D'Alemberte v. Anderson

• Decision Date: 26 May 1977
• Docket Number: No. 49851,49851
• Citation: 349 So.2d 164
• Parties: Talbot D'ALEMBERTE, Chairman, W. George Allen, LeRoy Collins, E. Harris Drew, John A. Grant, Jr., Lois Harrison, Charlotte F. Hubbard, James L. Pleitz and John D. Rawls, members of and constituting the State of Florida Commission on Ethics, Appellants, v. William (Dale) ANDERSON, Appellee.
• Court: Florida Supreme Court

Page 164

349 So.2d 164

Talbot D'ALEMBERTE, Chairman, W. George Allen, LeRoy Collins, E. Harris Drew, John A. Grant, Jr., Lois Harrison, Charlotte F. Hubbard, James L. Pleitz and John D. Rawls, members of and constituting the State of Florida Commission on Ethics, Appellants, v. William (Dale) ANDERSON, Appellee.

No. 49851.

Supreme Court of Florida.

May 26, 1977.

Rehearing Denied Sept. 7, 1977.

Robert L. Shevin, Atty. Gen., and William C. Sherrill, Jr. and Thomas A. Beenck, Asst. Attys. Gen., for appellants.

Walter M. Meginniss and William F. Crary of Crary, Buchanan & Meginniss, Stuart, for appellee.

SUNDBERG, Justice.

Appellant has prosecuted an appeal in this Court following a decision of the District Court of Appeal, First District, declaring Section 112.313(1), Florida Statutes (1973), unconstitutional. Jurisdiction is predicated on Article V, Section 3(b)(1), Florida Constitution.

In May of 1974, M & W Land, Inc., a foreign corporation, (M & W) filed a petition to annex certain lands it owned into the city of Stuart, Florida. M & W was involved in a joint venture with Rossmoor Corporation. Rossmoor was to develop the land. The annexation was controversial for several reasons. For one thing, the annexation was to result in a 20 percent increase in the size of the city of Stuart. For another, some members of the community considered the annexation an attempt by M & W to avoid planned unit development zoning regulations which had recently been enacted for Martin County, Florida, in which Stuart is situate.

In August, 1974, Rossmoor invited the City Commission and other city employees of Stuart to visit Laguna Hills, a residential community developed by Rossmoor in California. The invitation included eighteen spouses and guests of the public officials and employees. Rossmoor wanted the Commission to see an example of the planned community concept proposed for the land which was to be annexed. Commissioner Anderson (the appellee herein) and his wife agreed to make this trip on the weekend of August 23-25, 1974.

Before leaving for California, the City Commission asked the Stuart City Attorney whether, in his opinion, making the "fact finding" trip would violate the Sunshine Law. The City Attorney informed the Commission that he thought no violation was present. Appellee expressly declared that he did not intend to be swayed by Rossmoor's generosity. Nevertheless, newspaper articles printed before the trip was made demonstrated public concern over possible compromise of the Commission's neutrality by acceptance of the invitation.

Appellee and his wife made the trip to California. Rossmoor paid for their air fare to and from California, hotel accommodations, limousine service, evening meals, and one midday meal. The value of the trip accepted by appellee and his wife was $1,223.82. The total cost to Rossmoor for all who made the trip was $25,691.60.

After the Stuart City Commission passed two ordinances which annexed the land to be developed by Rossmoor, a complaint against appellee was filed with the appellant Commission on Ethics. A member of the Commission was appointed as hearing examiner, and a fact-finding hearing was held on November 21, 1974. Subsequent to the hearing, the examiner filed his report with the Commission. On December 13, 1974, the full Commission found that appellee violated Section 112.313(1), Florida Statutes (Supp.1974), by accepting the trip. This statute provides:

ACCEPTANCE OF GIFTS PROHIBITED. No officer or employee of a state agency, or of a county, city, or other political subdivision of the state, or any legislator, or legislative employee shall accept any gift, favor, or service, of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties.

By a 4 to 3 decision, the Commission voted to transmit the finding of violation to the Governor and to the State Attorney for the Twelfth Judicial Circuit with the recommendation that no further action be taken.

Appellee petitioned the First District Court of Appeal for certiorari review of the Ethics Commission's decision. Certiorari was granted. On June 30, 1976, the court issued an opinion declaring Section 112.313(1), Florida Statutes (1973) as amended by Ch. 74-177, § 3, Laws of Florida, unconstitutionally vague and quashing the decision of appellant Commission. Specifically, the District Court's opinion holding the former section unconstitutionally vague was directed at the phrase "that would cause a reasonably prudent person to be influenced in the discharge of official duties."

It should be noted that Section 112.313(1), Florida Statutes (Supp.1974), was amended by Ch. 75-208, § 4, Laws of Florida, and now appears in relevant part as Section 112.313(2)(a), Florida Statutes (1975). The portion of the statute found unconstitutional remains unchanged by the amendment.

Governmental conflicts of interest compose "an evil which endangers the very fabric of a democratic society." United States v. Mississippi Valley Generating Co., 364 U.S. 520, 562, 81 S.Ct. 294, 315, 5 L.Ed.2d 268 (1961). That fabric remains interwoven by citizens' confidence in the competence and integrity of their representatives. In order to assure that integrity and concomitant public confidence, situations which create potential conflicts of interest, as well as actual misconduct, must be avoided. See Section 112.311, Florida Statutes (1975). It was in pursuit of this laudable objective that the Legislature enacted the statute in controversy. Nonetheless, because we find the statute to be fatally ambiguous, we concur in the decision of the District Court of Appeal, First District.

An assault on the constitutionality of a statute vel non must necessarily succeed if the language does not convey sufficiently definite warnings of the proscribed conduct when measured by common understanding and practice. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Newman v. Carson, 280 So.2d 426 (Fla.1973); Zachary v. State, 269 So.2d 669 (Fla.1972); Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Smith v. State, 237 So.2d 139 (Fla.1970); Hunter v. Allen, 422 F.2d 1158 (5th Cir. 1970). Due process of law will not tolerate a statute which "forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning." Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); State v. Llopis, 257 So.2d 17 (Fla.1971); Brock v. Hardie, 114 Fla. 670, 154 So. 690 (Fla.1934).

Though easily enunciated, the vagueness test is often difficult to apply. The test is not an inflexible one. As Justice Frankfurter commented:

"There is no such thing as 'indefiniteness' in the abstract, by which the sufficiency of the requirement expressed by the term may be ascertained. The requirement is fair notice that conduct may entail punishment. But whether notice is or is not 'fair' depends upon the subject matter to which it relates. . . . That which may appear to be too vague and even meaningless as to one subject matter may be as definite as another subject matter of legislation permits . . . ." Winters v. New York, 333 U.S. 507, 524, 68 S.Ct. 665, 674, 92 L.Ed. 840 (1948).

What constitutes unconstitutional vagueness is itself vague. Thus, this Court has found the same or highly similar statutory language unconstitutionally vague when used in one particular statute, but sufficiently unambiguous when used in a different legislative act. In Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976), this Court upheld the constitutionality of Section 501.204, Florida Statutes (1975) (the Little FTC Act), which proscribed "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." ¹ We held that the potentially ambiguous language had acquired a sufficiently well-established meaning in trade usage, the common law, and federal trade law to meet the constitutional challenge of vagueness. To those members whose conduct was regulated by the Act, i. e., individuals who trade in the marketplace, the terms were imbued with particular meaning developed from usage in the trade. In addition, the statute itself expressly provided:

It is the intent of the legislature that in construing subsection (1) of this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

The federal courts had amassed an abundance of law construing the words under attack. That law provided this Court with additional guidance to meet a constitutional challenge of vagueness. Conversely, in Conner v. Joe Hatton, Inc., 216 So.2d 209 (Fla.1968), this Court held in part that Sections 573.17(3) (b) and (c), Florida Statutes (1967), ² which statutory sections employed language similar to that challenged in Rogers, supra, were invalid as an unconstitutional delegation of legislative power. The question arose in a suit filed by the appellant, as Commissioner of Agriculture of the State of Florida, to collect an assessment made against the appellee under the authority of Section 573.21(1), Florida Statutes, to pay the cost of administering a Sweet Corn Marketing Order promulgated by the Commissioner pursuant to Section 573.17(3). Appellee defended on the basis that Section 573.17(3), Florida Statutes, was unconstitutional on various grounds, one of which was that the act constituted an unlawful delegation of legislative power. In holding that the authorization of programs "for the prevention, modification or removal of trade barriers which obstruct the free flow of celery or sweet corn to market" (§ 573.17(3)(b), Fla.Stat.) was unconstitutional, we stated:

We are not directed to any decisions upholding...