City of Daytona Beach v. Del Percio

• Decision Date: 30 August 1985
• Docket Number: No. 65384,65384
• Citation: 476 So.2d 197,10 Fla. L. Weekly 458
• Parties: 10 Fla. L. Weekly 458 CITY OF DAYTONA BEACH, Petitioner, v. Leonard DEL PERCIO and Laura Iris Moore, Respondents.
• Court: Florida Supreme Court

Page 197

476 So.2d 197

10 Fla. L. Weekly 458

CITY OF DAYTONA BEACH, Petitioner, v. Leonard DEL PERCIO and Laura Iris Moore, Respondents.

No. 65384.

Supreme Court of Florida.

Aug. 30, 1985.

Rehearing Denied Oct. 28, 1985.

Frank B. Gummey, III, City Atty., Robert G. Brown and Reginald E. Moore, Daytona Beach, for petitioner.

Richard L. Wilson, Orlando, and Eric A. Latinsky, Daytona Beach, for respondents.

EHRLICH, Justice.

We have before us for review a decision of the Fifth District Court of Appeal, Del Percio v. City of Daytona Beach, 449 So.2d 323 (Fla. 5th DCA 1984). The decision expressly and directly conflicts with the decision in Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984), upholding an ordinance similar to the one invalidated in this case. We have jurisdiction. Art. V, § (3)(b)(3), Fla. Const.

The City of Daytona Beach enacted ordinance 81-334, creating section 5-25 of the City Code prohibiting certain behavior in bars. The relevant portions of the ordinance include:

(b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages.

....

(d) No person maintaining, owning or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts below the top of the areola or any simulation thereof within the establishment dealing in alcoholic beverages.

City police issued a number of citations enforcing the ordinance, and respondents were among those cited under subsection (d). Del Percio was part owner of a lounge where a woman danced topless. Del Percio filed an unsuccessful motion to dismiss the charges against him in county court challenging the constitutionality of the ordinance, then pled nolo contendere reserving his right to appeal. Moore was in charge of a bar where the dancer wore flesh-colored tape over her areolae. She also unsuccessfully moved for dismissal on constitutional grounds, and was convicted in a non-jury trial. Both defendants appealed to the circuit court where their convictions were affirmed. The district court granted certiorari and reversed the convictions. The majority held that the ordinance was "vague, overbroad, not fairly enforceable, and thus unconstitutional." 449 So.2d at 323. The court found that the ordinance had been construed several different ways by the lower courts, demonstrating the vagueness of the language and distinguishing the case from other cases where similar language was found constitutional. It also found that, since all exposure of the lower part of the breast was prohibited, the ordinance was overbroad because socially acceptable attire such as swimsuits and low-cut evening gowns fell within the prohibition.

We find that the ordinance is neither vague nor overbroad, and therefore quash the decision of the district court.

VAGUENESS

The ordinance prohibits public exposure of a woman's breasts "below the top of the areola." Among the variant trial court interpretations of this language noted by the district court in support of its finding of vagueness are the following: only the areola itself need be covered; the areola must be covered by "a brassiere-type cover made of an opaque fabric which does not and cannot adhere directly to the breasts without the aid of supporting straps;" all portions of the breast below the top of the areola must be covered (this is the interpretation favored by the City); and all portions of the breast below the top of the areola must be covered, with the exception of "those types of attire which are commonly accepted by modern society." 449 So.2d at 324-25. In her dissent, Judge Sharp suggested the ordinance be narrowly construed as "barring only the exposure of the female breast encompassing the area of the areola and that portion of the breast directly below it." 449 So.2d at 331 (Sharp, J., dissenting) (emphasis in original). Judge Sharp's reason for suggesting this construction is enlightening--in order to save a law from constitutional invalidity, a court should seek to interpret the law to avoid the problem. ¹

The fact that several interpretations of an ordinance may be possible does not render a law void for vagueness. "Words inevitably contain germs of uncertainty" but when regulations "are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, [there is no] sacrifice to the public interest' ". Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973) (quoting United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973).

The district court found that the variant interpretations of the ordinance demonstrated it was vague and therefore unconstitutional. We conclude, on the other hand, that the plain meaning of the ordinance is clear, and that the variant interpretations are merely the result of various courts attempting to limit the reach of the ordinance to save it from constitutional invalidity. As we explain below, there is no need to limit the plain meaning of the ordinance because it raises no constitutional problem which may be addressed in this case. The plain meaning of the statute is, as the City suggests, that no portion of the breast directly or laterally below the top of the areola may be exposed to public view.

OVERBREADTH

Obviously, the clear meaning of the ordinance reaches many forms of socially acceptable attire. Indeed, there are probably many styles which would appear quite demure but which still manage to expose that which is forbidden here. However, the City has the power to regulate as it has, vis-a-vis the constitutional rights which may be raised by the parties in this case.

a. Twenty-first Amendment

In New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), the United States Supreme Court sustained the constitutionality of a state regulation similar to the one at issue here. ² The basis of the challenge was that the first amendment protected nude barroom dancing. While the Court conceded that such behavior might involve the "barest minimum" of first amendment protection, it concluded that

the elected representatives of the State of New York have chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of a reasonable restriction upon establishments which sell liquor for on-premises consumption. Given the "added presumption in favor of the validity of the state regulation" conferred by the Twenty-first Amendment, California v. LaRue, 409 U.S. at 118 [93 S.Ct. 390 at 397, 34 L.Ed.2d 342] [ (1972) ], we cannot agree with the New York Court of Appeals that the statute violates the United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by the State's exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty-First Amendment makes that a policy judgment for the state legislature, not the court.

452 U.S. at 718, 101 S.Ct. at 2601.

The power vested in the states by the twenty-first amendment thus outweighs a tenuous first amendment interest. However, respondents here argue that the City is in no position to exercise the state's twenty-first amendment powers.

The state's power to regulate conditions in licensed premises is derived from its power to totally prohibit sales: "The state's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs." Bellanca, 452 U.S. at 717, 101 S.Ct. at 2601. While the City of Daytona Beach does not have the power to ban liquor sales, the powers of the state devolve to municipalities to "exercise any power for municipal purposes except as otherwise provided by law." Art. VIII, § 2(b), Fla. Const. " 'Municipal purpose' means any activity or power which may be exercised by the state or its political subdividions." § 166.021(2), Fla.Stat. (1983). "[T]he legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except: .... (c) Any subject expressly preempted to state or county government by the constitution or by general law." § 166.021(3). The Florida Constitution and the statutes thus imbue the City with the state's full police powers, including those under the twenty-first amendment, except those powers expressly preempted.

There is no express preemption of the power to regulate behavior in bars. The fact that the power to ban liquor sales has been preempted by the local option provision of article VIII, section 5, Florida Constitution, does not mean that the regulatory police powers derived from the power to ban are also preempted. See City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957). Likewise, chapter 847, Florida Statutes (1983), which expressly preempts county and municipal authority to regulate, inter alia, obscene exhibitions, does not preempt the authority to regulate nonobscene exposure of the female breast below the top of the areola. No argument can be made that the instant ordinance regulates obscene behavior, since to do so would destroy any claim to protection under the first amendment. Instead, as discussed infra, what is regulated is nonobscene behavior which very easily can degenerate into obscene behavior.

Florida municipalities (and counties, see Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984)) thus have the authority to exercise the regulatory power of the twenty-first amendment recognized in New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981).

b....