State v. Catalano

Citation60 So.3d 1139
Decision Date11 May 2011
Docket Number2D10–974.,Nos. 2D10–973,s. 2D10–973
PartiesSTATE of Florida, Petitioner,v.Richard T. CATALANO, Respondent,State of Florida, Petitioner,v.Alexander Schermerhorn, Respondent.
CourtCourt of Appeal of Florida (US)

60 So.3d 1139

STATE of Florida, Petitioner,
v.
Richard T. CATALANO, Respondent,State of Florida, Petitioner,
v.
Alexander Schermerhorn, Respondent.

Nos. 2D10–973

2D10–974.

District Court of Appeal of Florida, Second District.

May 11, 2011.


West CodenotesHeld UnconstitutionalWest's F.S.A. § 316.3045

[60 So.3d 1141]

Pamela Jo Bondi, Attorney General, Tallahassee, and Helen Brewer Fouse, Assistant Attorney General, Tampa, and Scott D. Makar, Solicitor General, and Timothy D. Osterhaus, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Petitioner.Richard T. Catalano, pro se.Richard T. Catalano, Clearwater, for Respondent Alexander Schermerhorn.Andrea Flynn Mogensen, Sarasota, Cooperating Attorney for Amicus Curiae ACLU Foundation of Florida Inc., and Randall C. Marshall, Miami, for Amicus Curiae ACLU Foundation of Florida, Inc.BLACK, Judge.

Defendants, Richard T. Catalano and Alexander Schermerhorn, were issued traffic citations under section 316.3045, Florida Statutes (2007). 1 Section 316.3045 restricts the volume at which a car stereo system may be played on a public street, but it exempts vehicles being used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. For the reasons stated below, we deny the State's petition for certiorari.

I. Factual Background

Mr. Catalano, a practicing attorney, and Mr. Schermerhorn were cited for playing their car radios too loudly, in violation of section 316.3045, which states as follows:

Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions—

(1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is:

(a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or

(b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals.

(2) The provisions of this section shall not apply to any law enforcement motor vehicle equipped with any communication device necessary in the performance of law enforcement duties or to any emergency vehicle equipped with any communication device necessary in the performance of any emergency procedures.

(3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The

[60 So.3d 1142]

provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated.

(4) The provisions of this section do not apply to the noise made by a horn or other warning device required or permitted by s. 316.271. The Department of Highway Safety and Motor Vehicles shall promulgate rules defining “plainly audible” and establish standards regarding how sound should be measured by law enforcement personnel who enforce the provisions of this section.

(5) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.

In county court, Mr. Catalano and Mr. Schermerhorn both pleaded not guilty and moved to dismiss their citations on the grounds that section 316.3045(1) is unconstitutionally vague and overbroad, invites arbitrary enforcement, and impinges free speech rights. The trial judge denied the motions, whereupon Mr. Catalano and Mr. Schermerhorn changed their pleas to nolo contendere and reserved the right to appeal the denial of their motions to dismiss. The trial judge accepted the pleas, withheld adjudication, and imposed court costs. Mr. Catalano and Mr. Schermerhorn appealed the decision to the circuit court.

On appeal, the circuit court focused its analysis on two Florida decisions that discuss the meaning of the term, “plainly audible” in the context of whether that phrase is vague and invites arbitrary enforcement. In Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863, 867 (Fla. 2d DCA 1996), the court held that the “plainly audible” standard in a county noise ordinance was unconstitutionally vague, overbroad, and invited arbitrary enforcement. Although Easy Way involved a county noise ordinance and not a traffic control statute, Mr. Catalano argued that section 316.3045(1)(a) must also fail, inasmuch as the statute utilized the “plainly audible” standard.

The State argued that Easy Way was not controlling, but rather the Fifth District's decision in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998), compelled the conclusion that section 316.3045(1) is constitutional. In Davis, a previous version of section 316.3045 was deemed to be constitutional against a vagueness and overbreadth challenge. Id. at 635. 2

The circuit court carefully considered each argument and concluded that the issue ruled on by the two district courts was essentially the same, i.e., whether the “plainly audible” standard was too vague and overbroad to pass constitutional scrutiny. The court concluded that the decision in Davis conflicts with the decision in Easy Way. The court reasoned that the different purpose of the ordinance and the statute—one addressing general county noise ordinance standards and the other addressing the safe operation of motor vehicles on highways—did not change the fact that the test to determine the facial

[60 So.3d 1143]

constitutionality of nearly identical language was the same. Since the Second District had decided the issue, the court held the statute must fail because the court was “obliged to follow the ruling of the Second District.” See Pardo v. State, 596 So.2d 665, 667 (Fla.1992) (“[I]f the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it.”) (quoting State v. Hayes, 333 So.2d 51, 53 (Fla. 4th DCA 1976)).

The State of Florida filed this timely petition for certiorari review arguing that the circuit court departed from the essential requirements of the law because section 316.3045 does not invite arbitrary enforcement, it comports with free speech rights, and binding precedent found this section constitutional.

II. Standard of Review

In a petition for certiorari that seeks review of an appellate decision from the circuit court, the standard of review is narrow. Bennett v. State, 23 So.3d 782, 787–88 (Fla. 2d DCA 2009). The district court is typically limited to reviewing “instances where the lower court did not afford procedural due process or departed from the essential requirements of law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). In order for a writ of certiorari to issue, a departure from the essential requirements of the law must be more than a simple legal error. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (citing Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997)). “A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Kaklamanos, 843 So.2d at 889 (citing Ivey, 774 So.2d at 682). A “ ‘clearly established principle of law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Kaklamanos, 843 So.2d at 890. “[I]n addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.” Id.

III. Easy Way/Davis Analysis

The State argues that the circuit court departed from the essential requirements of the law by applying Easy Way instead of Davis. The State asserts that Easy Way was decided based on a county's subjective enforcement of a general noise ordinance and the challenge in this case is based on a facial challenge of a statute that addresses safety on the highways. The State reasons that Davis is binding precedent because it addresses the specific statute that is under attack in this case. Specifically, the State asserts that the circuit court's holding was due to the subjective application and arbitrary enforcement of the “plainly audible” standard in the ordinance. The State points to the language in Easy Way that states: “If actual experience with the ordinance were to demonstrate that it represents a subjective standard, prohibiting a volume that any individual person ‘within the area of audibility’ happens to find personally ‘disturbing,’ we would not hesitate to change our judgment accordingly.” Easy Way, 674 So.2d at 867 (quoting Reeves v. McConn, 631 F.2d 377, 385 (5th Cir.1980)).

We do not agree with the State's position. The challenge in Easy Way was a facial challenge. 674 So.2d at 863. Although the court did quote the Reeves language cited above, it also stated that “the ordinance does not define its crucial terms ‘plainly audible’ so as to secure against arbitrary enforcement.” Id. at 866. The court reasoned that the “plainly audible” standard represented the subjective standard that was discussed in the

[60 So.3d 1144]

Reeves decision—any individual person ‘within the area of audibility’ happens to find personally ‘disturbing,’ ”—not because the term “plainly audible” was being applied subjectively, but because the term “plainly audible” was a subjective term on its face; thus, the court found it vague. Id. at 867.

Because this case presents a facial challenge to the term “plainly audible” and because both Easy Way and Davis dealt with the...

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8 cases
  • State v. Catalano
    • United States
    • United States State Supreme Court of Florida
    • December 13, 2012
    ...of Florida.LABARGA, J. This case is before the Court on appeal from a decision of the Second District Court of Appeal, State v. Catalano, 60 So.3d 1139 (Fla. 2d DCA 2011), which declared section 316.3045, Florida Statutes (2007), to be invalid. We have jurisdiction.1 For the reasons set for......
  • Montgomery v. State
    • United States
    • Court of Appeal of Florida (US)
    • September 16, 2011
    ...standard in a county noise ordinance was found to be unconstitutionally vague and overbroad. More recently, in State v. Catalano, 60 So.3d 1139, 1143–44 (Fla. 2d DCA 2011), the Second District Court of Appeal again addressed the “plainly audible” standard in a challenge to section 316.3045,......
  • State v. Conley, 2D11–3481.
    • United States
    • Court of Appeal of Florida (US)
    • July 18, 2012
    ...316.3045(1)(a), Florida Statutes (2010). Subsequent to the stop in Conley's case, this court issued its opinion in State v. Catalano, 60 So.3d 1139, 1146 (Fla. 2d DCA 2011), wherein we stated that section 316.3045, Florida Statutes (2007), “is a content-based restriction on free expression ......
  • Manatee Cnty. v. 1187 Upper James of Fla., LLC
    • United States
    • Court of Appeal of Florida (US)
    • January 16, 2013
    ...free speech clause, see, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); State v. Catalano, 60 So.3d 1139, 1144 (Fla. 2d DCA 2011); Daley v. City of Sarasota, 752 So.2d 124, 125 (Fla. 2d DCA 2000), and it argues that the entertainment restrictio......
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2 books & journal articles
  • Miscellaneous
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...and violates the first amendment in that the statute is not content-neutral in the type of speech it prohibits. State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011) Defendant is not constitutionally entitled to a 12-person jury when he is tried for a F1 PBL as a PRR, which would require a l......
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...and violates the first amendment in that the statute is not content-neutral in the type of speech it prohibits. State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011) Under §316.151(1)(b), a left turn must be made from the extreme left left of travel. Where defendant in a through lane allows ......

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