Jacobs v. City of Jacksonville

• Decision Date: 08 April 1991
• Docket Number: No. 90-247-Civ-J-16.,90-247-Civ-J-16.
• Citation: 762 F. Supp. 327
• Parties: Jerry L. JACOBS, Plaintiff, v. CITY OF JACKSONVILLE, James E. McMillan, as Sheriff of Duval County, Florida, Defendants.
• Court: U.S. District Court — Middle District of Florida

762 F. Supp. 327

Jerry L. JACOBS, Plaintiff, v.CITY OF JACKSONVILLE, James E. McMillan, as Sheriff of Duval County, Florida, Defendants.

No. 90-247-Civ-J-16.

United States District Court, M.D. Florida, Jacksonville Division.

April 8, 1991.

Howard L. Dale, Jacksonville, Fla., for plaintiff.

Leonard S. Magid, City of Jacksonville, Gen. Counsel's Office, Jacksonville, Fla., for defendants.

ORDER

JOHN H. MOORE, II, District Judge.

This cause was tried before the Court on March 11, 1990.In accordance with Federal Rule of Civil Procedure 52, and having considered the testimony and evidence adduced, the arguments of counsel, and all memoranda of law submitted by the parties, the Court now issues the following findings of fact and conclusions of law.

DISCUSSION

I.Facts

Plaintiff, Jerry L. Jacobs, does business under the fictitious name of Youth Opportunities Unlimited (hereinafter "Y.O.U."), and is a person who, personally and through his employees, sells or offers for sale merchandise by traveling from door-to-door, while carrying such merchandise.Y.O.U. is a for-profit organization which derives income through the sale of cookies, candy, and other items.These sales are conducted primarily by teenagers who are Y.O.U. members.Plaintiff holds a city permit to operate as a peddler of merchandise.

Plaintiff and the Y.O.U. organization engage in the activity of selling door-to-door in residential neighborhoods in Jacksonville, Florida.The activity is conducted by young people, ages twelve to seventeen, from area schools under the supervision of Plaintiff and other adult supervisors.Approximately 75 young people participate in the program.Sales are made three to four days per week, generally for three hours on school days and eight hours on Saturdays.On school days, the young people are picked up from school by the Plaintiff or another adult supervisor, beginning sales at 5:00 p.m. and finishing at approximately 8:00-8:30 p.m.

Plaintiff manages Y.O.U. from a warehouse and sales office in Jacksonville.From this location, Plaintiff sells Y.O.U. products to each of the adult supervisors of the program, who in turn distribute the products to the young people under their supervision.Plaintiff and Y.O.U. do not use this location to make retail sales, and do not operate a retail outlet.The final sale of the product is made by the young person selling door-to-door.

Upon joining the Y.O.U. program, the young people are given a brief training in basic sales techniques, including the proper presentation of themselves and their product.For the purposes of training the participants and providing an example of effective sales techniques, Plaintiff personally goes to the doors of residences in Jacksonville to sell candy on occasion.A Y.O.U. salesperson carries an effective message to his or her customers in an attempt to persuade the customer to make a purchase.The salespitch combines a smooth and somewhat humorous description of the Y.O.U. product line with a strong anti-drug abuse message.While the salesperson does not usually inform the customer that Y.O.U. is a for-profit organization per se, Y.O.U.'s sales practices are not misleading, in that the typical Y.O.U. salesperson candidly advises the customer that one purpose behind their sales drive is the salesperson's own desire to earn money.

Plaintiff and the Y.O.U. salespersons conduct the door-to-door sales activities in various neighborhoods in Jacksonville on a rotating basis; as a result, sales in any particular neighborhood are made no more than a few times per year.Each individual Y.O.U. product item is sold to the consumer for $4.00.In 1990, approximately 90,000 individual Y.O.U. products were sold to residences in Jacksonville.Sales were consummated at approximately 40-50% of the residences solicited by Y.O.U.On average, approximately one Y.O.U. item was sold for each residence solicited.No evidence was introduced to show that a large number of the residences solicited found Y.O. U.'s sales activities to be annoying or injurious, although the evidence did show that Y.O.U. salespeople are occasionally unwelcome at a few residences.

In addition to its main activity of door-to-door sales, the Y.O.U. organization also coordinates and promotes youth activities for those involved in the program.Group activities conducted in the past have included beach parties, bowling, movies, and a visit to an anti-drug seminar.Also, awards and trophies are handed out to those youth who have achieved a high level of sales, and to those who have participated with the program for an extended period of time.

II.The ordinance at issue

The City of Jacksonville, through Officer J.P. Baptist of the Jacksonville Sheriff's Office, has threatened Plaintiff with arrest under J.O.C. § 250.303, for engaging in residential door-to-door peddling activities without invitation.Section 250.303 of the Jacksonville Ordinance Code provides:

Peddling to private residences prohibited.The business of going in, upon or to a private residence in the City by a solicitor, peddler, hawker, itinerant merchant or transient vendor of merchandise who has not been requested or invited to do so by the owner or occupant of the private residence, for the purpose of:

(a) soliciting orders for the sale of goods, wares and merchandise; or

(b) disposing of, peddling or hawking goods, wares and merchandise;

is declared to be a nuisance and unlawful and is punishable as a class D offense.

In most instances, Plaintiff has not been expressly "requested or invited" by the owner or occupant of the private residence before engaging in door-to-door sales activity.SeeJ.O.C. § 250.303.Plaintiff does not solicit at any private residence where a "No Solicitation" sign is visible.

Plaintiff contends that the ordinance is completely inapplicable to his activities, since he does not come within the definition of "peddler" as defined in the Code.Section 250.101(b) of the Code defines "peddler" as "a person who sells or offers for sale merchandise or services or both by traveling from place to place, carrying any such merchandise if selling or offering to sell same, without operation from a fixed business location for the exhibition and sale of such merchandise or services or both."The Court finds that Plaintiff is a "peddler" as defined in the Code, for two reasons.First, Plaintiff does not dispute that he"sells or offers for sale merchandise ... by traveling from place to place, carrying any such merchandise if selling or offering to sell same."Second, while Plaintiff does maintain a "fixed business location,"Plaintiff does not operate from that location "for the exhibition and sale of ... merchandise" as contemplated by the Code.Sales from Plaintiff to the other Y.O.U. group leaders are not retail sales contemplated by the Code.The Court also finds that any recent sales from Plaintiff's warehouse to persons other than Y.O.U. group leaders are too few to qualify for the "fixed business location" exemption, and that such sales are, in any event, an invalid attempt to qualify for the exemption post hac.¹Accordingly, the Court finds that Plaintiff is a "peddler," subject to the prohibition on door-to-door peddling set forth in J.O.C. § 250.303.

III.Florida law with respect to anti-peddling laws

Under Florida law, unless a homeowner manifests externally in some manner his or her wish to remain unmolested by the visits of solicitors or peddlers, a solicitor or peddler may take custom and usage as an implied invitation to call upon residences where such custom and usage exists.Prior v. White,132 Fla. 1, 180 So. 347, 355(1938).In Prior, the Florida Supreme Court invalidated an anti-peddling ordinance of New Smyrna Beach, Florida, as applied to the door-to-door sales activities of a Fuller Brush Company salesman.The New Smyrna ordinance was virtually identical to the Jacksonville ordinance now at issue.The court held that peddling and soliciting in New Smyrna was not a public nuisance because custom and usage established an implied invitation to solicit sales at private residences, and therefore could not be punished as a crime or misdemeanor.SeePrior,180 So. at 356.The court further held that a municipality cannot, through an attempted exercise of its police powers, declare by ordinance or otherwise that an activity is a public nuisance, when in fact such activity is not proved to be a public nuisance.Seeid.

Prior v. White is still good law in Florida, never having been overruled by the Florida Supreme Court.Recent cases also have held that a municipality may not declare an activity to be a public nuisance unless that activity does in fact constitute a public nuisance.SeeCarter v. Town of Palm Beach,237 So.2d 130(Fla.1970);Orlando Sports Stadium, infra,262 So.2d at 884(stating that each case in which the government asserts that an activity constitutes a public nuisance "must turn upon the facts and be judicially determined");Larson v. Lesser,106 So.2d 188, 191(Fla.1958)(holding that a Florida statute which prohibited direct solicitation by public adjusters was an invalid exercise of the police power because the statute had no "basis of necessity to protect the public morals, health, or welfare.");see alsoRetail Credit Co. v. Dade County,393 F.Supp. 577(S.D.Fla.1975)(relying onPrior to invalidate an ordinance which declared the uninvited going in and upon private residences in Dade County by field representatives of consumer reporting agencies a public nuisance).In addition, Florida courts continue to recognize the implied invitation theory.SeeFletcher v. Florida Publishing Company,319 So.2d 100, 104-05(Fla. 4th D.Ct. App.1975)(stating that "permission to go upon the premises of another may be implied from custom, usage or conduct," although "such implied consent is necessarily limited to those acts which are within a fair and reasonable interpretation of...