State v. De La Llana, 96-04260

• Decision Date: 16 May 1997
• Docket Number: No. 96-04260,96-04260
• Citation: 693 So.2d 1075
• Parties: 22 Fla. L. Weekly D1248 STATE of Florida, Appellant, v. Jack S. DE LA LLANA, Appellee.
• Court: Florida District Court of Appeals

Page 1075

693 So.2d 1075

22 Fla. L. Weekly D1248

STATE of Florida, Appellant, v. Jack S. DE LA LLANA, Appellee.

No. 96-04260.

District Court of Appeal of Florida Second District.

May 16, 1997.

Robert A. Butterworth, Attorney General, Tallahassee, and Diana Bock, Assistant Attorney General and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellant.

Thomas A. Smith, Tampa, for Appellee.

LAZZARA, Judge.

The state of Florida appeals a county court order dismissing a criminal charge embodied in a notice to appear which determined that section 893.13(7)(a)5., Florida Statutes (1995), which formed the basis for the charge, was unconstitutionally vague and overbroad. We have jurisdiction. See Fieselman v. State, 566 So.2d 768, 770 (Fla.1990) (district court of appeal has jurisdiction to review county court order declaring state statute constitutionally invalid). Because we conclude that the statute is neither overbroad nor impermissibly vague in all of its applications and thus is facially constitutional, we reverse and remand for further proceedings.

The state charged the appellee, Jack De La Llana, by notice to appear with violating section 893.13(7)(a)5., which makes it unlawful for any person:

To keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

(Emphasis added.) ¹ According to the allegations of the notice, the appellee, in his capacity as the manager of a licensed bar business known as the "Level 2," violated the statute by keeping or maintaining those premises when controlled substances (cocaine) were used, kept, or sold there by patrons of the business while he was present. For purposes of our decision, we must accept these well-pleaded allegations as true and as the "hypothesis" for the order granting the motion to dismiss. See United States v. National Dairy Prods. Corp., 372 U.S. 29, 33 n. 2, 83 S.Ct. 594, 598 n. 2, 9 L.Ed.2d 561 (1963).

The appellee filed a motion to dismiss alleging that the statute was impermissibly vague and overbroad because it failed to define the terms "keep or maintain" thus causing "human beings of common intelligence to necessarily guess or speculate as to the meaning of these terms and differ as to their application." He contended, therefore, that the statute "violates the equal protection of law and results in the unconstitutional deprivation of due process." Following a very brief hearing consisting of nothing more than a recapitulation of the appellee's motion and a perfunctory discussion of the law, the trial court orally granted the motion. Its announced reason for doing so was based on a "finding that [section] 893.13(7)(a)5. is unconstitutional in that it fails to apprise people sufficiently as to what conduct is prohibited in that it fails to define the terms 'keep' or 'maintain.' " The trial court later rendered a written order in which it again emphasized that the absence of a definition in the statute as to the terms "keep or maintain" "leads human beings of common intelligence to necessarily guess or speculate as to the meaning of these terms and could lead to a differing of their application." The trial court concluded, therefore, that the statute is "impermissibly vague and overbroad" and that "[b]y failing to define these key terms, the statute violates the equal protection of the law and results in the unconstitutional deprivation of due process."

We begin our resolution of this appeal by limiting the focus of the analysis we must employ in deciding the constitutionality of section 893.13(7)(a)5. As noted, the appellee successfully challenged the facial validity of the statute below on the twofold basis of vagueness and overbreadth. Our first task, therefore, "is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail." See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (footnote omitted); see also Schall v. Martin, 467 U.S. 253, 269 n. 18, 104 S.Ct. 2403, 2412 n. 18, 81 L.Ed.2d 207 (1984) (outside the limited First Amendment context, a criminal statute may not be attacked as overbroad).

In this case, we are unable to fathom any constitutionally protected conduct falling within the penumbra of the First Amendment which would be implicated by this statute. See Borras v. State, 229 So.2d 244, 246 (Fla.1969) (holding that the possession and use of marijuana in the privacy of one's home does not enjoy the protection of the First Amendment, does not abridge any rights under the Fourteenth Amendment, and does not violate the right to privacy), cert. denied, 400 U.S. 808, 91 S.Ct. 70, 27 L.Ed.2d 37 (1970). Thus, if the possession and use of marijuana within the inner sanctum of a private residence does not enjoy the protective mantle of the First Amendment, then it can hardly be argued that a legislative enactment prohibiting the keeping or maintaining of a place where illegal substances such as cocaine are used, kept, and sold implicates conduct falling within protective scope of that amendment.

Furthermore, it is clear to us that the terms "overbroad" and "vague" were used synonymously by the appellee and the trial court even though they are separate and distinct doctrines of constitutional dimension. See Southeastern Fisheries Ass'n v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla.1984). In that case, the supreme court cautioned courts and lawyers against using these terms interchangeably and explained that the doctrine of overbreadth applies only if legislation is susceptible of application to conduct protected by the First Amendment and that the doctrine of vagueness, which has a broader application, was developed to assure compliance with the due process clause. Id. Accordingly, it would be inappropriate for us in deciding this case to engage in a constitutional analysis using the principles of the overbreadth doctrine because the statute clearly does not reach activities protected by the First Amendment and is, therefore, not constitutionally overbroad. Id.

In light of our limited analytical focus, we turn to our recent decision in State v. Barnes, 686 So.2d 633 (Fla. 2d DCA 1996), in which we explained the various principles that a court must apply when confronted with a constitutional vagueness challenge to a criminal statute in which First Amendment rights and the doctrine of overbreadth are not implicated. In accord with Barnes and the cases it relied upon, we must first examine the appellee's conduct in the record before us in evaluating his vagueness claim before we may analyze other applications of the statute. Id. at 637. If the record establishes that the appellee engaged in some conduct clearly prohibited by the plain and ordinary meaning of the statute, then he is foreclosed from mounting a successful vagueness challenge to the statute and from complaining, because of a lack of standing, of its vagueness as applied to the hypothetical conduct of others. Id. ² Essentially, therefore we must decide whether the appellee has met his "heavy burden" of establishing that "no set of circumstances exists under which [the statute] would be valid" because the fact that "it might operate unconstitutionally under some conceivable set of circumstances is insufficient" to demonstrate that the statute is " 'facially' unconstitutional." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) (footnote omitted).

Measured by these principles, we first conclude that the underlying premise of the trial court's order that the lack of a statutory definition for the terms "keep or maintain" renders the statute unconstitutionally vague and thus subject to differing applications was analytically flawed. It is a well-settled principle of constitutional jurisprudence that "[t]he legislature's failure to define a statutory term does not in and of itself render a penal provision unconstitutionally vague." State v. Hagan, 387 So.2d 943, 945 (Fla.1980). In the absence of such a definition, a court may resort to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term, see Gardner v. Johnson, 451 So.2d 477, 478 (Fla.1984), as well as case law which has construed the term in the context of another statute. See Tingley v. Brown, 380 So.2d 1289, 1290 (Fla.1980).

In line with Gardner, we first look to the dictionary definitions of "keep" and "maintain" by using the same source that the supreme court used in Green v. State, 604 So.2d 471, 473 (Fla.1992), to ascertain the meaning of an undefined statutory term. That source defines "keep" in one of its applications, which is appropriate to this case, to mean "conduct, manage ...: carry on [keep] a business...." Merriam-Webster's Third New International Dictionary 1235 (1986). It also defines "maintain" in one of its applications to mean "carry on." Id. at 1362; see also Black's Law Dictionary 868, 953 (6th ed.1990) (defining "keep" to mean "[t]o maintain, carry on, conduct, or manage; as, to 'keep' a bawdy house, gaming table, nuisance or the like" and "maintain" to mean "carry on"). We conclude, therefore, that the plain and ordinary meaning of these terms as used in the statute clearly contemplates conduct consisting of the conducting, managing, and carrying on of the affairs of a business enterprise.

Our conclusion is further buttressed by utilizing the principles of Tingley and analyzing how the terms "keep" and "maintain" have been construed by an appellate court in the context of another criminal statute, section 849.01, Florida Statutes (1995),...