A Florida court can enforce a non-compete or non-solicitation agreement, but only if it passes the tests in the state’s statute. The agreement must be in writing and signed. The business must prove a legitimate interest to protect, and the limits must be reasonably necessary. This page explains those tests and the options for a business and for a person who has been sued. Ayala Law PA handles business and contract disputes in Florida courts and arbitration, including for businesses in Hillsborough County and the Tampa Bay area, from its office in Tampa. The firm’s only office is in Tampa, and it serves businesses in Tampa, Hillsborough County and the wider Tampa Bay area from that location.
What a Non-Compete and a Non-Solicitation Agreement Are
A non-compete stops a person from working for, or starting, a competing business for a set time and area. A non-solicitation agreement stops a person from pursuing a company’s customers, clients or employees. A non-disclosure agreement works differently. It protects confidential information but does not stop someone from working in the same field.
These terms appear in employment contracts, sales of a business, partnership or shareholder agreements, and contractor agreements. Florida courts decide whether a restrictive covenant can be enforced under Florida statute and court decisions. They are not enforced just because the paper says so.
If a former employee or partner is competing with your business, or a demand letter just arrived, our team can review the agreement and the facts with you. Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
Who This Page Is For
Most readers reach this question after a problem. A key employee may have left with customers. A former partner may have opened a competing shop across town. A manager may have received a demand letter saying a former worker broke a restriction.
Sellers and partners also ask this question. They may be asked to accept new limits after a sale or buyout. Family members and managers acting for a company often need to understand their options before they respond. The signed paperwork and the timeline of the departure matter most in every one of these situations.
When Florida Courts Enforce a Restrictive Covenant
A non-compete can be enforced in Florida if it meets the statute’s tests. A court will not enforce a restrictive covenant unless it is in a writing signed by the person it binds, under Fla. Stat. § 542.335. Fla. Stat. § 542.335 reads: “In any action concerning enforcement of a restrictive covenant: (a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.”
The business must prove a legitimate business interest. The statute lists trade secrets, valuable confidential information and customer goodwill tied to an ongoing business. A restriction without such an interest is void and unenforceable.
The business must also show the restriction is reasonably necessary to protect that interest. If the restriction is overbroad or overlong, the court must modify it and grant only the relief reasonably necessary. Both presumptions can be rebutted.
Florida has a separate track for higher earners. A covered noncompete applies to employees or individual contractors who earn, or are reasonably expected to earn, a salary greater than twice the annual mean wage of the county in which the employer has its principal place of business (or, if the employer is not based in Florida, the county where the employee resides), under Fla. Stat. § 542.43, and it does not cover health care practitioners.
Non-Solicitation Agreements: What They Usually Cover
A customer non-solicitation clause stops a former worker from contacting or serving identified clients. An employee non-solicitation clause stops recruiting former coworkers. The scope often decides the case.
Key questions include which customers are covered, what counts as solicitation, and whether the limit ties to the worker’s real prior contacts. Records help answer these questions. Customer lists, sales history, account assignments and written messages show what the company actually protected. Gather them early, before accounts shift and memories fade.
Remedies Available to a Business Owner
A business can ask a court to block competing work or solicitation while the case goes on. For a covered noncompete, the law is firm. Under Fla. Stat. § 542.45, for a covered noncompete with a covered employee who maintains a primary place of work in this state, upon application by a covered employer seeking enforcement of the agreement, a court must preliminarily enjoin the covered employee from providing services to any business, entity, or individual other than the covered employer during the noncompete period. The court can modify or lift that injunction only if the employee proves by clear and convincing evidence, based on nonconfidential information, one of the grounds the statute lists. Examples: the employee will not do similar work or use the employer’s confidential information or customer relationships, or the employer failed to pay the agreed consideration after a reasonable opportunity to cure.
Injunctions are not the only remedy. A prevailing covered employer may recover all available monetary damages for all available claims.
Fee clauses matter too. Under Fla. Stat. § 57.105, if a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract, for contracts entered into on or after October 1, 1988.
Defenses and Remedies for Someone Who Has Been Sued
If you have been sued, several defenses may apply. Start with overbreadth. Ask whether the time, area or activity goes further than any legitimate interest.
Next, check whether the business had a legitimate interest at all. Did it have trade secrets, confidential information or real customer goodwill to protect? Then review formation. Was the agreement signed in writing? For covered noncompetes, the employee must have been advised in writing of the right to seek counsel, given the agreement at least 7 days before the offer expired, and must acknowledge in writing that in the course of employment they will receive confidential information or customer relationships. The agreement must also reduce the noncompete period day-for-day by any nonworking garden leave notice period, if applicable.
Florida courts also review fairness. A court must find both procedural and substantive unconscionability before refusing to enforce a term, as Basulto v. Hialeah Automotive explains. In Basulto v. Hialeah Automotive, the Florida Supreme Court concluded that both the procedural and substantive aspects of unconscionability must be present, although not necessarily to the same degree, and that both should be evaluated interdependently rather than as independent elements. Where a restriction is too broad, the court can modify it instead of voiding it. Counterclaims may also be possible if the enforcement effort is itself improper.
Not sure what your next step is?
Talk it through with our team — we can walk you through how a situation like yours is usually handled and what your options are.
How a Non-Compete Case Typically Moves Forward
Step 1: Review the signed agreement, any amendments, the employment or sale papers, and the facts of the departure.
Step 2: Identify the interest the business is trying to protect. Then judge whether the covenant is likely to be enforced as written or narrowed.
Step 3: Exchange demand and response letters. This step can resolve the matter or narrow the dispute.
Step 4: If the matter is urgent, ask for a temporary injunction.
Step 5: Move into discovery, which can include depositions, customer records and electronic messages. From there, the case may settle, go to mediation or proceed to trial.
Several rules shape this path. Under Fla. Stat. § 44.102, a court must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless an exception in the statute applies. Under Fla. Stat. § 45.061, an offer made under that section stays open 45 days unless withdrawn, but the section does not apply to causes of action that accrue after its effective date. Fla. Stat. § 45.061 reads: “The offer shall remain open for 45 days unless withdrawn sooner by a writing served on the offeree prior to acceptance by the offeree.” Venue follows Fla. Stat. § 47.011: actions are brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located, and this section does not apply to actions against nonresidents. If the contract requires arbitration, Fla. Stat. § 682.02 provides that an agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.
Timelines vary with the court calendar and the need for emergency relief. A demand letter or lawsuit can set a response clock, so review it right away.
Why Ayala Law PA for Business-Side Restrictive Covenant Disputes
Ayala Law PA focuses on business litigation, commercial litigation, contract disputes, shareholder disputes, construction litigation, real estate litigation and international trade litigation in Florida courts and arbitration. Eduardo A. Maura is the responsible attorney for this page.
The firm’s office is at 1646 W Snow Ave, Tampa, Florida. The firm serves businesses and entrepreneurs in Tampa, Hillsborough County, Brandon, Riverview, Plant City, Temple Terrace and the wider Tampa Bay area from its only office, at 1646 W Snow Ave in Tampa.
Our team supports the attorneys with document review, records organization and case scheduling. That support helps keep a fast-moving injunction matter organized.
Frequently Asked Questions
Is a non-compete enforceable in Florida?
It can be, if it is in writing, signed, backed by a legitimate business interest and reasonably necessary in time and scope.
Can a court narrow an overbroad non-compete?
Yes. If a restraint is overbroad or overlong, the court must modify it and grant only the relief reasonably necessary.
Is a non-solicitation agreement the same as a non-compete?
No. A non-solicitation agreement limits soliciting customers or employees, while a non-compete limits competing work for a set time and area.
Covered noncompete agreements carry a mandatory preliminary injunction rule.
Where can a non-compete lawsuit be filed in Florida?
Under Florida’s venue statute, it is filed in the county where the defendant resides, where the claim arose, or where the property is located.
Talk Through Your Non-Compete Situation
If a former worker or partner is competing with your company, or a demand letter just arrived with a response date, you are facing a serious business problem on short notice. Our team can review the signed agreement and the facts of the departure with you. Call (305) 570-2208 or send your questions through our contact page.
