NANCY LYNN MARRS AND GEORGE RUDOLPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Petitioners challenged an Escambia County ordinance prohibiting the knowing exposure of sexual organs and breasts in commercial establishments. The court held the ordinance unconstitutional as void for vagueness because it fails to provide fair notice of what conduct is prohibited and fails to limit the proscribed acts sufficiently by location.
The ordinance is unconstitutional and void for vagueness because it fails to convey a sufficiently definite warning as to the proscribed conduct and does not limit the application of the prohibition sufficiently as to place, thereby violating the due process clause of the Fourteenth Amendment and Article I, Section 9 of the Florida Constitution.
[1] A statute or ordinance must convey a sufficiently definite warning as to proscribed conduct, measured by common understanding and practice, to avoid violating due process…
[2] When people of ordinary intelligence must guess at the meaning of a statute or ordinance and differ as to its application, it violates the due process clauses of the U.S. …
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Join FLexlaw to unlock all legal intelligence“the language of a statute or ordinance must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice”
Establishes the constitutional standard for vagueness that the ordinance must meet
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Join FLexlaw to unlock all legal intelligenceNancy Lynn Marrs and George Rudolph were charged with violating Escambia County Ordinance 76-1, Section 4, which prohibits owners and operators of com…
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PER CURIAM.
Petitioners were adjudicated guilty, after pleading nolo contendere, of violating Es-cambia County Ordinance 76 — 1, Section 4. Their conviction in the Escambia County Court was affirmed by the Circuit Court without opinion. They now petition this Court for a writ of certiorari. We have jurisdiction. Art. V, § 4(b)(3), Fla.Const. (1972); Fla.R.App.P. 9.030(b)(2)B.
Petitioners were charged with a violation of Escambia County Ordinance 76 — 1, Section 4, which provides:
It shall be unlawful for any owner, operator or person in charge of any commercial establishment within Escambia County, Florida, to knowingly permit, encourage, induce or in any manner promote the unlawful exposure or exhibit of the sexual organs, genitals, buttocks, or breasts of any person, whether such parts are covered or uncovered, within the confines of such commercial establishment.
After their motion to dismiss attacking the constitutionality of the statute was denied, the petitioners pled nolo contendere to the charge, reserving their rights for appellate review.
Doubtless, an ordinance or statute is presumed to be constitutional. However, it is well settled that the language of a statute or ordinance must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. Zachary v. State, 269 So. 2d 669 (Fla.1972). When people of ordinary intelligence must necessarily guess at its meaning and differ as to its application, the statute or ordinance violates the due process clause of the 14th Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution (1968). Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State ex rel. Lee v. Buchanan, 191 So. 2d 33 (Fla.1966). In view of the foregoing principles, we must conclude that this ordinance does not pass constitutional muster. In reaching this conclusion we note the rather succinct observation made by Judge Hubbart of the Third District Court of Appeal regarding a somewhat similar municipal ordinance:1
In view of the scanty female apparel which is now socially acceptable in public particularly on beaches, the description of the type of clothing forbidden by this ordinance is extremely unclear. Moreover, the ordinance does not limit the proscribed acts as to place.
Steffens v. State ex rel. Lugo, 343 So. 2d 90, 91 (Fla. 3rd DCA 1977). The Escambia County Ordinance suffers from the same infirmities. It, too, is rather vague as to the type of clothing forbidden. Additionally, it does not limit the proscribed acts sufficiently as to place. Here, too, a woman might very well be in violation of the ordinance if she bared her breasts while taking a shower in a public shower stall at a spa or a gym or, conceivably, while undergoing an examination at a doctor’s office. Compare Hoffman v. Carson, 250 So. 2d 891 (Fla. 1971), appeal dismissed, 92 S.Ct. 453, 404 U.S. 981, 30 L.Ed.2d 365 (1971) (Proviso in Section 800.03, Florida Statutes, that: “This act shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose,” sufficiently restricts the application of the statute so as to bring it within common understanding.)
Accordingly, we hold that Escambia County Ordinance 76 — 1, Section 4 is unconstitutional as being void for vagueness. The petition for writ of certiorari is GRANTED, and this cause is REVERSED and REMANDED to the Escambia County for further proceedings consistent with this opinion.
SHAW, JOANOS and THOMPSON, JJ., concur. . It shall be unlawful for female waitresses, entertainers, or other employees of any public business to expose themselves above the waist to the extent that the breasts are bare or so thinly covered by mesh, transparent net, lawn skin tight materials which are flesh colored and worn skin tight, so as to appear uncovered.
It shall also be unlawful for any owner, manager, or other employees of such an establishment to permit that described immediately above . . .
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del Percio v. The City OF Daytona Beach, 449 So. 2d 323 (Fla. 5th DCA 1984)…ute. As such it must be strictly interpreted, and it should give clear and [*331] fair warning as to the conduct which it is meant to prohibit. Zachary v. State, 269 So. 2d 669 (Fla.1972); State v. Buchanan, 191 So. 2d 33 (Fla.1966); Marrs v. State, 413 So. 2d 774 (Fla. 1st DCA 1982); Steffens v. State, 343 So. 2d 90 (Fla. 3d DCA 1977). The unconstitutionality of vague laws has long been recognized by our state supreme court and the federal Supreme Court. In Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct…1 / 4
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Fillingim v. State, 446 So. 2d 1099 (Fla. 1st DCA 1984)…sense indicates that any form of nudity coupled with alcohol in a public place begets undesirable behavior. This legislation prohibiting nudity in public will, once and for all, outlaw conduct which is now quite out of hand." . Cf. Marrs v. State, 413 So. 2d 774 (Fla. 1st DCA 1982); Steffens v. Lugo, 343 So. 2d 90 (Fla. 3d DCA 1977). . Some of the terms in the prohibition section of the ordinance are defined as follows in section 6: “(d) ‘[Cjornmercial’ means operated for pecuniary gain, which shall be pr…
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McGUIRE v. State, 489 So. 2d 729 (Fla. 1986)…fore blurs the proper focus of its inquiry. The officer’s interpretation of the rule does not remove the cloud of vagueness. [*734] The rule in question is closer to the municipal ordinances struck down as unconstitutionally vague in Marrs v. State, 413 So. 2d 774 (Fla. 1st DCA 1982), and Steffens v. State, 343 So. 2d 90 (Fla. 3d DCA 1977). In fact, the ordinances there struck down seem models of clear specificity when compared to the “commonly accepted standards” criteria in the instant statute. As the Third…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Connally v. Gen. Constr. Co., 269 U.S. 385 (U.S. 1926)
- State of Fla. ex rel. Joel N. LEE v. Buchanan, 191 So. 2d 33 (Fla. 1966)
- Zachary v. State, 269 So. 2d 669 (Fla. 1972)
- Hoffman v. Carson, 250 So. 2d 891 (Fla. 1971)
- Steffens v. The State of Fla. ex rel. Elsa Iris Lugo, 343 So. 2d 90 (Fla. 3d DCA 1977)
- Emhart Corp. v. Pennsylvania, 404 U.S. 981 (U.S. 1971)
- Vill. of W. Milwaukee v. Area Bd. of Vocational, 404 U.S. 981 (U.S. 1971)