Florida Real Estate Lawyers Blog
By: Daniel T. Pascale, Esq.
Offices located in Delray Beach and Coral Gables, FL
In determining the reasonableness in time of a postterm restrictive covenant (a.k.a. a non compete agreement) not predicated upon the protection of trade secrets, a court must apply the following rebuttable presumptions:
In the case of a restrictive 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: (1) the assets of a business or professional practice; (2) the shares of a corporation; (3) a partnership interest; (4) a limited liability company membership; or (5) an equity interest, of any other type, in a business or professional practice, a court must presume reasonable in time any restraint six months or less in duration and must presume unreasonable in time any restraint more than two years in duration
In the case of a restrictive covenant sought to be enforced against a former distributor, dealer, franchisee, or licensee of a trademark or service mark and not associated with the sale of all or a part of: (1) the assets of a business or professional practice; (2) the shares of a corporation; (3) a partnership interest; (4) a limited liability company membership; or (5) an equity interest, of any other type, in a business or professional practice, a court must presume reasonable in time any restraint one year or less in duration and must presume unreasonable in time any restraint more than three years in duration
In the case of a restrictive covenant sought to be enforced against the seller of all or a part of: (1) the assets of a business or professional practice; (2) the shares of a corporation; (3) a partnership interest; (4) a limited liability company membership; or (5) an equity interest, of any other type, in a business or professional practice, a court must presume reasonable in time any restraint three years or less in duration and must presume unreasonable in time any restraint more than seven years in duration3
Thus, in the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, a court must presume unreasonable in time any restraint more than two years in duration, and where there is no evidence in the record to rebut this presumption, an injunction entered in excess of two years is error.
Under Florida law, whether a noncompete covenant is reasonable or overbroad is a question of fact, not of law. If you have specific questions about your Florida non-compete agreement, please feel free to contact our law firm for help with your matter.