Wyche v. State

• Decision Date: 25 March 1993
• Docket Number: No. 77440,77440
• Parties: , 18 Fla. L. Week. S171 Renetha C. WYCHE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 231

619 So.2d 231

61 USLW 2659, 18 Fla. L. Week. S171

Renetha C. WYCHE, Petitioner, v. STATE of Florida, Respondent.

No. 77440.

Supreme Court of Florida.

March 25, 1993.

Rehearing Denied May 26, 1993.

James Marion Moorman, Public Defender and Stephen Krosschell, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for petitioner.

Robert A. Butterworth, Atty. Gen. and Peggy A. Quince, Asst. Atty. Gen., Pamela K. Akin, City Atty. of Tampa and Tyron Brown, Asst. City Atty., Tampa, for respondent.

James T. Miller, Jacksonville, amicus curiae, for Florida Ass'n of Criminal Defense Lawyers (FACDL).

BARKETT, Chief Justice.

We have for review Wyche v. State, 573 So.2d 953 (Fla. 2d DCA 1991), in which the district court certified the following question as one of great public importance:

Is section 24-61, City of Tampa Code (1987), facially constitutional?

We have jurisdiction. ¹ We answer the certified question in the negative and quash the district court's decision as it relates to the loitering ordinance.

Renetha C. Wyche was arrested after police observed her on a street corner in a skimpy outfit waving to passersby and entering a car that had pulled to the curb. She was convicted of loitering for the purpose of prostitution under section 24-61, City of Tampa Code (1987). ² On appeal the district court affirmed the conviction and certified the question of the ordinance's facial constitutionality to this Court.

We find the ordinance unconstitutional because it unnecessarily infringes on constitutional rights; it is too vague because a violation of the law is determined based on law enforcement officers' discretion; it violates substantive due process by punishing innocent activities; and it impermissibly provides a greater penalty than that imposed by state statutes for similar criminal conduct. ³

The First Amendment to the United States Constitution and article I, section 4 of the Florida Constitution protect the rights of individuals to express themselves in a variety of ways. The constitutions protect not only speech and the written word, but also conduct intended to communicate. See, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). Further, the First Amendment and article I, section 5 of the Florida Constitution protect the rights of individuals to associate with whom they please and to assemble with others for political or for social purposes. See, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); State v. Dodd, 561 So.2d 263 (Fla.1990).

When lawmakers attempt to restrict or burden fundamental and basic rights such as these, the laws must not only be directed toward a legitimate public purpose, but they must be drawn as narrowly as possible. See Firestone v. News-Press Publishing Co., 538 So.2d 457 (Fla.1989). As the United States Supreme Court has noted, "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Put another way, statutes cannot be so broad that they prohibit constitutionally protected conduct as well as unprotected conduct. News-Press Publishing Co., 538 So.2d at 459.

When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad. See Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla.1984). ⁴ This overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court--those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). The doctrine contemplates the pragmatic judicial assumption that an overbroad statute will have a chilling effect on protected expression. City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985).

The Tampa ordinance, by potentially applying to such conduct as talking and waving to other people, clearly implicates protected freedoms. The ordinance limits the rights of those who have been previously convicted of prostitution to engage in noncriminal routine activities. The ordinance suggests that it is incriminating when a "known prostitute" "repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms, or any bodily gesture." Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida ⁵ as well as federal law. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest. A formerly convicted prostitute engaging in these activities, however, risks prosecution under the ordinance for loitering, and the risk of arrest certainly would deter the exercise of these rights. See Johnson v. Carson, 569 F.Supp. 974, 979 (M.D.Fla.1983).

Wyche correctly asserts that the ordinance, which prohibits loitering "in a manner and under circumstances manifesting the purpose of" engaging in acts of prostitution, does not require proof of unlawful intent as an element of the offense. Indeed, the ordinance allows arrest and conviction for loitering under circumstances merely indicating the possibility of such intent, such as beckoning to passersby and waving to motorists, which could be occurring without any intent to engage in criminal activity. Thus, the ordinance affects and chills constitutionally protected activity.

Similar ordinances likewise have been invalidated by numerous other courts because of the ordinances' potential for punishing innocent conduct. See, e.g., Northern Virginia Chapter, ACLU v. City of Alexandria, 747 F.Supp. 324, 328 (E.D.Va.1990) ("A person may be prosecuted under the ordinance for engaging in such innocuous activity as speaking in a public place for 15 minutes, shaking hands, and exchanging small objects such as business cards or phone numbers on small pieces of paper."); Johnson v. Carson, 569 F.Supp. at 978 ("[A]nyone standing on the street corner repeatedly talking to passers-by, even if they are old friends, could be violating the ordinance."); Coleman v. City of Richmond, 5 Va.App. 459, 364 S.E.2d 239, 243 (1988) ("A hitchhiker could be arrested and convicted because she waved and beckoned to cars though she said not a word regarding solicitation or prostitution."); Christian v. City of Kansas City, 710 S.W.2d 11, 13 (Mo.App.1986) ("If the circumstances which allegedly reflect one's illicit intentions were held to be well grounded in constitutional jurisprudence, this court would have to condone potential arrests and convictions for ... window shopping, waiting on the corner for a bus, waving to friends, or hailing a taxicab.").

Some state courts have likewise recognized the basic deficiencies of these overbroad ordinances, but have attempted to solve the problem by adopting narrowing constructions in an effort to limit the ordinances' scope to unprotected conduct. These courts have construed the language "manifesting the purpose of" to require evidence of specific intent as an element of the offense. See, e.g., City of Tacoma v. Luvene, 118 Wash.2d 826, 827 P.2d 1374 (1992); City of Milwaukee v. Wilson, 96 Wis.2d 11, 291 N.W.2d 452 (1980); City of Akron v. Holley, 53 Ohio Misc.2d 4, 557 N.E.2d 861 (Ohio Mun.1989). The court in Luvene also found an overt act requirement in the word "manifesting," noting that the culpable mental state must coexist with identifiable, articulable conduct reasonably consistent with unlawful intent. 827 P.2d at 1383. Other courts, however, have invalidated the ordinances even though they included requirements of specific intent to engage in unlawful behavior. Northern Virginia Chapter ACLU; Coleman.

We find that it is impossible to preserve the constitutionality of the Tampa ordinance without effectively rewriting it, and we decline to "legislate" in that fashion. Courts may not go so far in their narrowing constructions so as to effectively rewrite legislative enactments. News-Press Publishing Co., 538 So.2d at 460; Brown v. State, 358 So.2d 16, 20 (Fla.1978). Even if we were to find that the ordinance could be preserved facially by writing in requirements of specific intent to engage in prohibited activity and sufficient overt activity to clearly manifest that intent, the ordinance still would be subject to unconstitutional application. A series of adjudications limiting the application of the ordinance would be unacceptable because it would result in a chilling effect on protected speech during the pendency of judicial proceedings delineating the contours of the ordinance. Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 576, 107 S.Ct. 2568, 2573, 96 L.Ed.2d 500 (1987).

Moreover, we also find merit in Wyche's argument that the ordinance is unconstitutionally vague. The principles of the vagueness doctrine address compliance with the concept of due process. Southeastern Fisheries, 453 So.2d at 1353; see also State v. Wershow, 343 So.2d 605, 608 (Fla.1977) (noting that vague statutes violate article I, section 9 of the Florida Constitution). A statute or ordinance is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is...