The Enforceability of Certain Non-Compete Agreements in Florida

Florida Statutes section 542.335 governs valid restraints of trade or commerce, and provides that enforcement of non-compete clauses are not prohibited so long as same are reasonable in time, area and line of business.  A court will not, however, enforce a non-compete agreement or clause unless it is set forth in writing and signed by the party against whom enforcement is sought.  See Florida Statutes § 542.335(1)(a) (2012). 

In the case of a non-compete covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or  a part of: (a) the assets of a business or professional practice, or (b) the shares of a corporation, or (c) a partnership interest, or (d) a limited liability company membership, or (e) an equity interest, of any other type, in a business or professional practice, a court presumes reasonable in time any restraint 6 months or less in duration and presumes unreasonable in time any restraint more than 2 years in duration.  See Florida Statutes § 542.335(1)(d)1 (2012).  These presumptions, however, are rebuttable.  Whether the restraints in area and line of business are reasonable will be in the discretion of the court.

Florida law favors the enforcement of non-compete agreements, and mandates that courts construe restrictive covenants, such as a covenant not to compete, in favor of providing reasonable protection to all legitimate business interest(s) established by the person seeking enforcement of the covenant.  See Florida Statutes § 542.335(1)(h) (2012).  

Indeed, if a person seeking enforcement of the restrictive covenant establishes that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the same is overbroad, overlong, or otherwise not reasonably necessary to protect the established business interest(s).  If the restraint in question is overboard, overlong, or otherwise not reasonable necessary to protect the legitimate business interest or interests, a court is then obligated by Florida law to modify the restraint and grant only the relief reasonably necessary to protect such interest(s).  See Florida Statutes § 542.335(1)(c) (2012).

Mark Schecter :