Jones v. Williams Pawn & Gun, Inc.

• Decision Date: 10 October 2001
• Docket Number: No. 4D00-3723.,4D00-3723.
• Citation: 800 So.2d 267
• Parties: Nellie JONES, as Personal Representative of the Estate of Sonny Jones, deceased, Appellant, v. WILLIAMS PAWN & GUN, INC., a corporation for profit, Appellee.
• Court: Florida District Court of Appeals

800 So.2d 267

Nellie JONES, as Personal Representative of the Estate of Sonny Jones, deceased, Appellant, v. WILLIAMS PAWN & GUN, INC., a corporation for profit, Appellee.

No. 4D00-3723.

District Court of Appeal of Florida, Fourth District.

October 10, 2001.

Rehearing Denied December 13, 2001.

Jack Sobel of Law Offices of Jack Sobel, P.A., Stuart, for appellant.

Scott A. Mager and Gary S. Gaffney of Mager & Associates, P.A., and Jack D. Luks and Paul S. Jones of Luks, Koleos & Santaniello, P.A., Fort Lauderdale, for appellee.

SHAHOOD, J.

This action arose from the sale of a handgun by appellee, Williams Pawn & Gun, Inc., to Jamie Lofton, a mentally retarded man, who used the gun days later in a robbery attempt, killing appellant's husband, Sonny Jones. As the Personal Representative of her husband's estate, appellant sued the pawn shop for wrongful death as well as a violation of section 790.17, Florida Statutes (1997), which makes it a crime to sell a weapon to a person of unsound mind. Appellant claimed that at all times relevant, Lofton was of unsound mind and mentally incompetent.

Williams Pawn & Gun moved for final summary judgment alleging that there was no evidence that the pawn shop had actual or constructive knowledge of Lofton's alleged unsound mind or mental condition at the time of the handgun sale. Thus, there was no evidence that the pawn shop failed to comply with section 790.17, Florida Statutes.

Appellant moved for partial summary judgment alleging that the deposition testimony of Lofton's mother established that Lofton was of "unsound mind" when the pawn shop sold him the gun. Lofton was determined to be mentally and emotionally retarded since he was a young boy. Appellant claimed that under section 790.17(1), it was a crime to sell a gun to a person of unsound mind, even in the absence of any showing that the seller did so knowingly and willingly. Thus, the pawn shop was strictly liable for the wrongful death of the decedent. Appellant also raised a negligence per se argument.

In its order on the parties' motions for summary judgment, the trial court found that it was unrebutted that Lofton was mentally retarded at the time of the gun purchase and could read only at a second grade level. The court held that it was a crime to sell a firearm to a person of unsound mind, denied the pawn shop's motion for summary judgment, but granted appellant's motion for partial summary judgment on the negligence per se issue.

Prior to the issuance of the court's order, the pawn shop moved for a declaratory judgment on the constitutionality of section 790.17. The pawn shop then moved for rehearing on the summary judgment motion, arguing that mentally retarded persons are not categorically of unsound mind. As a result of said motion, the court thereafter requested memoranda of law on the ability of mentally retarded persons to obtain driver's licenses. Prior to ruling on the issue, the parties advised the court that all issues in the case had been resolved, except as to whether section 790.17 was unconstitutionally vague as applied to the facts of the case. Further, the parties agreed that a trial was unnecessary. The parties stipulated to damages and agreed that whichever party prevailed on the pawn shop's motion for declaratory judgment as to the constitutionality of section 790.17 as it applied to the term "unsound mind," would be entitled to judgment.

In entering Final Summary Judgment for the pawn shop, the court made certain findings of fact: (1) that the pawn shop sold the firearm to Lofton which Lofton used to kill Sonny Jones; (2) that the evidence in the record indicated that Lofton was mildly retarded at the time of sale; and (3) that the parties settled all claims except that of alleging strict liability under section 790.17, and that the total damages attributable to the incident were $275,000, against which the pawn shop was entitled to a set-off of $75,000 for monies previously paid to appellant. The court entered summary judgment in favor of the pawn shop, holding that "[s]ection 790.17, Florida Statutes, does not define the term `person of unsound mind' and as applied to this case, the statute is therefore unconstitutionally vague." We reverse.

The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct. See Sieniarecki v. State, 756 So.2d 68, 74 (Fla.2000)(quoting Brown v. State, 629 So.2d 841, 842-43 (Fla.1994)). The language of the statute must provide a definite warning of what conduct is required or prohibited, measured by common understanding and practice. See id. Even in penal statutes, the legislature's failure to define a statutory term does not in and of itself render a penal provision unconstitutionally vague. See State v. Hagan, 387 So.2d 943, 945 (Fla.1980).

In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense. See State v. Barnes, 686 So.2d 633, 637 (Fla. 2d DCA 1996), review denied, 695 So.2d 698 (Fla.1997); see also Plante v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 685 So.2d 886 (Fla. 4th DCA 1996), review denied, 695 So.2d 701 (Fla.1997). In the absence of such a definition, the plain and ordinary meaning of the term can be ascertained by reference to a dictionary. See Barnes, 686 So.2d at 637. Any doubts as to the constitutionality of the statute must be resolved in favor of its constitutionality. See Scudder v. Greenbrier C. Condo. Ass'n, 663 So.2d 1362, 1368 (Fla. 4th DCA 1995) (citing Dep't of Legal Affairs v. Rogers, 329 So.2d 257, 263 (Fla. 1976)). A statute is not unconstitutionally vague merely because it is subject to differing interpretations. See Scudder, 663 So.2d at 1368.

The traditional rule is that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." Sieniarecki, 756 So.2d at 74-75. "If the record demonstrates that the [defendant] engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute, then he cannot successfully challenge it for vagueness nor complain of its vagueness as applied to the hypothetical conduct of others." Sieniarecki, 756 So.2d at 74-75. Thus, the instant vagueness claim must be examined in light of the facts pertinent to this case before analyzing other hypothetical applications of the law. See Barnes, 686 So.2d at 637; Sieniarecki, 756 So.2d at 74-75.

In this case, we hold that section 790.17 is not unconstitutionally vague as applied. Section 790.17, Florida Statutes (1997), provides as follows in relevant part:

(1) A person who sells, hires, barters, lends, transfers, or gives any minor under 18 years of age any dirk, electric weapon or device, or other weapon, other than an ordinary pocketknife, without permission of the minor's parent or guardian, or sells, hires, barters, lends, transfers, or gives to any person of unsound mind an electric weapon or device or any dangerous weapon, other than an ordinary pocketknife, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(emphasis supplied).

In the absence of a statutory definition, words of common usage are construed in their plain and ordinary meaning which can be ascertained by reference to a dictionary. See Sieniarecki, 756 So.2d at 75. Since section 790.17 does not define the term "of unsound mind," Black's Law Dictionary 1539-40 (6th ed.1990), defines "unsound mind" as follows:

Non-legal term referring to one who from infirmity of mind is incapable of managing himself or his affairs. The term, therefore, includes insane persons. It exists where there is essential deprivation of the reasoning faculties, or where a person is incapable of understanding and acting with discretion in the ordinary affairs of life.... But eccentricity, uncleanliness, slovenliness, neglect of person and clothing, and offensive and disgusting personal habits do not constitute unsoundness of mind.

Under the facts of this case, Lofton falls squarely within the definition of a person of "unsound mind." It is undisputed that Lofton is mentally retarded. The evidence submitted to the trial court established that since grade school, Lofton had been diagnosed as emotionally and mentally retarded and had a second grade reading level. Lofton's mother testified that he was incapable of managing himself or his affairs. Since elementary school, Lofton attended special classes for the mentally handicapped, he always lived with his parents or his grandmother, he never held a job, he received SSI disability benefits from social security, he could not drive, and he did not know how to handle money or balance a checkbook. While the trial court adopted the pawn shop's expert's opinion that Lofton was only mildly retarded, the testimony of Mrs. Lofton and Dr. Landrum demonstrates otherwise. Even if mildly retarded, Lofton is incapable of caring for himself or his affairs.

Under its plain and ordinary meaning, section 790.17 gives a person of ordinary intelligence a definite warning of what conduct is required or prohibited. Although the term "unsound mind" might be subject to differing interpretations, that does not render the statute vague. See Scudder, 663 So.2d at 1368. Clearly, the statute gives notice that it is a violation to entrust or to sell a dangerous weapon, such as a firearm, to a person like Lofton who because of his mental retardation, is incapable of caring for himself. Whether the pawn shop knew or should have known about...