City of Pompano Beach v. Capalbo

Decision Date08 August 1984
Docket NumberNo. 82-2496,82-2496
PartiesCITY OF POMPANO BEACH, Petitioner, v. Richard Maynard CAPALBO, Respondent.
CourtFlorida District Court of Appeals

Philip J. Montante, Jr., City Prosecutor, Pompano Beach, for petitioner.

Dorothy V. Maier of Wagner & Kollra, P.A., Fort Lauderdale, for respondent.

James R. Wolf, Tallahassee, as amicus curiae by Florida League of Cities, Inc., on behalf of petitioner.

James K. Green of Green, Eisenberg & Cohen, West Palm Beach, as amicus curiae by American Civil Liberties Union of Florida on behalf of respondent.

GLICKSTEIN, Judge.

On September 12, 1981, at approximately 2:55 a.m. a City of Pompano Beach police officer saw respondent Richard M. Capalbo sleeping in his automobile, which was parked in a city parking lot. Respondent was arrested and charged by information with violating City of Pompano Beach Municipal Code Section 31.66. This ordinance provides as follows:

It shall be unlawful for any person to lodge or sleep in, on, or about any automobile, truck, camping or recreational vehicle or similar vehicle in any public street, public way, right of way, parking lot or other public property, within the limits of the city.

Prior to trial, respondent moved to dismiss on the grounds the subject ordinance was facially vague and overbroad and opened the door to arbitrary enforcement. The Broward County Court granted respondent's motion, holding the ordinance unconstitutional, and the circuit court affirmed. The circuit court held that while the ordinance was "not overly vague or ambiguous" it placed "too great a burden on our law enforcement officers and our citizens alike for uniform enforcement." Thereafter, the city petitioned this court for writ of certiorari.

Having considered the submissions of the parties, amicus curiae briefs of the Florida League of Cities and American Civil Liberties Union, and case authorities, we conclude the circuit court did not depart from the essential requirements of law in affirming the county court's decision. Section 31.66 is both unconstitutionally vague and overbroad.

Because a municipal council, like the legislature, would not knowingly enact an unconstitutional measure, appellate courts will indulge every reasonable presumption in favor of an ordinance's constitutionality. Kass v. Lewin, 104 So.2d 572 (Fla.1958). We would like, if we could, to accept the reasoning of our learned colleague's dissent, but we cannot. We agree with him that the subject ordinance would probably be constitutional if it proscribed only lodging in, on or about motor vehicles as further described in the ordinance. But the ordinance also proscribes sleeping in, on or about motor vehicles, employing the disjunctive "or." This language is the source of the ordinance's constitutional infirmity, as we adumbrate below. A maxim that carries as much weight as the presumption of an enactment's constitutionality cautions us that operative language may not be regarded as surplusage. Here we cannot disregard inclusion of the words "or sleeping" in the ordinance's statement of the acts it proscribes, and appellant was arrested for sleeping, not lodging, in his motor vehicle. A court is not a super-legislature that second guesses what a legislature really meant to say; the legislated language speaks for itself.

There is great similarity between the City of Pompano Beach sleep-in-a-vehicle ordinance and the St. Petersburg ordinance struck down in State v. Penley, 276 So.2d 180 (Fla. 2d DCA), cert. denied, 281 So.2d 504 (Fla.1973). The St. Petersburg ordinance provided that "[N]o person shall sleep upon or in any street, park, wharf or other public place." Id. at 180. The Penley court likened the St. Petersburg ordinance to vagrancy laws that draw no distinctions between conduct calculated to harm and conduct that is essentially innocent, id. at 181, and held the ordinance void for vagueness because, (1) in the words of United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, 996 (1954), it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," 276 So.2d at 181; and (2) "the ordinance, as written, may result in arbitrary and erratic arrest and convictions. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110." 276 So.2d at 181.

In striking down an ordinance which prohibited loitering if it impeded or tended to impede passage, a sister court stated the constitutional criteria as follows:

It is well settled that a law denies due process guaranteed by the Fourteenth Amendment of the United States Constitution if (1) it is so vague that a person of ordinary intelligence is not put on notice of the conduct which is prohibited, State v. Buchanan, Fla. 1966, 191 So.2d 33, 34; Palmer v. City of Euclid, 1971, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98; Papachristou v. City of Jacksonville, 1972, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, or (2) if the law is so overbroad that it makes common conduct criminal and provides the police with unfettered discretion to arrest. Headley v. Selkowitz, Fla.1965, 171 So.2d 368; State v. Penley, Fla.App. 1973, 276 So.2d 180, 181; Lanzetta v. New Jersey, 1939, 306 Ciccarelli v. City of Key West, 321 So.2d 472, 473 (Fla. 3d DCA 1975). The United States Supreme Court has summed up the void-for-vagueness doctrine in similar language:

U.S. 451, 453, 59 S.Ct. 618 , 83 L.Ed. 888.

It is settled that, as a matter of due process, a criminal statute that "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute," United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), is void for vagueness. See generally Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). This appears to be especially true where the uncertainty induced by the statute threatens to inhibit the exercise of constitutionally protected rights. Id., at 109, 92 S.Ct., at 2299; 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Keyishian v. Board of Regents, 385 U.S. 589, 603-604, 87 S.Ct. 675, 683-684, 17 L.Ed.2d 629 (1967).

Colautti v. Franklin, 439 U.S. 379, 390-91, 99 S.Ct. 675, 683, 58 L.Ed.2d 596, 606 (1979). Moreover, in the recent case of Kolender v. Lawson, 461 U.S. 352, ----, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903, 909-910 (1983), the Supreme Court has indicated that a statute that lends itself to arbitrary enforcement can be void for vagueness even if it gives fair notice of what conduct it prohibits:

Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of vagueness doctrine "is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement." Smith, supra, 415 U.S. at 574, 94 S.Ct., at 1247-1248. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections." Id., at 575, 94 S.Ct., at 1248. [Footnote omitted.]

The Kolender Court found unconstitutionally vague a California statute that failed to make clear what would constitute "credible and reliable" identification of persons stopped for loitering on the streets by a police officer who had articulable suspicion. Id. at ----, 103 S.Ct. at 1856, 75 L.Ed.2d at 906. This defect left the decision of whether or not to arrest to "the whim of any police officer." Id. ----, 103 S.Ct. at 1859, 75 L.Ed.2d at 910. The Court stated its holding "rests on our concern for arbitrary law enforcement and not on the concern for lack of actual notice." 461 U.S. at ----, 103 S.Ct. at 1859, 75 L.Ed.2d at 910.

In the instant case, the subject ordinance gives ample notice of the conduct that is proscribed, yet is void for vagueness because it leaves in the unbridled discretion of the police officer whether or not to arrest one asleep in a motor vehicle on a public street or way or in a parking lot. A wide range of persons may violate the sleep-in-the-vehicle statute, from the tired child asleep in his car-seat while a parent drives or while the car is parked, to the alternate long-distance driver asleep in the bunk of a moving or parked tractor-trailer, to the tired or inebriated driver who has taken widely disseminated good counsel and chosen to go to sleep in his parked car rather than take his life or others' lives in his hands, to the latterday Okie who has made his jalopy his home. The officer encountering these varied situations is left free to decide for himself whether to enforce the ordinance.

On the basis of not dissimilar reasoning the ordinance is also unconstitutionally overbroad. By its language the ordinance criminalizes conduct which is beyond the reach of the city's police power inasmuchas conduct "in no way impinges on the rights or interests of others." Lazarus v Certiorari is denied.

Faircloth, 301 F.Supp. 266, 272 (S.D.Fla.1969). Effective law enforcement does not require that citizens be at the "mercy of the officers' whim or caprice," Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949); and the just concerns of the public regarding crime must take rational expression and not become a mindless fear that erodes the rights of a free people, Hayes v. Municipal Court of Oklahoma City, 487 P.2d 974, 980 (Okla.Crim.App.1971). A penal statute that brings within its sweep conduct that cannot conceivably be criminal in purpose or effect cannot stand....

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