Downer v. State

• Decision Date: 20 September 1979
• Docket Number: 51727,Nos. 51726,57825,s. 51726
• Citation: 375 So.2d 840
• Parties: Carol DOWNER, Appellant, v. STATE of Florida, Appellee. Linda CURTIS et al., Appellants, v. STATE of Florida, Appellee. Linda CURTIS, Virginia Cassidy, Carol Downer, and Janice Cohen, Relators, v. Sid J. WHITE, Clerk of the Supreme Court of Florida, Respondent.
• Court: Florida Supreme Court

Page 840

375 So.2d 840

Carol DOWNER, Appellant, v. STATE of Florida, Appellee.

Linda CURTIS et al., Appellants, v. STATE of Florida, Appellee.

Linda CURTIS, Virginia Cassidy, Carol Downer, and Janice Cohen, Relators, v. Sid J. WHITE, Clerk of the Supreme Court of Florida, Respondent.

Nos. 51726, 51727, 57825.

Supreme Court of Florida.

Sept. 20, 1979.

Rehearing Denied Oct. 29, 1979.

Betty Owen Stinson and Diane K. Kiesling of Stinson & Kiesling, Tallahassee, Gordon H. Rubin, Los Angeles, Cal., and Margaret Good, Asst. Public Defender, Tallahassee, for appellants.

Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.

Sidney L. Matthew and Jerome M. Novey, Tallahassee, for amicus curiae, American Civil Liberties Union of Florida, Tallahassee Chapter.

Kent Spriggs, Tallahassee, for amicus curiae, NOW Legal Defense and Education Fund.

ON REHEARING GRANTED

SUNDBERG, Justice.

This cause is a direct appeal from an order of the County Court for Leon County, Florida, upholding the constitutionality of section 810.08(1), Florida Statutes (Supp.1976), under the Florida and Federal Constitutions. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution.

Appellants Carol Downer, Linda Curtis, Virginia Cassidy and Janice Cohen are members of an organization known as Women Acting Together to Combat Harassment (WATCH). At approximately 10:30 p. m. on March 6, 1977, appellants and approximately twenty-six others from the organization arrived at Tallahassee Memorial Hospital (TMH) ¹ for the purpose of conducting a "consumer inspection" of the hospital's maternity facilities. The testimony given at appellants' trial shows that the group was accompanied by Paul Henschel, a cameraman from WFSU-TV who filmed portions of the "inspection." Appellants entered through the front door, which was unlocked. Visiting hours at the hospital were over for the day. As the group proceeded through the lobby and toward the ground floor elevators they were observed by several TMH employees, but none of these persons informed appellants that visiting hours had ended or otherwise tried to stop them. Appellants did, however, pass a sign in the lobby which read "VISITING HOURS ARE OVER. IMMEDIATE FAMILY CHECK AT DESK." Although this sign is generally placed in the center of the main lobby facing the front entrance at 8:30 p. m., the conclusion of visiting hours, it is unclear whether it was in this position on the night in issue. There was testimony that a cleaning person moved the sign from the center of the main lobby entrance to a side hall just off the main hallway. However, there was a sign on the wall between the ground floor elevators which reflected that visiting hours ended at 8:30 p. m., and a similar sign was in the passenger elevator. Part of the WATCH group proceeded to the fourth floor maternity section by the passenger elevator; others used the stairway. Upon reaching the fourth floor the women divided into two groups, one to "inspect" the nursery and one to "inspect" the labor and delivery area. A sign on the door to the postpartum area, which led both to the nursery and to labor and delivery, reflected that visiting hours were over. A telephone was on the wall near the postpartum doorway, and a sign instructed persons to call the nurses' station before entering. Ignoring the signs, appellants opened the door leading to the postpartum area and proceeded down the hallway to a room designated "Nursery # 2." Appellants Downer and Cassidy entered the nursery through a door marked "NO ADMITTANCE," purportedly to determine what cleaning solution was used on the babies, whether the infants had scalp infections from the fetal heart monitor, and how tightly they were gowned. Appellants Curtis and Cohen apparently remained in the hallway inside the postpartum area. There was no allegation that Ms. Downer or Ms. Cassidy touched or otherwise harmed the babies. When asked to leave the nursery by a nurse, the two women complied. A hospital security guard detained a woman at the postpartum nurses' station. When asked to identify herself, the woman wrote "Janice Cohen Femme" on a piece of paper and handed it to the guard. Upon request, appellants and the others exited the postpartum area. The police were not summoned at that time and appellants left the hospital. The WATCH group thereafter reported the results of the "inspection" to the media and to TMH. Two days later, on March 8, 1977, appellants were charged with willfully entering "a structure or conveyance . . . without being authorized, licensed, or invited," in violation of section 810.08(1), Florida Statutes (Supp.1976), Florida's trespass statute. Appellants filed motions to dismiss the informations, alleging essentially that section 810.08(1) is unconstitutionally vague and overbroad. It was also asserted that the enactment was unconstitutionally applied to appellants. The motions were denied, and appellants were tried and found guilty of trespass. Downer and Cassidy were sentenced to sixty days in the county jail and fined $1,000 each. Cohen and Curtis were given thirty-day sentences and fined $500.

Appellants have raised a plethora of issues on appeal, but only the following warrant extended discussion: (1) that section 810.08(1), Florida Statutes (Supp.1976), is unconstitutionally vague and overbroad; (2) that the trial judge improperly excluded evidence which purportedly would have shown that appellants' prosecution constituted a selective enforcement of section 810.08(1); (3) that the trial judge should have granted appellants' motion for judgment of acquittal; (4) that the trial court erred in denying Cohen's motion for severance; and (5) that the admission into evidence of a photograph of Cohen and extrajudicial identifications based upon the photograph constituted reversible error. For the following reasons we find these and the remaining issues raised by appellants to be without merit and, accordingly, we affirm their convictions and sentences.

The initial issue for our consideration is the allegation that section 810.08(1), Florida Statutes (Supp.1976), is vague and overbroad. The challenged enactment provides:

Trespass in structure or conveyance.

(1) Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance or, having been authorized, licensed, or invited is warned to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

Appellants' allegation of vagueness is based in part upon the fact that the words "authorized, licensed, or invited" are not expressly defined by section 810.08(1). ² We conclude that the challenged terms are of such common understanding and usage that persons of ordinary intelligence are fully able to determine what conduct is proscribed by the challenged enactment. See Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Tatzel v. State, 356 So.2d 787 (1978); Bellamy v. State, 347 So.2d 419 (Fla.1977). The dictionary definition of the term "authorize" is "to endorse, empower, justify or permit." A "license" is permission to enter. Finally, to "invite" is "to request (one's) presence." Webster's Third New International Dictionary (1961). The challenged terms reveal clearly that one who enters a structure absent an invitation or permission to do so is in violation of section 810.08(1), Florida Statutes (Supp.1976).

Appellants argue that TMH is a public facility and that members of the public are impliedly invited to enter the building. We agree that by virtue of its operation as a public health facility, TMH has extended an implicit invitation to members of the public to enter its doors. However, as the United States Supreme Court acknowledged in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), this public access may be expressly limited to the extent necessary for the orderly functioning of the public facility. In Adderley a group was protesting in opposition to an arrest in front of a county jail. Because the group was blocking the entrance and driveway of the jail, the sheriff ordered the demonstrators to leave or be arrested. Those who refused to comply were charged with trespass. In upholding the defendants' convictions, the Court stated:

(We must determine) only the question of whether conviction . . . unconstitutionally deprives petitioners of their rights to freedom of speech, press, assembly or petition. We hold it does not. The sheriff, as jail custodian, had power, as the state courts have here held, to direct that this large crowd of people get off the grounds. There is not a shred of evidence in this record that this power was exercised . . . because the sheriff objected to what was being sung or said by the demonstrators or because he disagreed with the objectives of their protest. The record reveals that he objected only to their presence on that part of the jail grounds reserved for jail uses. There is no evidence at all that on any other occasion had similarly large groups of the public been permitted to gather on this portion of the jail grounds for any purpose. Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff's order to remove themselves from what amounted to the curtilage of the jailhouse. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this "area chosen for the peaceful civil rights demonstration was not only 'reasonable' but also particularly appropriate . . . ."

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