Shoplifting / Retail Theft
Tampa Retail Theft / Shoplifting Attorney
If you were arrested for petit theft, petty theft, retail theft, or shoplifting in the Tampa Bay Area, including Hillsborough County, Pinellas County, Manatee County, Sarasota County, Pasco County or Polk County, contact an experienced Tampa Theft Attorney to discuss your case. The criminal offense of shoplifting is a common theft crime in Florida that involves the theft of merchandise offered for sale from a retail establishment.
A conviction for even a misdemeanor offense under Florida law can mean that for the rest of your life every time you fill out a job application you will have to disclose that you were convicted of a "crime of dishonesty." The arrest and conviction for the charge can have serious consequences to your reputation, employment opportunities, and professional licenses.
In Florida, shoplifting is considered a "crime of dishonesty." It is a criminal offense that comes with criminal penalties. The common offense of shoplifting involves the theft of merchandise offered for sale by a retail establishment.
The legal term for shoplifting is "petty theft" when the value of the property is less than $300.00. In order to prove the offense of shoplifting or petty theft, the prosecutor must prove that you intended to take something that didn't belong to you from a store without paying or it, and that you did take the item or attempted to take the item out of the store. Shoplifting schemes can include concealing merchandise, switching labels, or returning merchandise that was stolen.
Evidence Use to Prove Shoplifting or Retail Theft Cases
If you have been charged with Shoplifting, the prosecutor will typically look for the following types of evidence to prosecute the case:
- Testimony from Loss Prevention Employees of the Retail Establishment;
- Testimony of Other Customers of the Retail Establishment;
- Store Video Camera; and
- Statements or Admissions Made by the Accused.
Elements of the offense commonly alleged:
- The person accused of shoplifting was seen selecting the merchandise (the shoplifter did not enter the retail establishment with the items already in hand);
- The person accused of shoplifting took the items into his possession;
- The person accused of shoplifting concealed the items or attempted to concel the items;
- The person accused of shoplifting exited the store, or attempted to exit the store without paying for the items.
False Allegations of Shoplifting
Organized Shoplifting or Retail Theft Cases
Retail establishments report that the number of shoplifting or retail theft cases as a percentage of all retail sales has remained the same over the past ten years, although there has been a steady increase in organized retail theft, which includes shoplifting (estimated to be more than 32% of the total loss in 2006) and employee theft (estimated to be 47% of the total loss in 2006).
Organized theft from retail establishments commonly includes the following:
- Store employees working with friends posing as customers to receive refunds on stolen items;
- Store employees working with friends to steal items during delivery;
- Duplicating gift cards using electronic devices to defraud the store; and
- Stealing items in the store and then selling them on the internet.
Although the vast majority of retail losses come from organized theft cases, many people arrested for shoplifting are not part of any organized fraud conspiracy. Many people arrested for shoplifting are not working with anyone else to commit the crime and have no criminal history at all.
Diversion Programs May Be Available for the First Arrest
Any accusation for retail theft, petty theft, petit theft or shoplifting is serious. However, most counties, including Hillsborough County, Pinellas County, Polk County, and Pasco County have certain "diversion" programs for a first arrest. These programs are administered by the State Attorney's Office to move or divert certain cases away from the court.
If you agree to enter a diversion program, you must complete certain conditions, including paying costs, community service and potentially a shoplifting prevention class. You can be disqualified from the diversion program if the alleged victim in the case (the retail establishment) is opposed to your case being diverted away from a disposition in court, or if you have anything on your record that would disqualify you from the program (including a conviction for any offense or a previous diversion program).
An attorney can discuss with you eligibility rules for your particular county. Even if you have been told that you do not qualify for diversion program, contact an attorney who can attempt to negotiate your acceptance into the program even if you were first ruled ineligible.
Zero-Tolerance Policy of Large Retail Establishments
In many large retail establishments where theft, petit theft or shoplifting arrests occur (such as Wal-Mart, Target, K-Mart, Staples, Best Buy, Circuit City, Home Depot, Lowe's, Costco, Publix, Albertson's, Winn-Dixie, Beall's Inc., Belk, JCPenneys, Kohl's, Marshall's, Saks Fifth Avenue, Sears, Neiman Marcus, Macy's, Dillard's, or Nordstroms) the retail establishment may have a zero-tolerance policy that demands that any person caught shoplifting will be prosecuted to the fullest extent of the law.
Hiring an attorney to fight for the best disposition in your case is important. If the retail establishment objects to the diversion program for any reason, your attorney can contact the retail establishment involved in your case, and often convince the retail establishment not to oppose a more favorable disposition such as a diversion program. Also, your attorney can help negotiate some of the terms of diversion and make sure that you are entered into the program as quickly as possible. Finally, your attorney can make sure that the paperwork is completely correctly so that the charges are dismissed which then allows you to petition to seal or expunge your record.
Civil Penalty Demand Letter- The "Shakedown"
Many large retail establishments in Florida will accuse a customer of theft or shoplifting. After the accusation is made, the retail establishment will collect the customer's contact information and turn it over to a law firm that acts much like a collection agency even if the merchandise is recovered and no actual damages are incurred by the store. The law firm will then send a letter to the customer demanding that the customer pay a "civil penalty" authorized under Florida Law, Florida Statute Section 772.11.
In a typical case involving an alleged shoplifting incident in Hillsborough County, Pasco County, Pinellas County or Polk County, the law firm or collection agency will send a "Civil Penalty Demand Letter" to which states that if a fee, usually $200.00 is not paid within a thirty days, then the retail establishment will begin civil proceeds to collect money damages. The first letter often vaguely implies that paying the requested amount may prevent any further litigation which many people assume means that no criminal prosecution will take place if they pay the requested amount.
If the initial amount requested is not paid after the first letter, the Florida law firm will send a second letter 45 days later demanding even more money for unspecified damages from the shoplifting incident, usually $475.00. The second letter demands that the higher amount of damages is paid within 10 days. The second letter almost never states how this amount of damages is calculated. This second letter has a more threatening tone and implies that the sheriff will be notified if you do not pay the requested amount.
The Letters of Misleading
The wording of these letters is extremely misleading. If the law firm actually initiated a civil law suit (which is an extremely remote possibility), then the law firm could theoretically contact the sheriff to have you served with the civil complaint the same way the sheriff's office can be used to serve paperwork in any kind of civil law suit. The wording of the letter (if it makes any mention of the sheriff or law enforcement) is extremely misleading. Many people describe the letters attempting to collect the "civil penalty" as intimidating and humiliating. In some case, the law firm or collection agency will contact the individual over the phone demanding payment. Often a letter from your attorney will put a stop to additional letters or phone calls from the law firm or collection agency.
Failure to Pay Rarely (if Ever) Results in a Law Suit
In Florida retail establishments rarely, if ever, carry through with this threat in a shoplifting case. The statute, Florida Statute Section 772.11 allow for triple damages or a minimum of $200 when damages occur related to a theft offense. However, in the typical shoplifting case when the merchandise is recovered at the scene no actual damages occur. Ironically, Florida Statute Section 772.11 is call the "Civil Remedy for Theft or Exploitation." In civil demand cases, the exploitation can go both ways.
The Players - Palmer, Reifler and Associates, P.A.
Read more at Big Retail Chains Dun Mere Suspects in Theft Demands for Money Can Leave Targets With Little Defense punished by the Wall Street Journal on February 20, 2008. The article found that the civil penalty letters sent out in shoplifting, retail theft, and petit theft cases by a Florida law firm called Palmer, Reifler and Associates, P.A., which handles such letters for Wal-Mart Stores, Walgreens, Macy's, Sears and JC Penneys, keeps between 13% to 30% of the money it collects. The article reports that a partner at the law firm has said that it sends out about 1.2 million such letters a year but follow up by suing fewer than 10 times a year.
If you pay the civil penalty to the Law Offices of Palmer, Reifler and Associates, P.A., you should receive a "Civil Penalty Release" letter signed "Yours very truly, James R. Palmer, Authorized Representative." The letter may provide, in part, as follows:
In consideration for the payment of $____, the payment of which does not constitute an admission of liability, [the retail establishment] hereby releases [your name] from all statutory civil penalties arising out of an incident in the [retail establishment] store number __ on [date]. This release does not apply to claims for restitution or other matters which the store may have against [your name]. Should payment be disputed, contested or stopped, this release will be null and void. This civil penalty release has no bearing on any criminal claim that is or may be pending.
So the letter claims that the payment does not even cover any restitution that may be owed in the case. Why doesn't the letters from Palmer, Reifler & Associates, P.A., explain up front that the civil penalty release as no bearing on any criminal claim that is or may be pending? Although no criminal defense attorney can know for sure whether an individual arrested for a misdemeanor offense of shoplifting will in fact be sued to collect damages under Florida Statutes Section 772.11, it is clear that these suits are rarely, if ever, brought in shoplifting cases. In fact, if the merchandise was returned to the retail establishment without damage, then no actual damages occurred.
Civil Demand Letters Create a Motive for False or Exaggerated Accusations
The huge fees collected by retail establishments can often create an incentive for a loss prevention person at the retail establishment to report shoplifting in even questionable cases. The fact that civil damages are demanded when no actual damages occurred is often a fact that can be raised at trial and argued to the the jury to show the bias or motive on the part of the loss prevention person to exaggerate or spin the facts regarding an incident of petty theft, petit theft, shoplifting or retail theft. Many loss prevention officers will tell the person arrested at the time of the arrest that when they receive the letter for payment of the $200.00, they should pay the amount requested.
In those cases in which the individual does in fact steal the merchandise, and the merchandise is damages in some way, the retail store has suffered actual damages, which is usually measured by the full purchase price of the merchandise. In the criminal case the prosecutor can ask the court to order restitution. In those cases in which actual damages occur, if the individual pays the amount requested in the civil demand letter the individual should retain proof that the payment was made so that the criminal defense attorney can prove to the prosecutor that no additional restitution is owed.
Another Civil Demand Law Firm - The Law Office of Michael Ira Asen, P.C.
Another such law firm that acts much like a collection company is the Law Offices of Michael Ira Asen, P.C. who is associated with the Zellman Group, LLC, which runs a retail loss prevention civil recovery program for numerous retail companies, including four of five of the largest retailers in the United States, including Kohl's department store (Kohl's Illinois, Inc.). Although the Law Offices of Michael Ira Asen, P.C., send out thousands of letters to individuals in Florida demanding payment under Florida Stat. Ann. Section 772.11, it does not appear that the law firm actually employs any Florida attorney that could pursue any civil lawsuit.
Retail Theft or Shoplifting Charges
Whether you were arrested for misdemeanor shoplifting or felony shoplifting or retail theft, contact a Tampa criminal defense attorney to discuss fighting for a dismissal of the charge and to expunge your criminal record. We represent people accused of petty theft, petit theft, retail theft or shoplifting throughout the Tampa Bay Area including Hillsborough County, Pinellas County, Manatee County, Polk County, Pasco County, and Sarasota County. If you have been accused of shoplifting, call to speak with an attorney today about defending yourself against this serious accusation.