Although there have been subsequent revisions, the Florida legislature adopted its current version of its statute governing restrictive covenants, Florida Statute § 542.335, during the 1996 legislative session. Section 542.335 includes a "legitimate business interests" standard, reflecting the legislature's view that "if the proponent of the restriction demonstrates that the restraint is reasonably necessary to protect one or more 'legitimate business interests," then, absent a strong defense, the court must accord such interest or interests an appropriate measure of protection." Henao v. Professional Shoe Repair, 929 So. 2d 723, 727 (Fla. 5th DCA 2006), quoting John A. Grant & Thomas Steele, Restrictive Covenants: Florida Returns to the Original "Unfair Competition" Approach to the 21st Century, 70 Fla. B.J. 53, 53-56 (Nov. 1996). By adopting the legitimate business interests standard, the legislature rejected the "contract approach" to enforcing restrictive covenants. Id.
One issue the arises from time to time in non-compete litigation is what types of agreements fall within the scope of Florida's non-compete statute. According to Grant & Steele's article in 1996, restrictive covenants governed under section 542.335 includes "all contractual restrictions on competition, such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints on trade." Henao, 929 So. 2d at 726, citing Grant & Steele, supra, at 55 (noting that section 542.335 is broadly "aimed at making enforcement of bona fide restrictive covenants easier and more certain.") See also, Environmental Services, Inc. v. Carter, 9 So. 3d 1258, 1262 (Fla. 5th DCA 2009)(holding that Fla. Stat. § 542.335 employs the term "restrictive covenants" and includes all contractual restrictions such as noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other contractual restraints on trade.)
Section 542.335 casts a wide net. Not only does its provisions apply to traditional non-compete agreements, but instead applies to any agreement that acts as a restraint on trade. These include noncompetition agreements, confidentiality agreements and exclusive dealing agreements. This is significant, as section 542.335 has many presumptions that work for and against a party seeking to enforce such agreements.
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