John J. McConnell, outlined the adjusters/restorers claims as follows:
- According to the Plaintiffs, the phrase “any solicitation” prohibits them from any type of business solicitation – in-person, telephonically, or by mail-thus violating their constitutional right to speech and association.
- The Plaintiffs next allege that although the Statute says “twenty-four (24) hours” this period is indeterminable because the Plaintiffs are not privy to when the fire marshal will return the property to its legal owner.
- The Plaintiffs’ interpretation of the Statute’s phrase “engaging in any solicitation” is that it is a stand-alone prohibition that bars them from any types of solicitation of fire victims until twenty-four hours after an investigation.
In a grammatically interesting ruling Judge McConnell rejected these allegations and granted the Fire Marshal’s motion to dismiss. As explained in the ruling:
- Defendants do an excellent job of educating us on the differences between the “rule of the last antecedent” and the “series qualifier principle.”
- At the risk of trading the lawyer’s pen for the grammarian’s red line, it appears that Plaintiffs’ misunderstanding stems from the difference between the rule of the last antecedent and the series-qualifier principle.
- These two grammatical rules are best understood through example.
- Suppose a friend asked for: “a song, album, or live recording by the Beatles.”
- Under the rule of the last antecedent, any song or any album by any artist will do, only the live recording needs to be by the Beatles.
- Under the series-qualifier principle, the friend has impeccable taste, as the friend is only interested in songs by the Beatles, albums by the Beatles, and live-recordings by the Beatles.
- Put another way, the rule of the last antecedent takes the last modifying phrase … and only applies it to the last item in the list.
- The series qualifier principle reads the last modifying phrase to apply to all items in the list.
- The language of the Statute is certainly open to reasonable interpretation.
- Does the phrase “on the premises” in the phrase “engaging in any solicitation or inspection or any physical presence on the premises” refer to solicitations, inspections, and physical presence, or does it only refer to “physical presence?”
- Under the first interpretation (advanced by the Plaintiffs), all acts of solicitation or inspection, regardless of where they take place, are included.
- Under the second interpretation, the only prohibited acts are ones that take place on the premises, thus allowing the Plaintiffs to solicit and inspect from any place (e.g., by telephone, mail) other than physically on the premises.
- The Court is convinced that the second interpretation, using the “series-qualifier principle,” is the correct interpretation and thus holds that R.I. Gen. Laws § 23·28.2·11 only prohibits solicitation on the premises during an investigation.
- It does not prohibit other types of non-premises solicitations, like phone, email, or mail.
- And it does not prevent on-the-premise solicitations if the person is invited onto the property by the homeowner.
- This is the right interpretation because it offers the most logical reading of the plain language of the Statute, while following the State’s interpretation of the Statute, and avoiding constitutional transgressions.
Here is a copy of the ruling: