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Blog · September 12, 2015

Can a Retailer have you Arrested After the Fact if you don’t pay their Civil Demand? ~ “Best Answer” on AVVO ~ Call Michael A. Haber, Esq. @ 1-888-SHARK-8-1

Q:     My friend was accused of shoplifting by TJ Maxx for wearing something in the store and walking around.  My friend was wearing a pair of shoes and a sweater that she picked up at TJ Maxx and walked to the changing rooms. They accused her of shoplifting and gave her a letter that says their recovery agent will be in touch with the civil penalties they would like to recover. The letter also threatens criminal prosecution and also reporting to Lexis Nexus and issues in employment verification in the future. They did not call the cops.  A. My friend has been humiliated and does not accept any liability. She had no intent to walk out with those things. What are her legal options?   B. Does this case automatically become a criminal case or the retailer can make it go away if the civil fines are paid?
A:     Chosen as “Best Answer” by Asker on www.AVVO.com
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Answered . a. Your friend needs to get over herself and her humiliation. She has no business “wearing a pair of shoes and a sweater that she picked up at TJMaxx” unless and until she has paid for them… end of that discussion;

b. No. It is not a criminal matter unless the cops are called out;

c. In regard to the civil penalty: civil penalty. Unless your friend voluntarily pays, then, in order for TJ Maxx to get the civil penalty they have to be able to prove (by clear and convincing evidence) that they were injured by your theft. The statute authorizing the civil demand (see F.S. 772.11 – a link appears below ) permits a retailer to seek a minimum of $200 in damages, but to do so they have to first file a civil lawsuit, which will cost them hundreds of dollars just to file, and then many more to prosecute. Their demand letter to you is essentially an offer to settle a potential civil lawsuit for $200.00, a lawsuit which has not yet, and which may never be, filed.

That said, whether or not you pay them is both a personal and a civil, and NOT a criminal defense related, question.

Please see: FS 772.11 – Civil Theft / http://www.flsenate.gov/Laws/Statutes/2012/772.11

I hope that I have been helpful in answering your question.

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.) less
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Asker
Posted about 15 hours ago.
Michael, you answer was very useful. how does she avoid the issue of reporting to Lexis Nexus and employment verification. The standard format letter they gave her threatens Lexis nexus unfavorable reporting that will impact future employment verification, is that a real threat or can that be contested with Lexis Nexus. I assume it is to make her pay the civil penalty
Michael Adam Haber
Michael Adam Haber, Criminal Defense Attorney – Miami, FL
Posted about 6 hours ago.
You’re welcome.

She has to choose to either pay them or not, and either way there are consequences (the ripple effect).

If she pays them they go away.

If she doesn’t then they can do whatever they wish (within the confines of the law) or not.

Many retailers maintain a shoplifting database, some are publically accessible some are not. Others actively disseminate their information. While this seems to be nothing more than lawful extortion it is in fact lawful.

In the end, as I originally said, whether or not she pays TJ Maxx is both a personal and a civil, and NOT a criminal defense related, question.

Thank you again for the +++ feedback and feel free to ask anything anytime.

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Asker
Posted about 2 hours ago.
Michael my last two questions, if you can kindly answer:
a. Is there anyway this can turn into a criminal matter. So if she doesn’t pay, can they decide to turn this into a criminal offence and go to court
b. If she does pay, does this become an admission of guilt in case later this does turn into a criminal issue

Much obliged again

Michael Adam Haber
Michael Adam Haber, Criminal Defense Attorney – Miami, FL
Posted less than a minute ago.
a)  Yes. But to do so the retailer would have to either call the cops or walk the paperwork into the State Attorney’s Office, and then they (the cops or the SAO) would have to be interested enough to initiate a criminal case. While this (like many things, including our Sun going supernova) is possible it is also extremely unlikely. In 9,999/10,000x (note – this is not an actual stat – it is merely stated to illustrate the point) if the cops are not called to the retail site while the alleged shoplifter is actually / physically still in loss prevention custody then there will be no police / criminal court involvement.

b)  No. Payment of the civil penalty has nothing to do with criminal court and shoudl not be admissible in a subsequent criminal proceeding.

Let me add that I routinely advise people to throw those notices in the garbage and not to think twice about them. The reality is (as suggest with my example of the Sun exploding and all life on Earth ceasing to exist) that it is a rare circumstance where a retailer will throw away good money for bad.  Still, if your friend wants to hedge her/his odds then $200 is a small price to pay to shut TJ Maxx up and close their file.

Thank you again for your kind feedback.

At Michael A. Haber, P.A. the goals in representing folks are A) to be honest and realistic about litigation objectives; B) to be fair in regard to fees; C) to be consistently available and responsive to the client (in person, by phone call, text, email, Facebook. Twitter and otherwise); D) to keep the client informed; and E) to secure your positive feedback / client review at the conclusion of each case.


At Michael A. Haber, P.A. “Its all about reasonable doubt”!


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