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Opinion filed January 7, 2018.

Not final until disposition of timely filed motion for


rehearing

Third District Court of Appeal


State of Florida
Case No: 3D17-999X
Ovalle, David
Defendant, Appellant

Vs.
Publix Supermarkets,
A Florida Corporation

An Appeal from a non-final order from the Circuit Court for Miami-Dade County.
David Weinstein, Esq., for appellant.
Dewey, Cheetum & Howe, for appellee.

Before Judges Green (Retired), Rumpole & Schwartz (Retired), CJ,.1

1
H. Rumpole, sitting by designation as Special Appointed District Court Judge for this matter only. Green and
Schwartz, out of retirement to handle this unusual situation.

1
PER CURIAM
Since the dawn of Supermarkets, the issue of BOGOS and the 10 item
express lane has proved vexatious to citizens and shoppers alike. The case before
this court is one of first impression2. For the reasons cited herein, we uphold the
ruling of the lower court and deny Ovalle’s appeal.
FACTS:
The facts are relatively undisputed, but that makes our job no less difficult.
The Appellant, a well-known Miami Herald reporter and sometime raconteur on
Twitter, tweeted on December 26, 2017 the following:
Publix cashier hassled me because she said I was just over the 10-item
limit in express lane. But I counted a couple Buy-One-Get-One-Free items as one,
which wudda put me under.
Am I wrong?
The matter was taken up by the lower court that ruled that BOGO items
count as “two items, and applying a standard of deference of facts in the light
most favorable to the cashier, see, Little v. Publix Supermarkets, Inc., 234 So.2d
132 (Fla. 4th DCA 1970), Winn-Dixie Stores, Inc. v. Guenther, 395 So. 2d 244, 245
(Fla. 3d DCA 1981)” held that “the court finds no reason to disturb the finding
and decision of the cashier, and thus holds that the Defendant, David Ovalle, was
in fact in the wrong line. Ovalle’s cart had more items than 10, and he was not
eligible to use the express lane.”

Ovalle solicited the opinion of several well-known local attorneys, and this
appeal follows. We have jurisdiction over writs of quo warranto. Fla. R. App. P.
9.100(a). 3

Ovalle, a reporter for the Miami Herald was doing some last minute, post-
Christmas shopping at his local Publix. Taking advantage of a “buy one, get one

2
While much like International law or Sharia law, this is not binding, the Houston Press addressed this issue in
2013. http://www.houstonpress.com/restaurants/upcoming-food-and-drink-events-in-houston-this-winter-2017-
10086043
3
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have
for exercising some right or power they claim to hold. In this matter, the cashier claimed the right and authority to
order the Appellant out of the express lane.

2
free” [Hereinafter BOGO] offer, Ovalle perambulated to the express check-out
line. All parties agree that the line is clearly marked “Ten Items or Less” 4. Ovalle
had more than ten grocery products in his cart. However, it is his argument that
the term item means “different groceries” otherwise a single carton of twelve
eggs, or two six packs of beer would violate the “ten items or less” rule.

To resolve this issue, we must define the term “item”. Dictionary.com


defines “item” as “a separate article.” http://www.dictionary.com/browse/item.
A Google search reveals that “item” is defined as an “individual article or unit.”
Emphasis added. If an “item” is an individualized unit, then Ovalle’s cart, with
more than ten units, violated the posted rules and Ovalle was required to go wait
in line behind the abuella with a full cart and a fist-full of coupons and all the time
in the world.

Additional logic further reveals the flaw in Ovalle’s argument. If Ovalle


bought ten BOGOs, then his cart would have twenty items, twice the limit. If
Ovalle’s argument that an item is a separate grocery product, then Ovalle could
load his cart or multiple carts with twenty or thirty cases of the same brand of
beer, and amble up to the express lane and demand to be checked out, arguing
that he only had one “item”. This would be a clear violation of the intent of the
rule. We defer, where practical, to the plain language of interpretation. “[P]lain
and ordinary meaning must control unless this leads to an unreasonable result or
a result clearly contrary to intent.” State v. Burris, 875 So. 2d 408, 412 (Fla. 2004)

There were several Amicus tweets that were filed in this matter, and the
majority support the proposition that Ovalle was wrong. For example,
TomJackmanWP tweeted “No way. 10 items is 10 items regardless of who’s
paying. Pack of gum is one. Pack of 24 paper towels is one. BOGO is two. Get out
the line man.”

4
The common sign usage “Ten items or less” is grammatically incorrect. The sign should read “Ten items or fewer”
since grammatical rules call for the use of the word fewer for quantities than can be counted. This was recognized
by the English Market chain Tesco, when, bowing to pressure from grammatists, the chain changed its signs in
2008. http://www.telegraph.co.uk/news/uknews/2659948/Tesco-to-ditch-ten-items-or-less-sign-after-good-
grammar-campaign.html

3
@Doug_Hanks tweeted “BOTH must be scanned. EACH counts”.

However, in support of Ovalle, @Lylejoneslaw tweeted “This ruling is


arbitrary and capricious. The plain language, “get one free,” is clearly meant to
indicate that you are only purchasing ONE OF THE ITEMS. The other is a gift, and
does not count towards the limit.”

Jones’ amicus tweet is not persuasive. Although the second item may
indeed be a gift under Florida law, see, Burke v. Coons, 136 So. 2d 235, 237 (Fla.
2d DCA 1961) (“The two essential elements of a gift inter vivos are, [1] the
intention of the donor to relinquish dominion over the subject; and, [2] delivery
of it to the donee.”) citing, Jones v. Ferguson, 1942, 150 Fla. 313, 7 So.2d 464,
Jones does not cite any authority for the proposition that a gift does not count
towards the limit. In other words, a gift is still an item, especially in the scenario
where the Publix cashier had to scan the item.

CONCLUSION:

Ovalle’s specious arguments are precisely why Miami Herald Reporters


should report the law, and not make it. This case also highlights the well-known
maxim that “Bad Facts Make Bad Law.” See, Davis v. Roos, 326 So. 2d 226 FN 4
(Fla. 1st DCA 1976); Smith v. Anderson, 821 So. 2d 323, 327 (Fla. 2d DCA 2002),
Blue, CJ, concurring in part and dissenting in part; Winterbottom v Wright 10
M&W 109 (1842).

Although Publix had the right to force strict enforcement of the ten-item
rule, it did not always do so. Ovalle may have ruined this for the rest of us.

For the foregoing reasons, the appeal is denied, the order of the lower
court is upheld, and Ovalle in the future should not use the Express Lane unless
he has ten actual items or less, BOGO not withstanding. Once warned, twice shy.

IT IS SO ORDERED.

4
Rumpole, concurring,

While I join the opinion of the court, I write, as I have in the past, to express
support with the single line check-out system. In the single line check-out system,
all patrons wait in one line and then are funneled to the next available cashier.
This would remove the “line-roulette” that shoppers have to engage in, hoping
that the line they have chosen will not be stopped cold by the shopper whose
Jello box is mislabeled, forcing the cashier to seek help in determining the correct
price. I write in support of this system, which would have obviated the situation
Ovalle found himself in, despite the recent report in Scientific American, which
contradicted our beliefs, because the single line system does not account for the
“behavioral aspect” of the parallel line checkout system currently used by Publix.
See, https://www.scientificamerican.com/article/the-science-of-getting-through-
a-checkout-line-faster/.

I concur in all other aspects of the opinion.

HR.

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