State v. Long

• Decision Date: 31 March 1989
• Docket Number: No. 88-00246,88-00246
• Citation: 14 Fla. L. Weekly 824,544 So.2d 219
• Parties: 14 Fla. L. Weekly 824 STATE of Florida, Appellant, v. Todd Edward LONG, Phyllis Ann Maxwell, Cathy Irene Armstrong, Edward Dee Armstrong, John E. Shea, Tommie Lynn Stall, and CMH Enterprises, Inc., d/b/a Varsity Theatre, Appellees.
• Court: Florida District Court of Appeals

Page 219

544 So.2d 219

14 Fla. L. Weekly 824

STATE of Florida, Appellant, v. Todd Edward LONG, Phyllis Ann Maxwell, Cathy Irene Armstrong, Edward Dee Armstrong, John E. Shea, Tommie Lynn Stall, and CMH Enterprises, Inc., d/b/a Varsity Theatre, Appellees.

No. 88-00246.

District Court of Appeal of Florida Second District.

March 31, 1989.

Rehearing Denied June 3, 1989.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Asst. Public Defender, Bartow, for appellee, Tommie Lynn Stall.

John H. Weston, Clyde F. DeWitt, and Cathy E. Crosson of Brown, Weston & Sarno, Beverly Hills, Cal., and Bruce Randall, Fort Lauderdale, and John C. Wilkins, III, Bartow, for appellees, Todd Edward Long, Phyllis Ann Maxwell, Cathy Irene Armstrong, Edward Dee Armstrong, John E. Shea, and CMH Enterprises, Inc., d/b/a Varsity Theatre.

SCHOONOVER, Judge.

The State of Florida appeals an order dismissing an amended information filed against the appellees, Todd Edward Long, Phyllis Ann Maxwell, Cathy Irene Armstrong, Edward Dee Armstrong, John E. Shea, Tommie Lynn Stall, and CMH Enterprises, Inc., doing business as the Varsity Theatre. We find that the trial court erred in dismissing the information and, accordingly, reverse.

The instant controversy arose out of certain activities allegedly conducted at the Varsity Theatre in Polk County, Florida between September 12, 1985, and March 7, 1987. Count I of the forty-seven count information charged each of the appellees with violating the Florida RICO (Racketeer Influenced and Corrupt Organization) Act, ¹ based upon forty-eight underlying alleged violations of section 847.011, Florida Statutes (1985 and Supp.1986). The alleged underlying violations of count I involved the showing, sale, distribution, and rental of obscene movies, tapes, magazines, periodicals or pamphlets, as well as articles or instruments for obscene purposes, or the knowing possession of such materials with the intent to do so. As for the remaining forty-six counts of the information, each of the appellees was charged with one or more counts of violating section 847.011, Florida Statutes (Supp.1986).

The appellees filed several pretrial motions, including motions to dismiss the information and a motion requesting the trial court to make a pretrial determination of the reasonable man standard applicable to obscenity prosecutions. After a hearing on these motions, the trial court entered an order which, among other things, dismissed the entire information. The trial court declared section 847.011 unconstitutional under both the United States and Florida constitutions based upon its conclusions that the statute violates the due process clause of the United States Constitution because of vagueness, fails to conform to the standards enunciated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), and violates the privacy provision of the Florida Constitution. In addition, the trial court found that the Florida RICO Act, when interpreted in conjunction with the prohibitions of section 847.011 relating to obscene material, has an unconstitutional "chilling effect" upon protected speech. Finally, although unnecessary to the dismissal, the trial court set forth the reasonable man standard which would be applied in the event that the case proceeded to trial. The state filed this timely appeal.

We agree with the state's contentions that the trial court erred in (1) declaring section 847.011 unconstitutional under the United States and Florida constitutions, (2) finding that the combined provisions of the Florida RICO Act and section 847.011 have an unconstitutional chilling effect upon protected speech, and (3) defining the reasonable man standard applicable to offenses involving obscene materials.

CONSTITUTIONALITY OF SECTION 847.011

The trial court's finding that section 847.011 violates the due process clause of the United States Constitution because of vagueness was based upon its analysis of the statutory definition of obscene material. All of the offenses charged in the information were based upon alleged acts which, if proven, would constitute violations of either the 1985 version or the 1986 amended version of section 847.011(1)(a). Section 847.011(11), Florida Statutes (1985), provided:

For the purposes of this section, the test of whether or not material is obscene is: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

In 1986, the Florida Legislature amended chapter 847 and replaced the foregoing definition with the following definition:

When used in this chapter:

....

(7) "Obscene" means the status of material which:

(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and

(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.

See Ch. 86-238, Laws of Fla.; § 847.001, Fla.Stat. (Supp.1986). Contrary to the trial court's conclusion that section 847.011 violates due process because the statutory definition of obscene material is vague, both of the above quoted definitions have withstood void for vagueness challenges. See Rhodes v. State, 283 So.2d 351 (Fla.1973); Haggerty v. State, 531 So.2d 364 (Fla. 1st DCA 1988). Following Rhodes and Haggerty, we hold that section 847.011 is not unconstitutional due to vagueness.

We also disagree with the trial court's finding that section 847.011 is unconstitutional for failure to comply with the standards enunciated by the United States Supreme Court in Miller and Pope. The doctrine of "authoritative construction" requires a different determination. See Rhodes. The trial court's erroneous conclusion was based, at least in part, on an analysis of the definition of obscene material contained in section 847.07(2), Florida Statutes (1985). That definition, however, is not applicable to offenses charged under section 847.011 and, therefore, is not relevant to the facts or legal issues involved in this case. See § 847.011(11), Fla.Stat. (1985); § 847.001(7), Fla.Stat. (Supp.1986).

We also find that the trial court improperly concluded that section 847.011 violates the right to privacy afforded under article I, section 23 of the Florida Constitution. Article I, section 23 provides:

Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.

The appellees essentially argue that section 847.011 violates the Florida Constitution because the statute prevents their customers from acquiring obscene materials which, under Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), they are entitled to possess in the privacy of their homes.

Before addressing the merits of the appellees' argument, we must first address the state's contention that the appellees do not have standing to assert the privacy rights of their customers. We recognize that constitutional rights are personal in nature and generally may not be asserted vicariously. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Sandstrom v. Leader, 370 So.2d 3 (Fla.1979). This restriction, however, is subject to limited exceptions when first amendment rights are involved and where individuals who are not parties to an action stand to lose by its outcome but have no effective avenue to preserve their rights. Broadrick. See also, Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The concept of vicarious standing has been applied specifically in the right of privacy area to permit a party to assert the constitutional rights of another. See Eisenstadt; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The Florida courts have recognized this exception to the general rules of standing where enforcement of a challenged restriction would adversely affect the rights of individuals who are not parties to the lawsuit but have no effective avenue of preserving their rights themselves. See State v. Saiez, 489 So.2d 1125, 1127 n. 2 (Fla.1986); Higdon v. Metropolitan Dade County, 446 So.2d 203, 207 (Fla. 3d DCA 1984). Since section 847.011(1)(a) prohibits distribution of obscene materials, the customers whose privacy rights could possibly be violated by the statute are not subject to prosecution and, consequently, they have no effective avenue of preserving their rights. See Eisenstadt. In addition, enforcement of the statute will "materially impair" the ability of the appellees' customers to obtain the materials which the appellees are prohibited from distributing under section 847.011(1)(a). See Eisenstadt; Griswold. We, therefore, find that the appellees have standing to assert a right of privacy claim on behalf of their customers in this case.

Having determined that the appellees have standing, we proceed to the merits of the trial court's ruling that section 847.011 is unconstitutional because it violates the right of privacy provision of the Florida Constitution. Under the United States Constitution, a person has the right to possess obscene materials in the privacy of his own home. Stanley. However, this right does not extend to movie theatres exhibiting obscene material only to consenting adults, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); to private...