Gray v. Kohl

• Decision Date: 18 June 2008
• Docket Number: No. 07-10024-CIV.,07-10024-CIV.
• Citation: 568 F.Supp.2d 1378
• Parties: Thomas GRAY, Plaintiff v. Mark E. KOHL, in his official capacity as State Attorney for the Sixteenth Judicial Circuit of Florida; Richard D. Roth, in his official capacity as Monroe County Sheriff, Defendants.
• Court: U.S. District Court — Southern District of Florida

568 F.Supp.2d 1378

Thomas GRAY, Plaintiff v. Mark E. KOHL, in his official capacity as State Attorney for the Sixteenth Judicial Circuit of Florida; Richard D. Roth, in his official capacity as Monroe County Sheriff, Defendants.

No. 07-10024-CIV.

United States District Court, S.D. Florida.

June 18, 2008.

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Arthur Spiegel, Esq., Miami, FL, Benjamin W. Bull, Esq., Jeremy D. Tedesco, Esq. Joshua B. Bolinger, Esq. Scottsdale, AZ, Dvid Andrew Cortman, Esq., Lawrenceville, GA, for Plaintiff.

Richard A. Giuffreda, Esq., Jason Lee Scarberry, Esq., Purdy Jolly Giuffreda & Barranco, P.A., Ft. Lauderdale, FL, for Defendants.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT: GRANTING DEFENDANT RICHARD D. ROTH'S MOTION FOR SUMMARY JUDGMENT

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendant Richard D. Roth's Motion for Summary Judgment (dkt. # 84) and Plaintiffs Motion for Summary Judgment (dkt. # 85).

UPON CONSIDERATION of the Motion, the Responses, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.

I. BACKGROUND

This action arises from Defendants' prohibition of Plaintiff Thomas Gray's ("Gray") distribution of Bibles on a public sidewalk within 500 feet of Key Largo School, a school safety zone pursuant to the Florida School Safety Zone Statute. § 810.0975, Fla. Stat. Gray claims the statute is unconstitutional for vagueness and overbreadth. The School Safety Zone Statute states, in relevant part:

(2)(a) Each principal or designee of each public or private school in this state shall notify the appropriate law enforcement agency to prohibit any person from loitering in the school safety zone who does not have legitimate business in the school safety zone or any other authorization, or license to enter or remain in the school safety zone or does not otherwise have invitee status in the designated safety zone.

(b) During the period from 1 hour prior to the start of a school session until 1 hour after the conclusion of a school session, it is unlawful for any person to enter the premises or trespass within a school safety zone or to remain on such premises or within such school safety zone when that person does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone. Any person who violates this subsection commits a misdemeanor of the second degree....

(c) Any person who does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone who shall willfully fail to remove himself or herself from the school safety zone after the principal or designee, having a reasonable belief that he or she will commit a crime or is engaged in harassment or intimidation of students entering or leaving school property, requests him or her to leave the school safety zone commits a misdemeanor of the second degree Nothing in this section shall be construed to abridge or infringe upon the right of any person to peaceably assemble and protest.

(d) This section does not apply to residents or persons engaged in the operation of a licensed commercial business within the school safety zone.

§ 810.0975(2), Fla. Stat. Section 810.0975(1) defines a "school safety zone" as being "within 500 feet of any real property owned by or leased to any public or private elementary, middle, or high school or school board and used for elementary, middle, or high school education."

The following facts are set forth in the Complaint. Gray, a resident of Key Largo, Florida, and member of Gideons International ("Gideons"), feels a religious desire and obligation to share his religion with others. Compl. ¶¶ 25-26. One way Plaintiff shares his religion is by distributing Bibles in public. Id. at ¶ 27.

Key Largo has one road, U.S. 1, that spans its entire length. Id. at 137. Monroe County built and maintains a public bike path/sidewalk that abuts the east side of U.S. 1 for approximately twenty miles in Key Largo. Id. at ¶ 38. This public bike path/sidewalk is open and accessible to the public and is regularly used by community members for walking, running, biking, and other activities. Id. at 139. The public bike path/sidewalk runs in front of commercial businesses, government buildings, personal residences, and public and private schools. Id. at 140.

Many activities occur within 500 feet of Key Largo School between one hour prior to school beginning and one hour after school ends. Id. at ¶ 41. The public bike path/sidewalk abutting U.S. 1 and Key Largo School is located within 500 feet of the school to both the north and south and is routinely used by community members as they talk, walk, bike, and jog. Id. at ¶¶ 42-43. Many businesses are located within 500 feet of Key Largo School, including a pet motel, a gas station, "The Cracked Conch" restaurant, and a plumbing business. Id. at ¶¶ 45-46. Also within 500 feet of the school is a church, as well as a building where trucks are housed. Id. at ¶¶ 5354. Numerous residences are also located within 500 feet of the school. Id. at ¶ 47.

The Gideons' procedure for handing out Bibles from the public bike path/sidewalk abutting school grounds is as follows: (1) approximately two weeks prior to the distribution, a member calls the appropriate police department to notify them of distribution; (2) ten to fifteen minutes prior to distribution, a few Gideon members give school administrators notice that they will be handing out Bibles after classes are dismissed; (3) Gideon members are instructed that they must stand on the public bike path/sidewalk during distribution and are not permitted on school grounds; and (4) Gideon members are instructed not to force Bibles on anyone. Id. at 158.

In December of 2006, several Gideons, including Gray, distributed Bibles at Coral Shores High School. Id. at 159. Coral Shores High School is located approximately five miles from Key Largo School and is adjacent to the same public bike path/sidewalk that abuts Key Largo School. Id. at ¶¶ 60-61. Approximately two weeks before the planned distribution at Coral Shores, Gray called Deputy Ralph Williams at the Monroe County Sheriffs Office and informed him of the plans to distribute Bibles. Id. at 162. Deputy Williams stated that the distribution was permissible and that he would be at the school on the day of distribution. Id. at 163. On the day of distribution, Deputy Williams, his Sergeant, and several other officers showed the Gideons where to stand on the public bike path/sidewalk. Id. at 165. The Gideons stood on the public bike path/sidewalk next to the entrances and exits to Coral Shores and distributed Bibles from these positions. Id. at ¶ 66. There were no problems during the Coral Shores distribution. Id. at ¶ 67.

The following month, on January 19, 2007, Gray and other Gideons distributed Bibles at Key Largo School. Id. at 169. Approximately two weeks prior to the distribution at Key Largo School, Gray contacted Deputy Williams to inform him of the planned distribution at Key Largo School. Id. at 170. Gray contacted Deputy Williams three times to give him notice. Id. at 1170-71. Deputy Williams told Gray that the planned distribution from the public bike path/sidewalk at Key Largo School was permissible. Id. at H70-71. Deputy Williams also informed Gray that the school resource officer at Key Largo School would be out of town during the distribution, but that the school would have no problem with the distribution. Id. at 172.

Gray arrived at Key Largo School at approximately 2:00 p.m. on January 19, 2007. Id. at 173. Gray and another Gideon member then went to the school administration building to inform the Principal of the planned Bible distribution, but the Principal was not available. Id. at 176-78. Gray also spoke with Florida State Patrol Officer, Gretchen Glenn, who was in the school office at this time, and Officer Glenn gave no indication that the Bible distribution was problematic. Id. at ¶¶ 81-82.

Gray then returned to the other Gideons on the public bike path/sidewalk and positioned himself on the public bike path/sidewalk by the school crosswalk. Id. at H83-85. Shortly after Gray took his position by the crosswalk, the Principal came out of the school and stared at Gray for a few minutes. Id. at ¶ 89. She did not approach or speak to Gray and she did not witness Plaintiff handing out any Bibles. Id. At about 3:20 p.m., Deputy Williams stopped at Gray's position to see how distribution was going. Id. at 188. For the duration of the time he distributed Bibles at the school, Gray stood on the public bike path/sidewalk and did not cross onto school grounds. Id. at 190.

At approximately 3:30 p.m., Gray received a call on his cell phone from a fellow Gideon member who was distributing Bibles at the school that day. Id. at ¶ 91. The caller informed Gray that he and another Gideon member were being arrested. Id. at 192. Gray stopped distributing Bibles, put them back in his truck, and walked up to the school's north exit. Id. at 194. There were approximately five to six Sheriffs Officers present. Id. at 195. Gray identified himself as the Gideon member in charge and asked the officers who was in charge. They all indicated that Officer John Perez was the arresting Officer. Id. at 196. Gray approached Officer Perez and asked what the charges were. Officer Perez was highly agitated and said that Gray would know in forty-eight hours when he received the report. Id. at 198.

Gray then called Deputy Williams and asked for his assistance. Id. at ¶ 101. Deputy Williams indicated that he would email Officer Perez. Id. at ¶ 102. Gray told Officer Perez that he had an email in his car from another officer stating that the Gideons have a...