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provides in relevant part that “any person who . . . intentionally intercepts,
[or] endeavors to intercept, . . . any . . . oral . . . communication . . . is
guilty of a felony of the third degree.” The legislature defines intercept as
“the aural or other acquisition of the contents of any . . . oral
communication through the use of any electronic, mechanical, or other
device.” § 934.02(3), Fla. Stat. (2019).
These statutes prohibit the audio recording component that appellants
have consistently insisted on including as part of their appraisal process.
See Guilder v. State, 899 So. 2d 412, 419 (Fla. 4th DCA 2005) (holding that
tape recording of a face-to-face conversation by a participant, without prior
consent from all participants, constitutes an unlawful interception of an
oral communication under section 934.03); see also Horning-Keating v.
Emps. Ins. of Wausau, 969 So. 2d 412, 418 n.4 (Fla. 5th DCA 2007)
(reiterating the holding in Guilder).
Relying on State Farm Florida Insurance Co. v. Chirino, 300 So. 3d 1240
(Fla. 3d DCA 2020), Silversmith reversed a court order holding that the
parties could not record, through audio nor video, a home inspection
unless all participants consented, thus allowing one to openly record a
visitor within her own home. Silversmith, 324 So. 3d at 518. Silversmith
reached its result by misplacing its reliance on Chirino. In Chirino, the
trial court held that an insured was allowed to make both a video and
audio recording of the insurer’s appraiser’s inspection over objection. 300
So. 3d at 1242. Yet in that case, unlike here, the insurer advanced the
argument under article I, section 23 of the Florida Constitution that the
audio recording could not be made without consent because the
appraiser’s right to privacy was being invaded. Id. at 1241. The Third
District rejected that argument, noting, “Florida’s Constitutional right to
privacy protects persons from governmental, not private intrusion.” Id. at
1242. The application of section 934.02 was never raised in that case.
As the basis for its ruling, the Silversmith court stated that the insurer
had not identified anything that would validly preclude a homeowner from
openly recording an inspection of her own home. 324 So. 3d at 518. As a
result, Silversmith is in direct conflict not only with the statute but with
our prior decisions in both Guilder and Horning-Keating. Silversmith
merely made passing reference to section 934.03 in its analysis, while
noting that “for an oral conversation to be protected under section 934.03
the speaker must have an actual subjective expectation of privacy, along
with a societal recognition that the expectation is reasonable.” Id. (quoting
State v. Smith, 641 So. 2d 849, 852 (Fla. 1994)). However, by its express
terms, chapter 934 prohibits what the appellees want to do.