Florida Credit Card Surcharge Laws

Quick Summary:

• State law prohibits surcharging: Florida Statute 501.0117 makes credit card surcharges illegal
• Federal court ruling: 2015 Eleventh Circuit decision declared the state ban unconstitutional
• Effectively legal: Businesses can surcharge without state penalties despite technical prohibition
• Federal limits apply: Maximum 4% surcharge under federal law, 3% under Visa rules
• Clear disclosure required: Must inform customers before payment processing

Florida presents a unique legal situation where state law technically prohibits credit card surcharges, but federal courts have ruled this prohibition unconstitutional and unenforceable. The 2015 case Dana's Railroad Supply v. Attorney General, Florida established that businesses can legally add surcharges without facing state penalties, despite the continued existence of the prohibiting statute.

Legal Disclaimer: This information is for reference only and does not constitute legal advice. Florida's surcharge situation involves complex federal and state law interactions, so consult with an attorney before implementing surcharging programs.

Is Credit Card Surcharging Legal in Florida?

Yes, credit card surcharging is effectively legal in Florida despite the existence of Florida Statute 501.0117, which technically prohibits the practice. In November 2015, the U.S. Court of Appeals for the Eleventh Circuit ruled in Dana's Railroad Supply v. Attorney General, Florida that the state's surcharge ban violates the First Amendment and is therefore unconstitutional.

The federal court determined that Florida's law improperly regulated speech rather than conduct, noting that surcharges and cash discounts are "two sides of the same coin" and that prohibiting the use of the word "surcharge" while allowing "discount" constituted unconstitutional speech restriction.

What's Allowed

Florida businesses can legally implement these surcharging practices following the federal court ruling:

Federal guideline compliance:

• Surcharges up to 4% of transaction value under federal law
• Visa surcharges capped at 3% per card network rules
• Must not exceed actual processing costs

Proper disclosure requirements:

• Clear notification before payment processing
• Separate line item on receipts
• Advance notice to customers about surcharge policy

Educational institution exemptions:

• Private schools can charge convenience fees up to actual processing costs
• State-approved educational institutions have limited exemptions under existing statute

What's Not Allowed

Federal regulations and card network rules still prohibit these practices in Florida:

Prohibited surcharge applications:

• Debit card transactions (even signature-based)
• Prepaid card transactions
• Gift card transactions

Excessive or improper charges:

• Surcharges exceeding federal caps (4%) or card network limits (3% for Visa)
• Charges exceeding actual processing costs
• Using surcharges to generate profit beyond cost recovery

Disclosure violations:

• Hidden fees revealed only at checkout
• Failure to itemize surcharge separately on receipts
• Inadequate advance notice to customers

Penalty For Non-Compliance

Florida's enforcement situation creates a complex penalty structure:

State penalties (technically exist but unenforceable): Florida Statute 501.0117 still classifies surcharge violations as second-degree misdemeanors with potential fines up to $500 and 60 days imprisonment, but the 2015 federal court ruling makes these penalties unenforceable.

Federal and card network enforcement: Businesses face more realistic penalties from card networks for violations, including fines from $50,000 to $1 million for non-compliant merchants, passed down from payment processors.

Consumer protection violations: Failure to properly disclose surcharges may violate Florida's Deceptive and Unfair Trade Practices Act, enforceable by the Attorney General's Consumer Protection Division.

Consumer complaints: File complaints with Florida Attorney General's Office at (866) 966-7226 (toll-free) or (850) 414-3990, or online through the consumer complaint form for potential surcharge violations or excessive fees.

Florida Credit Card Surcharge FAQs

Why does Florida law still prohibit surcharges if federal courts ruled it unconstitutional?

The Florida Legislature has not repealed Florida Statute 501.0117 despite the 2015 federal court ruling. The statute remains "on the books" but is effectively unenforceable due to the First Amendment violation found by the Eleventh Circuit. This creates the unusual situation where something is technically illegal under state law but practically legal due to federal constitutional protection.

Can the Florida Attorney General still enforce the surcharge ban?

No, the Eleventh Circuit ruling specifically prevents Florida's Attorney General from enforcing the surcharge prohibition. The court found that the Attorney General's cease-and-desist letters to businesses violated merchants' constitutional rights, making any state enforcement action unconstitutional.

How does Florida's situation compare to other states with court-overturned bans?

Florida's situation is similar to Texas and Oklahoma, where state laws prohibit surcharging but federal courts have ruled these bans unconstitutional. However, Florida's ruling is particularly strong because it specifically addressed First Amendment speech restrictions, while some other states' rulings focused on different constitutional issues.

What should Florida businesses do about the conflicting state and federal law?

Florida businesses should follow federal guidelines and card network rules for surcharging, as these provide the enforceable legal framework. While technically violating state law, the federal court ruling protects businesses from state penalties. However, businesses should still maintain proper documentation and disclosure practices to comply with federal consumer protection standards.

Could Florida's surcharge ban ever be enforced again?

Theoretically, if the U.S. Supreme Court were to overturn the Eleventh Circuit ruling or if Florida amended its statute to address the constitutional issues, enforcement could resume. However, neither scenario appears likely given the strong First Amendment foundation of the current ruling and the trend toward allowing surcharges in most states.

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