author: PARIENTE, J.

text:
    McKENZIE CHECK ADVANCE OF FLORIDA, LLC, et al., Petitioners, v. Wendy BETTS, et al., Respondents.
    No. SC11-514.
    Supreme Court of Florida.
    April 11, 2013.

      Virginia B. Townes and Carrie Ann Wozniak of Akerman Senterfitt, Orlando, FL; Jaime A. Bianchi, David P. Draigh and Sheldon Philp of White & Case, LLP, Miami, FL and Lawrence Patrick Roche-fort of Akerman Senterfitt, West Palm Beach, FL, for Petitioner McKenzie Check Advance of Florida, LLC.
    Claudia Callaway of Katten, Muchin, Rosenman, LLP, Washington, DC, for Petitioners Steve A. McKenzie and Brenda G. Lawson.
    Theodore Jon Leopold and Diana L. Martin of Leopold Kuvin, P.A., Palm Beach Gardens, FL, and F. Paul Bland, Jr., Public Justice, Washington, DC, for Respondents.
    Andrew J. Pincus and Archis A. Parash-arami of Mayer, Brown, LLP, Washington, DC; Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, DC; Caryn L. Bellus of Kubicki Draper, Miami, FL, for Amicus Curiae Chamber of Commerce of the United State of America.
   PARIENTE, J.

The issue raised by the decision of the Fourth District Court of Appeal in McKenzie v. Betts, 55 So.3d 615 (Fla. 4th DCA 2011), is whether the class action waiver in the arbitration agreement in this case violates Florida public policy. After the Fourth District decided this case, concluding that the class action waiver violated public policy, and certified a question to be of great public importance to this Court, the United States Supreme Court issued its decision in AT & T Mobility, LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740, 1744, 179 L.Ed.2d 742 (2011), addressing the issue of whether the Federal Arbitration Act (FAA) “prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.” The Supreme Court concluded that the California Discover Bank rule, which it characterized as “classifying most collective-arbitration waivers in consumer contracts as unconscionable,” was preempted by the FAA. Id. at 1746.

Applying the rationale of Concepcion to the facts set forth by the Fourth District in McKenzie, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of it being void as against public policy. Accordingly, we quash the Fourth District’s decision below. We decline to answer the certified question because it is moot in light of Concepcion. In other words, even if the Fourth District is correct that the class action waiver in this case is void under state public policy, this Court is without authority to invalidate the class action waiver on that basis because federal law and the authoritative decision of the United States Supreme Court in Concepcion preclude us from doing so.

FACTS AND BACKGROUND

In 2001, plaintiffs Wendy Betts and Donna Reuter filed a class action complaint in circuit court against McKenzie Check Advance, LLC, d/b/a National Cash Advance (MCA), as well as Brenda and Steve McKenzie as the majority owners and managing officers of MCA. The plaintiffs asserted claims based on the Florida lending practices statute (chapter 687), Florida Consumer Finance Act (chapter 516), Florida Deceptive and Unfair Trade Practices Act (chapter 501) (FDUTPA), and the Florida Civil Remedies for Criminal Practices Act (chapter 772) (FCRCPA). The crux of the plaintiffs’ claims was that MCA, under the deceptive guise of a check cashing service, was in reality loaning money at usurious and exorbitant rates.

The issue involved in this case arose when, in 2007, the plaintiffs amended the class action complaint to add Tiffany Kelly as an additional plaintiff and named class member. Because Kelly had signed the version of MCA’s arbitration agreement that contained a class action waiver, this case focuses on her contracts with MCA, and not on the contracts signed by Betts or Reuter.

The Fourth District set forth the following facts with respect to Kelly:

This new plaintiff was Tiffany Kelly; her contracts with [MCA] included an arbitration agreement with a class action waiver. [MCA] moved to stay the proceedings and compel arbitration. The plaintiffs objected to arbitration, claiming the class action waiver was unconscionable, violated public policy, or both. The challenge to the arbitration agreement necessitated an evidentiary hearing.
At the hearing, Kelly testified she was a 24-year-old single mother with a year of college education. Money was tight— she had been turned down for public assistance and her bank would not give her a loan. A co-worker told her about [MCA]. Though embarrassed, she needed money so desperately that she went to a[MCA] store to obtain a cash advance on her paycheck. She described this first transaction with [MCA], [MCA] gave her documents to review and initial. While she did not read the documents thoroughly, Kelly admitted that no one discouraged her from doing so. She was, however, anxious to receive the advance, and she knew she had to sign the documents to receive it.
Kelly signed the contract, gave [MCA] a $338 check in exchange for $300 cash, and left. She understood she would have to redeem the check within ten days or [MCA] could present it for payment. During the putative class period, Kelly ultimately engaged in twenty-one more payday loans with [MCA]. She paid a total of $860 in fees. When she entered into the transactions, Kelly testified she assumed they were legal: “If it was against the law, [the defendants] wouldn’t be allowed to operate. At least that’s what I would assume.”

McKenzie, 55 So.3d at 618-19 (alteration in original). Each transaction between MCA and Kelly was memorialized by a written contract that contained an arbitration clause and a class action waiver. The arbitration clause explicitly stated that the arbitrator shall not conduct class arbitration. The agreement further provided: “If any of this WAIVER OF JURY TRIAL AND ARBITRATION AGREEMENT is held invalid, the remainder shall remain in effect.” The parties stipulated, however, that if the class action waivers were held to be unenforceable, the arbitration provisions would be stricken.

The parties presented evidence at an evidentiary hearing on whether the class action waivers left MCA’s customers “without a viable means of seeking redress .... Kelly presented the expert testimony of three Florida attorneys. The three testified that, absent the class action mechanism, Florida customers who wanted to challenge the practice of payday advance businesses would not be able to obtain competent legal representation.” Id. at 619. The attorneys further testified that it was virtually impossible for an individual consumer to find a competent attorney for a payday loan case because of the complex nature of such cases and the small amount of potential recovery. See id. at 619-20.

Following the hearing, the trial court denied MCA’s motion to compel arbitration. In its order, the trial court found that the greater weight of the evidence “supported] the proposition that it would have been virtually impossible for Kelly to obtain competent individual representation for the claims brought here, particularly in 2000.” The trial court ruled that the class action waiver was unenforceable because it was void as against public policy. Specifi-eally, the trial court determined that “enforcement of the class ban would deprive Kelly and similarly situated consumers of any remedy” and “would defeat the implicated statutes’ remedial purposes and undercut them deterrent value.”

On appeal, MCA argued that its class action waiver would not defeat the remedial purposes of the statutes upon which the plaintiffs sued, including FDUTPA and FCRCPA. Id. at 621. The Fourth District disagreed, stating that “[c]ompetent, substantial evidence supported] the trial court’s finding that no other reasonable avenue for relief would be available if it enforced the class action waiver.” Id. at 623. The Fourth District recognized that the contract “preserved [Kelly’s] substantive rights,” id. at 619, but reasoned that the class action waiver violated the public policy of FDUTPA and FCRCPA because the inability to bring a class action suit against MCA would “eviscerate the remedial purposes of the relied-upon statutes. Only with the availability of class representation would consumers’ rights in these payday loan transactions be vindicated.” Id. at 623. The Fourth District concluded that “[bjecause payday loan cases are complex, time-consuming, involve small amounts, and do not guarantee adequate awards of attorney’s fees, individual plaintiffs cannot obtain competent counsel without the procedural vehicle of a class action. The class action waiver prevents consumers from vindicating their statutory rights, and thus violates public policy.” Id. at 629. Stating that “these class action waivers frequently involve transactions amenable to suit under remedial statutes like FDUTPA, and such waivers are used more and more,” the Fourth District certified to this Court the question of whether a class action waiver in an arbitration agreement violates public policy when the trial court is persuaded that the waiver prevents consumers from obtaining competent counsel. Id.

ANALYSIS

MCA argues that in light of AT & T Mobility, LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011), which was issued after the Fourth District’s decision below, the FAA preempts .state laws invalidating arbitration agreements that require arbitration on an individual basis, thus requiring enforcement of the class action waiver in this case. Kelly responds that Concepcion does not apply to this case and, even if it did, it does not require enforcement of a class action waiver when, as here, an extensive factual record demonstrates that the plaintiffs would be unable to obtain competent counsel absent class action. Therefore, Kelly argues, enforcing the ban would prevent plaintiffs from vindicating their statutory rights.

The issue of whether under Concepcion the FAA would preempt the application of the void as against public policy contract defense in this case is a pure question of law, and this Court’s review is de novo. See Bosem v. Musa Holdings, Inc., 46 So.3d 42, 44 (Fla.2010) (“Because this is a pure question of law, our standard of review is de novo.”). We begin our analysis by reviewing the FAA and Concepcion. Then we apply Concepcion to this case. We also address, and reject, each of Kelly’s arguments that Concepcion does not apply here. We conclude that in light of Concepcion, the class action waiver in this case is enforceable. Accordingly, we do not reach the certified question because it is moot.

I. The Federal Arbitration Act

The United States Supreme Court has consistently explained that the FAA, which was enacted in 1925 as a response to judicial hostility to arbitration, establishes a liberal federal policy favoring arbitration agreements. See CompuCredit Corp. v. Greenwood, — U.S. -, 132 S.Ct. 665, 668-69, 181 L.Ed.2d 586 (2012); Concepcion, 131 S.Ct. at 1745; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Section 2 of the FAA, referred to as the “primary substantive provision of the Act,” Concepcion, 131 S.Ct. at 1745 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)), provides in relevant part:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2 (emphasis added). The United States Supreme Court has “described this provision as reflecting both a ‘liberal federal policy favoring arbitration,’ and the ‘fundamental principle that arbitration is a matter of contract.’ ” Concepcion, 131 S.Ct. at 1745 (citations omitted). Accordingly, “courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms.” Id. (citations omitted). The final phrase of § 2, referred to as the savings clause, however, permits arbitration agreements to be declared unenforceable based on “‘generally applicable contract defenses, such as fraud, duress, or unconsciona-bility,’ but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” Id. at 1746.

II. AT & T Mobility, LLC v. Concepcion

In Concepcion, the question before the United States Supreme Court was “whether the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.” Id. at 1744. Specifically, the Supreme Court considered whether the FAA preempts California’s Discover Bank rule, which “classified] most collective-arbitration waivers in consumer contracts as unconscionable.” Id. at 1746.

In Concepcion, the plaintiffs entered into an agreement with AT & T for the sale and servicing of cellular telephones, which provided for arbitration of all disputes and contained a class action waiver. Id. at 1744. The plaintiffs later brought suit against AT & T in federal district court alleging, among other things, that AT & T had engaged in false advertising and fraud by charging sales tax on phones it had advertised as free. Id. AT & T moved to compel arbitration, which the plaintiffs opposed by arguing that the arbitration agreement was unconscionable and unlawfully exculpatory under California law because it disallowed class action proceedings. Id. at 1744-45. The federal district court denied AT & T’s motion, relying on the California Supreme Court’s decision in Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 (2005), to find the arbitration provision unconscionable. Concepcion, 131 S.Ct. at 1745. Under the Discover Bank rule, a class action waiver in a consumer contract of adhesion is unenforceable “in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money” because “the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ ” Id. at 1746 (quoting Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d at 1110). The Ninth Circuit affirmed, also finding the provision to be unconscionable under the Discover Bank rule. Id. at 1745.

The United States Supreme Court granted certiorari review on the issue of FAA preemption. The plaintiffs argued that the Discover Bank rule, given its origins in California’s unconscionability doctrine and California’s policy against exculpation, is a ground that “exist[s] at law or in equity for the revocation of any contract” under § 2 of the FAA. Id. at 1746. They further argued that even if the Supreme Court construed the Discover Bank rule as a prohibition on collective-action waivers rather than an application of un-conscionability, the rule would still be applicable to all contracts, since California prohibits waivers of class litigation as well. Id.

The Supreme Court noted that when “a state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward — the conflicting rule is displaced by the FAA.” Id. at 1747. However, the analysis becomes “more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration.” Id. In such situations, a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable.” Id. (quoting Perry v. Thomas, 482 U.S. 483, 492 n. 9, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). The Supreme Court reasoned that “[a]l-though § 2’s saving clause preserves generally applicable contract defenses, nothing in it suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives.” Id. at 1748. With respect to class arbitration, the Supreme Court held that

[t]he overarching purpose of the FAA, evident in the text of §§ 2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of elasswide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.

Id.

The Supreme Court concluded that California’s Discover Bank rule interferes with the fundamental attributes of arbitration because “[although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post.” Id. at 1750. The Supreme Court recognized that the Discover Bank rule was limited to adhesion contracts, but observed that “the times in which consumer contracts were anything other than adhesive are long past.” Id. The Supreme Court further reasoned that the other limitations in the Discover Bank rule also had no limiting effect on the application of the rule:

The rule also requires that damages be predictably small, and that the consumer allege a scheme to cheat consumers. The former requirement, however, is toothless and malleable (the Ninth Circuit has held that damages of $4,000 are sufficiently small, see Oestreicher v. Alienware Corp., 322 Fed.Appx. 489, 492 ([9th Cir.]2009) (unpublished)), and the latter has no limiting effect, as all that is required is an allegation. Consumers remain free to bring and resolve their disputes on a bilateral basis under Discover Bank, and some may well do so; but there is little incentive for lawyers to arbitrate on behalf of individuals when they may do so for a class and reap far higher fees in the process. And faced with inevitable class arbitration, companies would have less incentive to continue resolving potentially duplicative claims on an individual basis.

Id. (citation omitted). The Supreme Court detailed the disadvantages of class-wide arbitration and concluded that to the extent it is manufactured by the Discover Bank rule rather than consensually agreed upon by the parties, class arbitration is inconsistent with the FAA. Id. at 1750-51.

In response to the dissent’s assertion that “class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system,” the Supreme Court stated that “States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Id. at 1753. The Supreme Court concluded that because the Discover Bank rule stands as an obstacle to the FAA’s purposes, it was preempted. Id.

III. Applying Concepcion to This Case

Under Florida law, a contractual provision that defeats the purpose of a remedial statute violates public policy and is thus unenforceable. Lacey v. Healthcare & Ret. Corp. of Am., 918 So.2d 333, 334 (Fla. 4th DCA 2005); see also Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 474 (Fla.2011); Gessa v. Manor Care of Fla., Inc., 86 So.3d 484, 492-93 (Fla.2011). In this case, Kelly has argued, and the Fourth District has held, that MCA’s class action waiver violates public policy because consumers would be unable to obtain competent counsel if the small-value claims, such as those in this case, could not be brought in a class action proceeding, and that this result would prevent a consumer from vindicating the rights that FDUTPA and FCRCPA are designed to create and nurture. McKenzie, 55 So.3d at 617, 623.

We do not reach the merits of this argument, because to the extent that Florida law would invalidate the class action waiver on this basis, the FAA preempts Florida law under the facts presented here. The United States Court of Appeals for the Eleventh Circuit recently reached the same result in a case where the plaintiffs argued that a class action waiver in an arbitration agreement was unenforceable because it would exculpate a corporation from liability under state law and therefore defeat the remedial purpose of FDUTPA in violation of public policy. See Cruz v. Cingular Wireless, LLC, 648 F.3d 1205, 1212 (11th Cir.2011). We conclude that the Eleventh Circuit’s reasoning in Cruz is persuasive and applicable in this case.

In Cruz, the plaintiffs contended that the vast majority of the numerous, small-value claims against the defendant corporation would “go unprosecuted unless they may be brought as a class.” Id. This argument was based on evidence presented that attorneys would refuse to represent consumers for the “legally complex but small-value claims unless they can be aggregated” and that absent class action notice procedures, the vast majority of consumers would never know that their rights have been violated. Id. The Eleventh Circuit held that invalidating the class action waiver on that basis would be preempted by the FAA:

[T]he Concepcion Court specifically rejected this public policy argument, which was expressly made by the dissent in that case: “The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” Concepcion, 131 S.Ct. at 1753 (citation omitted). Thus, in light of Concepcion, state rules mandating the availability of class arbitration based on generalizable characteristics of consumer protection claims — including that the claims “predictably involve small amounts of damages,” id. at 1746 (quoting Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d at 1110), that the company’s deceptive practices may be replicated across “large numbers of consumers,” id. (quoting Discover Bank, 30 Cal.Rptr.3d 76, 113 P.3d at 1110), and that many potential claims may go unprosecuted unless they may be brought as a class, id. at 1753 — are preempted by the FAA, even if they may be “desirable,” id. Therefore, to the extent that Florida law would be sympathetic to the Plaintiffs’ arguments here, and would invalidate the class waiver simply because the claims are of small value, the potential claims are numerous, and many consumers might not know about or pursue their potential claims absent class procedures, such a state policy stands as an obstacle to the FAA’s objective of enforcing arbitration agreements according to their terms, and is preempted.

Id. at 1212-13. We conclude that this reasoning also applies to the facts and arguments presented in this case. None of Kelly’s arguments to the contrary are availing.

Kelly initially contends that Concepcion does not apply to actions brought in state court because, since 1995, Justice Thomas has consistently stated that the FAA in general, and § 2 in particular, does not apply in state courts. Thus, Kelly asserts, had Concepcion reached the United States Supreme Court from a state court, there could not have been five votes for preemption. We reject this speculative argument. Concepcion does not make the distinction asserted by Kelly, nor does Justice Thomas in his concurrence in Concepcion. Simply put, nothing in the reasoning of Concepcion limits the application of Concepcion to cases arising in federal court, and the Supreme Court has held that the FAA applies in both federal and state courts. See, e.g., Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 272, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995).

Kelly’s primary argument for why Concepcion does not apply in this case is based on her assertion that Concepcion does not disturb long-standing Supreme Court precedent dating back to Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985), that statutory claims are arbitrable only if the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum. See Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346 (stating that “so long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function”); Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (stating that “even claims arising under a statute designed to further important social policies may be arbitrated because ‘so long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum,’ the statute serves its functions” (quoting Mitsubishi Motors, 473 U.S. at 637, 105 S.Ct. 3346)); see also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995); EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). Kelly asserts that because Concepcion did not overrule this line of precedent, the only way to harmonize Concepcion with these cases is to hold that a class action waiver cannot be enforced if it would prevent parties from vindicating statutory rights.

The case law, however, does not support Kelly’s argument. The Supreme Court cases cited by Kelly involved the FAA and claims brought under federal statutes, whereas Concepcion involved the issue of whether state law was preempted by the FAA. Compare Mitsubishi Motors, 473 U.S. at 627-28, 105 S.Ct. 3346 (“Just as it is the congressional policy manifested in the Federal Arbitration Act that requires courts liberally to construe the scope of arbitration agreements covered by that Act, it is the congressional intention expressed in some other statute on which the courts must rely to identify any category of claims as to which agreements to arbitrate will be held unenforceable.... We must assume that if Congress intended the substantive protection afforded by a given statute to include protection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history. Having made the bargain to arbitrate, the party should be held to it unless Congress itself .has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” (citation omitted)); Green Tree Fin. Corp.-Ala., 531 U.S. at 90, 121 S.Ct. 513 (“[W]e first ask whether the parties agreed to submit their claims to arbitration, and then ask whether Congress has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.”); with Concepcion, 131 S.Ct. at 1744 (‘We consider whether the FAA prohibits States from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures.”); id. at 1753 (“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”).

Federal courts considering whether to compel arbitration of a federal claim have distinguished Concepcion on this basis. See, e.g., In re Am. Exp. Merchants’Litig., 667 F.3d 204, 213 (2d Cir.2012) (stating in a federal antitrust case that “Concepcion plainly offers a path for analyzing whether a state contract law is preempted by the FAA. Here, however, our holding rests squarely on ‘a vindication of statutory rights analysis, which is part of the federal substantive law of arbitrability ”); Chen-Oster v. Goldman, Sachs & Co., 2011 WL 2671813, at *3 (S.D.N.Y. July 7, 2011) (explaining that the consideration when the FAA and a federal statute are involved is “whether the FAA’s objectives are also paramount when ... rights created by a competing federal statute are infringed by an agreement to arbitrate” (emphasis added)). Because Mitsubishi Motors and its progeny addressed federal statutory claims and the effectuation of Congress’s intent in those federal statutes, there was no need for the Supreme Court in Concepcion to overrule the Mitsubishi Motors line of cases. We reject the suggestion that the fact that the Supreme Court did not recede from those cases in Concepcion is indicative of an unstated intent to create an exception to Concepcion when the parties are unable to vindicate rights under a state statute. See Coneff v. AT & T Corp., 673 F.3d 1155, 1158 & n. 2 (9th Cir.2012) (stating that “Mitsubishi [Motors], Gil-mer, Green Tree and similar decisions are limited to federal statutory rights” and rejecting the argument that the tension between the Mitsubishi Motors line of cases and Concepcion “must be resolved by reading an implied exception into Concepcion ” (emphasis added)).

We also reject Kelly’s reliance on a federal appellate court case decided prior to Concepcion, which she cites as standing for the proposition that the vindication-of-statutory-rights analysis applies in the state statutory context. See Booker v. Robert Half Int’l, Inc., 413 F.3d 77 (D.C.Cir.2005). The reasoning employed in Mitsubishi Motors and its progeny, as well as the weight of persuasive case law, are contrary to Kelly’s position. Moreover, creating such an exception would appear to be contrary to the rationale of Concepcion, which made it clear that the focus of the inquiry was whether the state rule would frustrate the purposes of the FAA. See Concepcion, 131 S.Ct. at 1753 (“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot re quire a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” (emphasis added) (citation omitted)).

Kelly also argues that Concepcion was concerned only with mechanical state rules that would invalidate class action waivers regardless of whether the particular facts of a case demonstrate that the parties could effectively vindicate their rights in arbitration. She further argues that the record evidence in this case, including the expert testimony of three attorneys, demonstrates that she will be unable to obtain competent counsel absent class action and therefore will be unable to vindicate her statutory rights. The Eleventh Circuit recently considered similar factual evidence in Cruz, 648 F.3d at 1214, in which the plaintiffs presented a “factual record not present in Concepcion — the affidavits of three Florida consumer law attorneys who attested that they would not represent consumers on an individual basis” in pursuing their claims against the defendant. All three Florida consumer law attorneys “examined both [the defendant’s] arbitration agreement (including its allegedly pro-consumer features) and the Plaintiffs’ complaint, and concluded that it would not be cost-effective for them to pursue such claims ... except on an aggregated basis.” Id. The Eleventh Circuit concluded that

faithful adherence to Concepcion requires the rejection of the Plaintiffs’ argument. The Plaintiffs’ evidence goes only to substantiating the very public policy arguments that were expressly rejected by the Supreme Court in Concepcion — namely, that the class action waiver will be exculpatory, because most of these small-value claims will go undetected and unprosecuted. The Court observed that California’s Discover Bank rule too had “its origins in California’s unconscionability doctrine and California’s policy against exculpation.” Concepcion, 131 S.Ct. at 1746.... Indeed, the Concepcion consumer-plaintiffs’ brief to the Supreme Court repeatedly emphasized that California’s rule was a “fact-specific” inquiry that only screened out class action bans “in circumstances where they would ... be exculpatory.” Concepcion Resp. Br. at *20; see also id. at *12 (“The FAA favors arbitration, not exculpation.”).

Id. The Eleventh Circuit also reasoned that the rule suggested by the plaintiffs in that case, like the Discover Bank rule, “would equally encompass the field of small-value consumer fraud claims” and “would preserve mandatory class actions for all ‘small but numerous’ consumer claims.” Id.

The Eleventh Circuit concluded that “[Unquestionably, if Florida adopted such a rule, it would be preempted by the FAA, under the reasoning in Concepcion.” Id. at 1215. More recently, the Eleventh Circuit again rejected this argument in Pendergast v. Sprint Nextel Corp., 691 F.3d 1224, 1235 (11th Cir.2012), stating that “[t]he reasoning of Cruz applies equally here. The Supreme Court in Concepcion expressly rejected the notion that the state law should not be preempted because the class action waiver would-effectively shield the defendant from liability.”

We agree with the reasoning of the Eleventh Circuit and conclude that the record evidence presented in this case actually substantiates the public policy arguments rejected by the United States Supreme Court in Concepcion. The rule suggested by Kelly and the Fourth District would encompass all cases in which a plaintiff presented expert testimony from attorneys that they “would not represent consumers in individual small claims suits.” McKenzie, 55 So.3d at 623. This would be, in effect, based on whether the claims were too small for attorneys to accept on an individual basis — an argument squarely rejected in Concepcion as a basis on which to require class procedures. See Concepcion, 131 S.Ct. at 1753 (“The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. But States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.” (citation omitted)). We conclude that the basis for invalidating the class action waiver propounded by Kelly based on the facts of this case is foreclosed by Concepcion.

CONCLUSION

In light of the United States Supreme Court’s recent decision in Concepcion, we conclude that the FAA preempts invalidating the class action waiver in this case on the basis of the waiver being void as against public policy. Accordingly, we quash the Fourth District’s decision below and decline to answer the certified question as it is now moot.

It is so ordered.

QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J, and LEWIS, J., concur in result.

      . The Chamber of Commerce of the Untied States of America filed an amicus brief in support of the Petitioners, McKenzie Check Advance of Florida, LLC, et al.

      . In its decision, the Fourth District ruled upon the following question, which it certified to be of great public importance:
      WHEN ASSERTED IN A CLAIM INVOLVING A VIOLATION OF FDUTPA OR ANOTHER REMEDIAL STATUTE, DOES A CLASS ACTION WAIVER IN AN ARBITRATION AGREEMENT VIOLATE PUBLIC POLICY WHEN THE TRIAL COURT IS PERSUADED BY EVIDENCE THAT SUCH A WAIVER PREVENTS CONSUMERS FROM OBTAINING COMPETENT COUNSEL?

        Id. at 629. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . The Discover Bank rule refers to the California Supreme Court case of Discover Bank v. Superior Court, 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100, 1110 (2005), which held that a class action waiver in a consumer contract of adhesion is unenforceable "in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money."

      . Respondent Tiffany Kelly urges that this Court could also affirm the Fourth District's decision below on the basis that the class action waiver in this case is unconscionable. We decline to address this issue because it was not discussed in the Fourth District's decision below and is outside the scope of, and unrelated to, the certified question before this Court. See Major League Baseball v. Morsani, 790 So.2d 1071, 1080 n. 26 (Fla.2001) (declining to address a claim "because it is outside the scope of the certified question”); State v. Perry, 687 So.2d 831, 831 (Fla.1997) ("We decline to review the second cross-appeal issue raised by respondent because the issue is unrelated to the certified question upon which this Court's jurisdiction is based.").

      . Although Concepcion involved a challenge to a class action waiver based on the contract defense of unconscionability, it applies equally to other contract defenses, including the defense of void as against public policy. See Concepcion, 131 S.Ct. at 1748. In fact, the Supreme Court used an example of a public policy defense to illustrate a state law that would be inconsistent with the FAA’s purposes: a rule "finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to provide for judicially monitored discovery.” Id. at 1747. Shortly after Concepcion, the Supreme Court granted certiorari relief and vacated a decision of the South Carolina Supreme Court, which had held that a class action waiver was unenforceable on public policy grounds, and remanded for reconsideration in light of Concepcion. See Sonic Auto., Inc. v. Watts, - U.S. -, 131 S.Ct. 2872, 179 L.Ed.2d 1184 (2011). Moreover, courts have subsequently applied Concepcion to cases involving the contract defense of void as against public policy. See, e.g., Cruz v. Cingular Wireless, LLC, 648 F.3d 1205 (11th Cir.2011); NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J.Super. 404, 24 A.3d 777 (N.J.Super.Ct.App.Div.2011); Wallace v. Ganley Auto Group, 2011 WL 2434093 (Ohio Ct.App. June 16, 2011); see also Arellano v. T-Mobile USA, Inc., 2011 WL 1842712, at *2 (N.D.Cal. May 16, 2011) (stating that Concepcion "decided that states cannot refuse to enforce arbitration agreements based on public policy”); Kaltwasser v. AT & T Mobility LLC, 812 F.Supp.2d 1042, 1050 (N.D.Cal.2011) (observing that "Discover Bank itself was based upon public policy rationales intertwined with the generally applicable doctrine of unconsciona-bility”).

      . See Preston v. Ferrer, 552 U.S. 346, 363, 128 S.Ct. 978, 169 L.Ed.2d 917 (2008) (Thomas, J., dissenting) (stating that the FAA "does not apply to proceedings in state courts"); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) (Thomas, J., dissenting) (same); Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 460, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003) (Thomas, J., dissenting) (same); Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 689, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (Thomas, J., dissenting) (same); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 285, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (Thomas, J., dissenting) (same).

      . See Kilgore v. KeyBank, Nat'l Ass'n, 673 F.3d 947, 961-62 (9th Cir.2012) (stating that the Mitsubishi Motors exception to the FAA’s applicability "applies only to federal statutory claims” and that "the very nature of federal preemption requires that state law bend to conflicting federal law — no matter the purpose of the state law. It is not possible for a state legislature to avoid preemption simply because it intends to do so. The analysis of whether a particular statute precludes waiver of the right to a judicial forum — and thus whether that statutory claim falls outside the FAA's reach — applies only to federal, not state, statutes. On the several occasions that the Supreme Court has considered whether a statutory claim was unsuitable for arbitration, the claim at issue was a federal one.”); Coneff 673 F.3d at 1158 n. 2 (“Mitsubishi [Motors], Gilmer, Green Tree and similar decisions are limited to federal statutory rights.”); Stutler v. T.K. Constructors Inc., 448 F.3d 343, 346 (6th Cir.2006) (stating that Green Tree was limited by its "plain language to the question of whether an arbitration clause is enforceable where federal statutorily provided rights are affected” and distinguishing the case before it on the grounds that "no federally protected interest is at stake" because the plaintiffs "through diversity jurisdiction, seek to enforce contractual rights provided by state law”).

      . The Eleventh Circuit certified questions to this Court in Pendergast, asking how contractual unconscionability should be analyzed under Florida law and whether a class action waiver in an agreement to arbitrate in a consumer contract for wireless telephone service is unconscionable under Florida law. See Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1143-44 (11th Cir.2010). After the United States Supreme Court subsequently issued its decision in Concepcion, Sprint filed in this Court a motion to decline jurisdiction, which we granted, returning the case to the Eleventh Circuit. See Pendergast v. Sprint

        Nextel Corp., SC10-19, 2012 WL 2948594, at *1 (Fla.Sup.Ct. order filed July 17, 2012). The Eleventh Circuit concluded that the class action waiver was enforceable under Concepcion. See Pendergast, 691 F.3d at 1236.


source: Caselaw Access Project

author: QUINCE, J.

license: Public Domain

text:
    Charles PAUL, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-690.
    Supreme Court of Florida.
    April 11, 2013.

      Kerry Cooper Collins of Howell & O’Neal, Jacksonville, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, Bureau Chief and Melanie Dale Surber and Joseph Albert Tringali, Assistant Attorneys General, West Palm Beach, FL, for Respondent.
   QUINCE, J.

We have for review Paul v. State, 59 So.Sd 193 (Fla. 4th DCA 2011), wherein the Fourth District certified conflict with the First District’s decision in Crapps v. State, 968 So.2d 627 (Fla. 1st DCA 2007). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The certified conflict involves an issue of statutory construction: whether shooting into an occupied vehicle under section 790.19, Florida Statutes (2001), qualifies for prison releas-ee reoffender (PRR) sentencing under the forcible felony catch-all provision of the PRR statute, section 775.082(9)(a)l. o, Florida Statutes (2001). We approve the Fourth District’s decision below because we find that the offense of shooting into an occupied vehicle necessarily involves the use or threat of physical force or violence against an individual, and therefore, qualifies as a forcible felony under the catch-all provision of the PRR Statute. We disapprove the opinion in the conflicting case of Crapps.

Paul

Charles Paul was convicted under section 790.19, Florida Statutes (2001), for shooting into an occupied vehicle. Paul, 59 So.3d at 194. Persons convicted under section 790.19 may be subjected to penalties under section 775.082(9)(a), Florida Statutes (2001), the “prison releasee reof-fender” (PRR) statute, which specifies that a defendant who commits “[a]ny felony that involves the use or threat of physical force or violence against an individual” (i.e., the catchall provision) within three years of being released from a state correctional facility is a PRR who is not eligible for sentencing under the sentencing guidelines and must be sentenced to the mandatory minimum sentences specified in section 775.082(9)(a)3. In Paul’s case, the trial court determined that he qualified as a PRR under the catchall provision and thus sentenced him to a prison term of fifteen years for the second-degree felony of shooting into an occupied vehicle. See § 775.082(9)(a)3.c., Fla. Stat. (2001) (providing that upon proof that a defendant is a prison release reoffender as defined in the statute, the defendant must be sentenced “[f]or a felony of the second degree, by a term of imprisonment of 15 years”).

After receiving an enhanced sentence under the violent felony catch-all provision of the PRR statute, Paul filed a postcon-viction motion under Florida Rule of Criminal Procedure 3.850 in the trial court, disputing the validity of his sentence. The trial court denied the motion as untimely and successive. On appeal to the Fourth District Court of Appeal, Paul disputed his enhanced sentence, claiming that his conviction was not a qualifying felony under the forcible felony catch-all provision of the PRR statute. Paul, 59 So.3d at 194.

The Fourth District affirmed the trial court order by summarily denying Paul’s rule 3.850 claim. Id. The court also found that even if the claim had been raised in a motion under Florida Rule of Criminal Procedure 3.800(a), it lacked merit and had already been rejected on direct appeal. Id. The Fourth District concluded that “this offense necessarily includes the use of force or violence against an individual. To commit a violation of section 790.19, a vehicle must be occupied.” Id. The Fourth District noted that, as required by this Court’s decision in State v. Hearns, 961 So.2d 211 (Fla.2007), when a court is determining whether a particular offense constitutes a “forcible felony” the court may only consider the statutory elements of the offense, and not the particular circumstances of the case. Id. The Fourth District went on to clarify that “although a court may not look to the facts of the case in deciding whether the use of force is involved, a court is not required to ignore the elements of the particular provision of the statute under which appellant is charged.” Id.

The Fourth District distinguished Paul’s case from previous cases which involved shooting into a building, reasoning that under section 790.19 a building may be occupied or unoccupied and a conviction under that provision of the statute does not necessarily require the use of force against an individual. Id. The Fourth District recognized and certified direct conflict with the decision of the First District in Crapps, on the issue of whether the offense of shooting into an occupied vehicle under section 790.19, Florida Statutes, necessarily includes the use or threat of force against an individual. Id.

Crapps

Alander Crapps was convicted of throwing a deadly missile into an occupied vehicle under section 790.19, Florida Statutes (2005), which contained the same language as the 2001 version of the statute at issue in Paul. Crapps, 968 So.2d at 627. Crapps appealed his conviction to the First District Court of Appeal, and argued that his conviction was not a qualifying offense to classify him as a PRR, under section section 775.082(9)(a)l. o, Florida Statutes (2005) — the same argument that Paul made to the Fourth District. Id.; Paul, 59 So.3d at 194. The First District agreed with Crapps that throwing a deadly missile into an occupied vehicle was not a qualifying offense for him to be classified as a PRR under the catch-all forcible felony provision. Crapps, 968 So.2d at 628.

The First District did not state its rationale for this conclusion. However, its parenthetical explanations of the cited cases offer some insight. The parenthetical explanation of Hudson v. State, 800 So.2d 627, 628-29 (Fla. 3d DCA 2001) states that the Third District held “that the crime proscribed by section 790.19 is not a forcible felony because it includes shooting or throwing at unoccupied buildings and, thus, does not, by statutory definition, necessarily involve physical force or violence against an individual^]” Crapps, 968 So.2d at 628 (emphasis added). The First District’s parenthetical explanation of State v. Hearns, 961 So.2d 211, 216 (Fla.2007), states that this Court reiterated “that the only relevant consideration in determining whether an offense constitutes a forcible felony is the statutory elements of the offense and that if ‘ “the use or threat of physical force or violence against any individual” ’ is not a necessary element of the offense, then the offense is not a forcible felony[.]” Id. The First District’s parenthetical explanation of Peterson Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007), acknowledges the Fourth District’s holding that the defendant “who was convicted of shooting a deadly missile into a dwelling, did not qualify as a PRR[.]” Id.

Based on the parenthetical explanations, we can conclude that the First District applied the Heams statutory elements test to Crapps’ offense of throwing a deadly missile into an occupied vehicle. Further, the First District implied that this offense did not qualify as a forcible felony under the Heams test because force against an individual is not a necessary element of at least one portion of the statute.

ANALYSIS

The certified conflict issue before this Court is whether, as a matter of law, shooting into an occupied vehicle under section 790.19, Florida Statutes (2001), qualified for enhanced sentencing under the forcible felony catch-all provision of the PRR statute, i.e. section 775.082(9)(a)l. o, Florida Statutes (2001). This issue involves a question of statutory interpretation and thus is subject to de novo review. See State v. Burris, 875 So.2d 408, 410 (Fla.2004) (“This question of statutory interpretation is subject to de novo review.”).

In Heams, this Court determined that only the statutory elements of an offense are to be considered in determining whether an offense qualifies as a forcible felony, regardless of the particular circumstances involved. 961 So.2d at 212. In order for this Court to apply the Heams analysis, we must first determine the statutory elements of section 790.19.

Section 790.19, Florida Statutes (2001) reads:

Shooting into or throwing deadly missiles into dwellings, public or private buildings, occupied or not occupied; vessels, aircraft, buses, railroad cars, streetcars, or other vehicles.— Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

At first glance, section 790.19 appears to be a conjunctive statute, where all elements merge to form one offense, because all offenses are listed in a single paragraph without the use of punctuation or subsections to indicate the legislative intent. If the statute were conjunctive in nature, then a violation of section 790.19 would never be considered a forcible felony, as a cursory reading of the statute may demonstrate circumstances where a physical threat of force to an individual would not be necessarily involved, such as shooting into an unoccupied building or shooting a vessel lying in the water. Although the entire statute is a single sentence, it punishes the shooting or throwing of deadly missiles at, within, or into four separate types of property, each including a modifier that specifies the particular instances where a defendant would be in violation of this section. These properties include: (1) public or private buildings, whether occupied or unoccupied; (2) public or private vehicles of any kind which are being used or occupied by any person; (3) watercraft which are lying in or plying the waters of this state; and (4) aircraft flying through the airspace of this state. The statute is written in a manner that proscribes distinct offenses, with the only connection being that the defendant wantonly and maliciously discharges an object in order to complete the offense. The fact that the statute uses two opposing modifiers, “occupied or unoccupied,” after referencing buildings protected by this statute, and more synonymous modifiers, “being used or occupied by any person,” after listing the vehicles protected under this statute, indicates that the statute is a disjunctive statute, which punishes multiple offenses, each with distinct elements.

In State v. Reddick, 568 So.2d 902, 903, n. 2 (Fla.1990), this Court cited the Florida Standard Jury Instructions in Criminal Cases in stating that, pursuant to section 790.19, Florida Statutes (1985), the offense of “[sjhooting into a dwelling ... has three elements: (1) the defendant shot a firearm, (2) into a public or private building, (3) wantonly or maliciously.” This Court subsequently interpreted section 790.19 as one which includes multiple offenses, each containing distinct elements, in the case of Valdes v. State, 3 So.3d 1067 (Fla.2009). In Valdes, the defendant was convicted of shooting into an occupied vehicle, in violation of section 790.19. Id. at 1068. In upholding the defendant’s conviction, we noted that pursuant to section 790.19 a conviction for shooting into an occupied vehicle “requires proof of the following three elements: (1) the defendant shot a firearm; (2) he or she did so at, within, or into a vehicle of any kind that was being used or occupied by any person; and (3) he or she did so wantonly or maliciously.” Id. at 1071. Therefore, we have previously concluded that section 790.19 is comprised of distinct and separate offenses, -with each offense containing unique elements which must be proven in order to secure a conviction of that particular offense.

Paul argues that even if section 790.19 proscribes a number of separate offenses, the “used or occupied” modifiers for vehicles are alternative definitions much like the “occupied or unoccupied” modifiers for buildings. He contends that the offense of shooting or throwing a deadly missile into a vehicle does not necessarily involve physical force or violence against an individual because a vehicle can be “used” without a person occupying the vehicle. In support of this argument, Paul cites the Webster Dictionary’s definition of “use,” as “the privilege or benefit of using something.” See Webster’s Ninth New Collegiate Dictionary 1299 (9th ed. 1983). Paul offers the example of a car being used to block a road or being driven to the store but left in the parking lot while the driver shops. However, a closer reading of the statutory language combined with the legislative history of the statute and this Court’s previous interpretations of the statute indicate otherwise.

Legislative History of Section 790.19

This statutory section dates back to 1881, when the “Senate and Assembly” passed an act “for the better Protection of Passengers on Railroad Cars and the Employees of Railroad Companies.” Ch. 3281, Fla. Laws (1881). Section 1 of this statute prohibited throwing missiles at or into locomotives or other railroad cars occupied by passengers or railroad employees. Section 2 prohibited throwing deadly missiles or shooting into a locomotive or railroad car belonging to or being used by a railroad company. The Revised Statutes of the State of Florida, published in 1892, included two provisions related to throwing missiles at a railroad car. Section 2696 prohibited throwing deadly missiles or shooting at locomotives and other railroad cars belonging to or being used by a railroad company. Section 2697 prohibited the throwing of any missiles at a locomotive or railroad car “while the same are occupied by passengers or employees.” § 2697, Fla.Rev.Stat. (1892).

In 1901, the Legislature added dwelling houses, occupied houses, and steamboats to the spaces to be protected from missiles and shooting. Chapter 4987 made it unlawful to shoot a firearm at or into a dwelling house or steamboat “plying the waters of this State.” Ch. 4987, §§ 1, 2, Laws of Fla. (1901). A second act prohibited shooting a deadly missile “at or into any dwelling or any other house which is being used or occupied” or “any railroad car, street car or vehicle of any kind which is being used or occupied by any person or persons.” Ch. 4988, §§ 1, 2, Laws of Fla. (1901). In 1906, chapter 3281 of the 1881 Act and chapters 4987 and 4988 of the 1901 Acts were consolidated into a single one-paragraph statute that prohibited shooting or throwing deadly missiles into “any dwelling or any other house which is being used or occupied,” or a “vehicle of any kind which is being used or occupied by any person or persons,” or “any steamboat lying in or plying the [state] waters.” § 3628, Fla. Gen.Stat. (1906).

The statute essentially remained the same until 1959, when it was amended to include “any public or private building, occupied or unoccupied” and added vessels, aircraft, buses, ships and barges to the list of vehicles that were protected. Ch. 59-458, § 1, Laws of Fla. While the 1959 amendment changed the building modifiers from “used or occupied” to “occupied or unoccupied,” the vehicle modifiers of “used or occupied” have remained unchanged since the 1906 version of the statute. The list of vehicles was amended again in 1974 to include “train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car.” Ch. 74-67, § 1, Laws of Fla. The 1974 amendment also inserted “or hurls or projects a stone or other hard substance” to the actions prohibited. Id. The statute has remained unchanged since then and has been a single paragraph since its consolidation in 1906.

We can glean several things from this history of section 790.19. First, the consolidated statute originally only applied to occupied buildings, as evidenced by the 1959 amendment that prohibited throwing deadly missiles into both unoccupied and occupied buildings. Second, the language “used or occupied” as originally used in the consolidated statute required the presence of a person. Because the Legislature changed this language regarding buildings, but not as to vehicles, it retains the same meaning for vehicles. Thus, the offense of throwing a deadly missile or shooting into a vehicle “which is being used or occupied by any person” necessarily involves the use of physical force or violence against an individual.

This conclusion is consistent with a case decided by this Court in 1909 that involved section 3628 of the Florida General Statutes of 1906 (the consolidated single paragraph statute). See Thomas v. State, 58 Fla. 120, 50 So. 954, 954 (1909). In Thomas, this Court concluded that an information was fatally defective because it did not allege that the railroad car that the defendant had shot into was being used or occupied by a person or persons. Id. at 122, 50 So. 954. This Court explained that “the shooting must be such as to endanger the lives or safety of those who may be in or using the car.” Id. See also Hamilton v. State, 30 Fla. 229, 11 So. 523, 524 (1892) (finding that both of the 1892 revisions to section 790.19 indicated a legislative objective to punish acts that endanger the lives of people who may be on the locomotive or in the car). Thus, this Court interpreted the terms “used or occupied” as interchangeable and found the presence of a person in the car to be an essential element of the offense of shooting or throwing a missile into a railroad car.

Where the Legislature does not define the words used in a statute, this Court first examines the plain language of the statute in order to determine the parameters of a specific element of an offense. See Marrero v. State, 71 So.3d 881, 886 (Fla.2011). The Legislature did not define the word “use” in section 790.19. Therefore, it is “ ‘appropriate to refer to dictionary definitions when construing [section 790.19]’ in order to ascertain the plain and ordinary meaning of [‘use’].” School Bd. of Palm Beach Cnty. v. Survivors Charter Schs., Inc., 3 So.3d 1220, 1233 (Fla.2009).

Our purpose in construing a statute is to give effect to the Legislature’s intent. When a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Instead, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.

State v. Burris, 875 So.2d 408, 410 (Fla.2004) (citations omitted). “Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991); See § 775.021(4)(b), Fla. Stat. (2001). “[T]o the extent that definiteness is lacking, a statute must be construed in the manner most favorable to the accused.” 576 So.2d at 1312. This rule of lenity is a canon of last resort and only applies if the statute remains ambiguous after consulting traditional canons of statutory construction. See Kasischke v. State, 991 So.2d 803, 814 (Fla.2008). We find that in light of the history and our previous interpretations of the statute, the statute is not subject to competing reasonable interpretations and the rule of lenity does not apply.

Paul cites the definition of “use” as the “privilege or benefit of using something.” Merriam Webster’s Third New International Dictionary 2523 (3rd ed. 1981). This definition would result in the statute being broader than the Legislature intended. Under this definition, vehicles would always be in use because someone would always have the “privilege or benefit” of using them. And thus, shooting into both occupied and unoccupied vehicles would be punishable under section 790.19. Paul argues that since the Legislature gave the alternative of buildings being occupied or unoccupied, it follows that it also gave the same meaning to the alternative of a vehicle being used or occupied. We find this argument unpersuasive. The Legislature amended the statute in 1959 and specifically designated that buildings are protected under this statute, whether they are occupied or unoccupied at the time of the offense. The Legislature did not add this language to the portion of the statute that protects vehicles. If the Legislature intended for “used” to signify a vehicle that is unoccupied, it would seem á simpler task to use the same modifier for vehicles that was used just a few lines earlier in the designation for buildings.

In holding that the offense of shooting into a vehicle under section 790.19 necessarily involves the threat of physical force or violence to an individual, we disapprove the apparent reasoning of the First District in Crapps, 968 So.2d 627 (Fla. 1st DCA 2007). The First District cited Hudson v. State, 800 So.2d 627 (Fla. 3d DCA 2001), and Peterson Paul v. State, 958 So.2d 1135 (Fla. 4th DCA 2007), to support its holding. The case below is distinguishable from both Hudson and Peterson Paul based on the crime charged. The defendants in Hudson and Peterson Paul were both charged under the portion of the statute that criminalized shooting into a building, whether occupied or unoccupied. 800 So.2d at 628, 958 So.2d at 1136. We acknowledge that the offense of shooting into a building is not a forcible felony under the statute as the statute does not require the.building to be occupied. As we have noted above, the designation “occupied or unoccupied” is a modifier defining the offense of shooting into a building. This modifier does not define the offense of shooting into a vehicle. As the Fourth District reasoned below, “[w]hen conducting the statutory elements analysis required by Hearns, although a court may not look to the facts of the case in deciding whether the use of force is involved, a court is not required to ignore the elements of the particular provision of the statute under which [the defendant] is charged.” 59 So.3d at 194. A forcible felony analysis for the crime of shooting into a building would not be useful to the offense of shooting into a vehicle as the offense of shooting into a vehicle under section 790.19 requires the presence of an individual and the offense of shooting into a building under the same statute does not. Thus, in light of our clarification of the elements for each offense listed in section 790.19, the First District’s holding in Crapps cannot stand.

In Crapps, the First District concluded that shooting into an occupied vehicle did not qualify for enhanced sentencing since the portion of the statute that outlines the elements of the charge of shooting into an occupied building does not require the threat of violence or force to an individual. 968 So.2d at 628. As we find that the offenses of shooting into a building and shooting into a vehicle are separate and distinct crimes for purposes of the Hearns statutory elements test, we find that a conviction under section 790.19 for shooting into an occupied vehicle is a basis for PRR sentencing pursuant to the forcible felony catch-all provision, as the statute necessarily involves the use or threat of physical force to an individual.

CONCLUSION

For the reasons expressed above, approve the Fourth District’s decision below. We disapprove the opinion in the conflicting case of Crapps.

It is so ordered.

PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.

POLSTON, C.J., concurs in result.

      . The defendant in that case was Peterson Paul, a different individual than Charles Paul who is the subject of the instant case.