Hoffman v. Carson

• Decision Date: 07 July 1971
• Docket Number: No. 40150,40150
• Citation: 250 So.2d 891
• Parties: Lisa HOFFMAN, Appellant, v. Dale CARSON, as Sheriff of Duval County and the Consolidated City of Jacksonville, and T. Edward Austin, Jr., as State Attorney for the Fourth Judicial Circuit of Florida, Appellees.
• Court: Florida Supreme Court

Page 891

250 So.2d 891

49 A.L.R.3d 1078

Lisa HOFFMAN, Appellant, v. Dale CARSON, as Sheriff of Duval County and the Consolidated City of Jacksonville, and T. Edward Austin, Jr., as State Attorney for the Fourth Judicial Circuit of Florida, Appellees.

No. 40150.

Supreme Court of Florida.

July 7, 1971.

Joseph M. Glickstein, Jr., Jacksonville, for appellant.

James C. Rinaman, Jr., Gen. Counsel, David U. Tumin and Thomas R. Welch, Asst. Gen. Counsel, Jacksonville, for Dale Carson; Charles P. Pillans, III, Jacksonville, for T. Edward Austin, Jr., appellees.

CARLTON, Justice.

On three successive nights in July 1970, appellant Hoffman, a 'go-go' dancer by trade, was arrested for violating Fla.Stat. § 800.03, F.S.A., by going totally nude and exposing her sex organs in the course of her performances at a Jacksonville cocktail lounge. Subsequently, she filed a complaint in Circuit Court, Duval County, in which she sought to have an injunction levied against the Sheriff, the City, and the State Prosecutor so as to restrain them from unconstitutionally interfering with her artistry. The Circuit Court declared Fla.Stat. § 800.03, F.S.A., to be constitutionally valid, and entered a Final Judgment denying the requested relief. Our jurisdiction vests accordingly. Article V, § 4(2), Florida Constitution, F.S.A.

The statute provides:

' § 800.03. Exposure of sexual organs.--It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. Provided, however, this section shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose. Any person convicted of a violation hereof shall be punished by a fine of not more than five hundred dollars or by imprisonment in the county jail for a period of not more than six months, or by both such fine and such imprisonment, in the discretion of the court.'

Appellant's first point on appeal is the assertion that the Circuit Court erred in not finding the statute unconstitutional on its face. She contends that the standard 'vulgar or indecent manner' is so vague as to leave the ordinary citizen in substantial doubt as to what manner of behavior is actually proscribed. We cannot agree. Because of the nature of the statute, the terms in question must be construed as necessarily relating to a lascivious exhibition of those private parts of a person which common propriety requires to be customarily kept covered in the presence of others. This construction necessarily applies also to the language, 'or so to expose or exhibit his person in such place, or to go or be naked in such place.'

Moreover, the proviso that, 'this act shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose,' sufficiently restricts the application of the statute so as to bring it within common understanding. In discussing an ordinance referring to an 'illusion of nudeness,' the Supreme Court of New Jersey said the enactment had to be considered in light of the attending circumstances and the problem presented; the Court also said: "Scholastic strictness' of definition cannot be adopted if it prevents a reasonable construction. * * * Exceptions are implied to give effect to the general legislative intent shown by the context * * *.' Adams Newark Theatre Co. v. City of Newark, 22 N.J. 472, 126 A.2d 340 (1956), aff'd per curiam, 354 U.S. 931, 77 S.Ct. 1395, 1 L.Ed.2d 1533. Within the ambit of the proviso in our Florida statute, we find public restrooms, bathing and locker room facilities, and those places in which nudity or exposure is necessarily expected outside of the home and the sphere of privacy protected therein. We cannot say that a public lounge falls within this provision.

Appellant's second point is that the statute is unconstitutional in application to her since she was engaged in an artistic endeavor. She urges the theory that her actions are interpretations of accompanying music, and that this is her means of communicating her ideas of freedom to the assembled patrons of the lounge. It is asserted that this method of expression is a form of speech warranting the protection of the First Amendment, unless found to be obscene under the Roth-Memoris test of obscenity. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1959); A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). For precedential support, reliance is placed primarily upon the case of In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535 (1968), cert. denied, 395 U.S. 910, 89 S.Ct. 1743, 23 L.Ed.2d 223.

This assertion might be applicable in other circumstances, but we find that in relation to the performance as presented, it is without merit. Appellant loses sight of the distinction between speech and conduct. The statute is not directed at First Amendment rights of free expression, nor does it concern itself with obscenity as does Fla.Stat. Chapter 847, F.S.A. Rather, it is directed at the exposure of sexual organs and nudity, a matter of conduct thought to be a crime under the common law (e.g. Commonwealth v. Broadland, 315 Mass. 20, 51 N.E.2d 961 (1943); Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952)), and generally considered as having a reasonable relationship to the public welfare, and, therefore, within the police power of the Legislature. See State ex rel. Church v. Brown, 165 Ohio St. 31, 133 N.E.2d 333 (1956), appeal dismissed, 352 U.S. 884, 77 S.Ct. 126, 1 L.Ed.2d 82.

In City of Portland v. Derrington, 253 Or. 289, 451 P.2d 111 (1969), cert. denied, 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 it is pointed out that there is a valid distinction between conduct, which the government can regulate, and speech, which is largely immune from regulation. The Oregon Supreme Court reversed a lower court decision holding the Oregon...