Del Percio v. City of Daytona Beach

• Decision Date: 29 March 1984
• Docket Number: Nos. 83-155,83-231,s. 83-155
• Parties: Leonard DEL PERCIO and Laura Iris Moore, Petitioners, v. The CITY OF DAYTONA BEACH, Respondent.
• Court: Florida District Court of Appeals

Page 323

449 So.2d 323

Leonard DEL PERCIO and Laura Iris Moore, Petitioners, v. The CITY OF DAYTONA BEACH, Respondent.

Nos. 83-155, 83-231.

District Court of Appeal of Florida,

Fifth District.

March 29, 1984.

Rehearing Denied May 2, 1984.

Eric A. Latinsky, Ormond Beach, for petitioners.

Frank B. Gummey, III, Robert G. Brown and Reginald E. Moore, Daytona Beach, for respondent.

DAUKSCH, Judge.

This matter is before us upon a petition for writ of certiorari to the circuit court which, acting in its appellate capacity, declared a city ordinance constitutional and upheld convictions of petitioners for having violated the ordinance. We issue the writ, quash the order declaring the ordinance constitutional, reverse the convictions and declare the following Daytona Beach Ordinance Number 81-334, creating Section 5-25 of the City Code, to be vague, overbroad, not fairly enforceable, and thus unconstitutional. The portions of the ordinance at issue provide:

(b) No female person shall expose to public view any portion of her breasts below the top of the areola or any simulation thereof in an establishment dealing in alcoholic beverages.

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(d) No person maintaining, owning or operating an establishment dealing in alcoholic beverages shall suffer or permit any female person to expose to public view any portion of her breasts below the top of the areola or any simulation thereof within the establishment dealing in alcoholic beverages.

If legislation, in the form of a statute or ordinance, is vague, open to interpretation It is the duty of the legislative body, here the city commission, to define as clearly and succinctly as possible what conduct the ordinance intends to proscribe. The ordinance in this case can be and has been variously interpreted by the circuit and county court in Volusia County. The record shows that the phrase prohibiting exposure of any portion of the breast below the top of the areola has been interpreted by learned, experienced, reasonable judges as follows.

which could lead to prosecution for "innocent" conduct; if it is legislation not easily interpreted by reasonable persons and leaves unbridled discretion to police and judicial officers, then it is violative of constitutional standards. Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Zachary v. State, 269 So.2d 669 (Fla.1972); State v. Buchanan, 191 So.2d 33 (Fla.1966); Marrs v. State, 413 So.2d 774 (Fla. 1st DCA 1982); Steffens v. State, 343 So.2d 90 (Fla. 3d DCA 1977).

Three of the lower court orders (entered by Volusia County Judge McDermott) interpret Section (b) of the ordinance to require a female person to expose at least a portion of her areola to the public view in order to be in violation. With this limitation engrafted, the court found Section (b) of the ordinance not unconstitutionally vague or overbroad in those cases. ¹ Judge McDermott also stated in The City of Daytona Beach v. Young, that an Orange County circuit court had construed the phrase "at or below the areola thereof" in a similar ordinance to require only that the areola itself be covered. In that case (Spees v. State, Orange County Circuit Court Case No. CJAP 78-72), the court stated that it interpreted the phrase to mean "from the upper portion of the areola to the bottom of it on each breast." The court also stated that "[t]his would not require a covering on a line running from the top of one areola across to the top of the other" since "[t]hat interpretation would require more covering than is presently seen on our beaches or behind ski towboats."

In a later order written by Judge McDermott, entitled Final Order of Disposition (combining several cases, including one on review here) ² another interpretation of Section (b) is provided. In this order, the court "clarified" the previous orders because the defendants in this case were only using "pasties" on the areolae and allowing the remainder of their breasts to be exposed. Judge McDermott now ruled that "the areola must be concealed by a brassiere-type cover made of an opaque fabric which does not and cannot adhere directly to the breasts without the aid of supporting straps, for a defendant to be found not to have violated" the pertinent subsection of the ordinance.

One of the defendants in the preceding case appealed to the circuit court (Keiser v. The City of Daytona Beach, Circuit Court Case No. 83-3161-CA-01-D) and that court found that the ordinance must be read so that it prohibits exposure of breasts as described in the ordinance, but without extending the prohibition to include those types of attire which are commonly accepted by modern society. The circuit court held that Judge McDermott's interpretation of the ordinance to require a certain type of clothing (a brassiere-type top with straps) added terms to the ordinance which were not placed there by the city, bringing into the ordinance's prohibition many types of female attire which are commonly accepted by modern society. The circuit court found that the ordinance, as interpreted by the county court, was overbroad.

Another county court order which provided an interpretation of Section (b) (although Petitioners argue, reasonably, that they too are uncertain as to what conduct is permissible under the ordinance. For example, they argue and we accept that many modern-day bathing suits commonly worn in motel swimming pool and beach concession or bar areas, where alcoholic drinks are sold, reveal a portion of a female's breasts below the top of the areolae, either from a view of the side or the front, or both. Many halter tops, tank tops, tube tops and bikini tops, often worn by females in certain bars and other recreational areas serving alcoholic beverages, are so constructed that a lower portion of the breast may be partially exposed. Some evening gowns, split down the front or the sides, worn in style and considered acceptable by society, are also so revealing that they would probably violate the ordinance. The ordinance declares that any portion of the breast below the areola must not be exposed. We do not believe that the ordinance was intended to control all forms of attire where this exposure may occur (such as mentioned above), but the ordinance, as worded, does not make this clear. The ordinance is overbroad because it also bars acceptable, legitimate attire or conduct.

                in dictum) was that entered in City of Daytona Beach v. Ducille and Grier, County Court Case Nos.  V82-6886 DB and V82-6880 DB.  Volusia County Judge Josephson stated:  "At least the ordinance in question, by proscribing the exposure of breasts has a reference point by prohibiting the exposing of the breast 'below the top of the areola.' "   The court stated that this is a reasonable restraint and added "otherwise any person entering an establishment where alcoholic beverages are served and wearing a low cut dress would be subject to violation, having exposed the upper portion of her breast."   The order did not consider the fact that some portion of the lower part of the breast may be exposed by some "low cut" dresses or other forms of attire
                

The behavior which we believe was intended to be, and should be, proscribed is topless dancing. There are legitimate public welfare and crime prevention interests to be served by disallowing this sometimes lewd conduct. Topless dancing, especially where alcohol is served, leads to other crimes. ³ Baser urges are excited through the use of alcohol, which releases inhibitions in some individuals. See New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (recognizing that nudity coupled with alcohol in public places begets undesirable behavior). So we agree with the city commission that governmental control is proper under the police power and there is no first amendment violation here. As in Fillingim v. State, 446 So.2d 1099 (Fla. 1st DCA 1984) (corrected opinion; original opinion at 8 F.L.W. 2947), we agree that the county's interest in regulating nude entertainment is unrelated to the suppression of free expression, since the ordinance does not impose a total ban on nude entertainment in the county, but is rather responsive to the problems associated with the combined uses of nudity and alcohol at commercial establishments, and, as such, represents a legitimate restriction on such entertainment. However, contrary to Fillingim, the record in this case shows that even learned trial judges have had to guess at the ordinance's meaning and have differed as to its application, rendering the ordinance unconstitutional.

In Fillingim, the court found that a similar ordinance was not unconstitutionally overbroad or void for vagueness, simply stating that the ordinance sufficiently defined and described its proscriptions in terms of place, type of conduct and the extent of exposure forbidden. Apparently, the court was not faced with a similar record of various interpretations by the lower courts of a particular proscription of the ordinance. In any event, the court in Fillingim provides no further explanation Topless dancing can and should be controlled, ⁴ but the government must not subject innocent citizen behavior to prosecution by enacting an ordinance loosely drawn to permit policemen, prosecutors and judges to interpret and decide what behavior each of them would say is violative. As stated by the court in Marrs v. State, 413 So.2d 774, 775 (Fla. 1st DCA 1982) ⁵:

or rationale for its decision and we do not find it persuasive in our holding as to the ordinance in this case.

[i]t is well settled that the language of a statute or ordinance must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. When people of ordinary intelligence must necessarily guess at its meaning and differ as to its...