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Cahaly v. LaRosa

United States District Court, D. South Carolina, Greenville Division

June 10, 2014

Robert C. Cahaly, Plaintiff,
v.
Paul C. LaRosa, III, Reginald I. Lloyd, South Carolina Law Enforcement Division, Defendants

Page 818

For Robert C Cahaly, Plaintiff: Samuel Darryl Harms, III, LEAD ATTORNEY, Harms Law Firm, Greenville, SC.

For Paul C LaRosa, III, South Carolina Law Enforcement Division, Reginald I Lloyd, Defendants: Kenneth Paul Woodington, LEAD ATTORNEY, Davidson Morrison and Lindemann, Columbia, SC; William Henry Davidson, II, LEAD ATTORNEY, Davidson and Lindemann, Columbia, SC.

Page 819

ORDER AND OPINION

J. Michelle Childs, United States District Court Judge.

Plaintiff Robert C. Cahaly is a Republican political consultant who has engaged and seeks to continue to engage in political speech and political campaigns in the state of South Carolina. (ECF No. 1-2 at 8.) Plaintiff filed the instant action on October 31, 2012, in South Carolina state court claiming pursuant to 42 U.S.C. § 1983 that provisions of South Carolina state law enforced by Defendants Paul C. LaRosa, III, Reginald I. Lloyd, and South Carolina Law Enforcement Division (" SLED" ) (collectively referred to as " Defendants" ) violated his First Amendment right of free speech. (ECF No. 1-2.) Plaintiff requested declaratory relief as well as an

Page 820

injunction to enjoin Defendants from enforcing the relevant South Carolina Code sections. ( Id. at 18-19.) Plaintiff also alleged state law claims of false imprisonment and malicious prosecution. ( Id. at 1 9-21.)

Defendants filed a notice of removal on March 22, 2013. (ECF No. 1.) This matter is before the court on Plaintiff's Motion for Preliminary Injunction, or in the Alternative, for Partial Summary Judgment (ECF No. 14), Defendants' Motion for Summary Judgment (ECF No. 17), and Plaintiff's Motion to Expedite the Decision (ECF No. 25). For the reasons set forth below, the court GRANTS Plaintiff's motion for partial summary judgment and thereby DENIES AS MOOT Plaintiff's motion in the alternative for a preliminary injunction and Plaintiff's motion to expedite the court's decision. The court further GRANTS IN PART and DENIES IN PART Defendants' motion for summary judgment.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

South Carolina Code § 16-17-446 (2003) which incorporates certain components of § 16-17-445 [1] (2003 & Supp. 2013) is at the heart of the analysis of Plaintiff's constitutional claims. Therefore, the pertinent provisions are identified herein. Section 16-17-446, entitled " Regulation of automatically dialed announcing device (ADAD)," states as follows:

(A) Adad means an automatically dialed announcing device which delivers a recorded message without assistance by a live operator for the purpose of making an unsolicited consumer telephone call as defined in Section 16-17-445(A)(3).[2] Adad calls include automatically announced calls of a political nature including, but not limited to, calls relating to political campaigns.
(B) Adad calls are prohibited except:
(1) in response to an express request of the person called;
(2) when primarily connected with an existing debt or contract, payment or performance of which has not been completed at the time of the call;
(3) in response to a person with whom the telephone solicitor has an existing business relationship or has had a previous business relationship.
(C) Adad calls which are not prohibited under subsection (B):
(1) are subject to Section 16-17-445(B)(1), (2), and (3);
(2) shall disconnect immediately when the called party hangs up;
(3) are prohibited after seven p.m. or before eight a.m.;
(4) may not ring at hospitals, police stations, fire departments, nursing homes, or vacation rental units.
(D) A person who violates this section, upon conviction, must be punished as provided in Section 16-17-445(F).

Page 821

S.C. Code Ann. § 16-17-446 (emphasis added). Section 16-17-445 is entitled " Regulation of unsolicited consumer telephone calls" and states, in relevant parts:

(A) As used in this section:...
(4) " Unsolicited consumer telephone call" means a consumer telephone call other than a call made:
(a) in response to an express request of the person called;
(b) primarily in connection with an existing debt or contract, payment, or performance of which has not been completed at the time of the call; or
(c) to a person with whom the telephone solicitor has an existing business relationship or had a previous business relationship....
(B) A telephone solicitor who makes an unsolicited consumer telephone call must disclose promptly and in a clear conspicuous manner to the person receiving the call, the following information:
(1) the identity of the seller;
(2) that the purpose of the call is to sell goods or services;
(3) the nature of the goods or services; ...
(F) The department [3] shall investigate any complaints received concerning violations of this section. If the department has reason to believe that there has been a violation of this section, it may request a contested case hearing before the Administrative Law Court to impose a civil penalty...The department may also bring a civil action in the Court of Common Pleas seeking other relief, including injunctive relief, as the court considers appropriate against the telephone solicitor. In addition, a person who violates provisions of this section is guilty of a misdemeanor and, upon conviction for a first or second offense, must be fined not more than two ...

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