State v. Hanna
| Decision Date | 24 March 2005 |
| Docket Number | No. 5D03-4109.,5D03-4109. |
| Citation | 901 So.2d 201 |
| Parties | STATE of Florida, Appellant, v. Roxie Lynn HANNA, Appellee. |
| Court | Florida District Court of Appeals |
Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
Richard L. Wilson, Orlando, for Appellee.
Joel D. Prinsell, Senior Assistant County Attorney and Linda Brehmer Lanosa, Assistant County Attorney, Orlando, Amicus Curiae for State of Florida.
The State of Florida charged Roxie Lynn Hanna in a fifty-two-count information with racketeering, conspiracy to commit racketeering, operating an organized scheme to defraud, filing a false or fraudulent tax return, grand theft, sale of obscene material, and, relevant to this appeal, four counts of operating an unlicensed adult book store.1The charges against Hanna arose from the operation of Jerry's General Store, which the State alleged was an unlicensed adult book store.Hanna moved to dismiss the charges, contending that the definition of "adult book store" in Orange County's Adult Entertainment Code was unconstitutionally vague, and that the Code failed to provide for prompt judicial review in the event an application for an adult entertainment license was denied.Finding merit in those arguments, the trial court dismissed the four counts of operating an unlicensed adult book store.The State of Florida now appeals that order.For the reasons that follow, we reverse, and remand the matter with instructions that the dismissed charges be reinstated.
The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review.Racetrac Petroleum v. Delco Oil, Inc.,721 So.2d 376, 377(Fla. 5th DCA1998).Statutes and ordinances are presumed to be constitutional, and all reasonable doubts regarding the statute or ordinance must be resolved in favor of constitutionality.Wright v. State,739 So.2d 1230, 1231(Fla. 1st DCA1999)(citingState v. Kinner,398 So.2d 1360(Fla.1981);Gammon v. Cobb,335 So.2d 261(Fla.1976))."Accordingly, a defendant who challenges the constitutional validity of a statute bears a heavy burden of establishing its invalidity."Wright,739 So.2d at 1231(citingMilliken v. State,131 So.2d 889(Fla.1961)).
However, an exception to the general constitutional presumption enjoyed by statutes and ordinances exists respecting regulations affecting First Amendment rights.Ashcroft v. Am. Civil Liberties Union,542 U.S. 656, ___, 124 S.Ct. 2783, 2788, 159 L.Ed.2d 690(2004)(internal citation omitted).By contrast, content neutral, time and place restrictions that incidentally impact First Amendment rights enjoy the presumption of constitutionality.
The Orange County Adult Entertainment Code is a comprehensive licensing, zoning and regulatory ordinance governing the ownership, operation and location of all adult entertainment businesses in the county.Section 3-26 of the Code requires that any person operating an adult entertainment business apply for and obtain an adult entertainment license from the Orange County tax collector:
Orange County, Fla., Code§ 3-26(2002).It is a criminal offense to operate any adult entertainment business without the required license, as explained in section 3-127(1):
Orange County, Fla., Code§ 3-127(2002).
Section 3-6 of the Code defines "adult bookstore" as follows:
Orange County, Fla., Code§ 3-6(2002).Section 3-6 defines "adult material" as:
To be considered an "adult bookstore" in Orange County, a "substantial portion" of the establishment's merchandise must be "adult material."Hanna maintains that this is an unconstitutionally vague standard as it does not adequately define "substantial portion" and provides only a number of "factors" that the State may consider in deciding whether a particular business is an adult bookstore.We disagree.The definitions contained in the Code are reasonably specific and precise, bearing in mind that unavoidable imprecision is not fatal and celestial precision is not necessary.SeeMiller v. California,413 U.S. 15, 27-28 n. 10, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973);Roth v. United States,354 U.S. 476, 491-92, 77 S.Ct. 1304, 1 L.Ed.2d 1498(1957);Hart Book Stores, Inc. v. Edmisten,612 F.2d 821, 833(4th Cir.1979).
To avoid an attack on grounds of vagueness, an ordinance must define the criminal offense sufficiently so that ordinary people can understand what conduct is prohibited.SeeKolender v. Lawson,461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903(1983);Russ v. State,832 So.2d 901, 906(Fla. 1st DCA2002), review denied,845 So.2d 892(Fla.2003).It is not necessary for an ordinance to clarify every possible ambiguity in order to defeat a facial constitutional challenge.SeeRahmani v. State,748 S.W.2d 618, 626(Tex.App.Ct.1988).Rather, the principal inquiry is whether the law affords fair warning of what is proscribed.Id. at 624.
Section 3-6 of the Code explains that "substantial portion" for purposes of the definition of "adult bookstore," is "more than an insignificant or incidental portion," but not necessarily "a majority or predominant amount."Orange County, Fla., Code 3-6(1) & (2)(2002).Many ordinances incorporating the terms "substantial or significant" in the definition of "adult bookstores" have passed constitutional muster.See, e.g., ILQ Invs., Inc. v. City of Rochester,25 F.3d 1413, 1419(8th Cir.1994);15192 Thirteen Mile Rd. v. City of Warren,626 F.Supp. 803, 820-21(E.D.Mich.1985);Golden Triangle News, Inc. v. Corbett,689 A.2d 974, 984-85(Pa.Cmwlth.1997);City of Chicago v. Scandia Books, Inc.,102 Ill.App.3d 292, 58 Ill.Dec. 72, 430 N.E.2d 14, 18(1981)();see alsoMom N Pops, Inc. v. City of Charlotte,979 F.Supp. 372(W.D.N.C.1997)(), affirmed,162 F.3d 1155(4th Cir.1998)
The cases upholding statutes and ordinances using the term "substantial" or "significant" explain that:
A reasonable person, using common sense, is not...
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...Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So.2d 492, 500 (Fla.2003); see also State v. Hanna, 901 So.2d 201, 204 (Fla. 5th DCA 2005) (“The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review.”). Because Ku......
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...Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So.2d 492, 500 (Fla.2003); see also State v. Hanna, 901 So.2d 201, 204 (Fla. 5th DCA 2005) (“The interpretation of a statute or an ordinance is a purely legal matter and is subject to de novo review.”). Because Ku......
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