STATE OF FLORIDA, APPELLANT,
v.
YVONNE DAVIS, APPELLEE

Fla. 4th DCA | 1993-09-08
No. 92-2344
ANSTEAD and GUNTHER, JJ., and MAGER, GERALD, Senior Judge, concur.
623 So. 2d 622 Florida District Court of Appeal, Fourth District (1993) Positive Treatment
Cited by 8 cases

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Synopsis

The appellate court reversed a lower court's decision that a Florida statute criminalizing lewd acts was unconstitutional. The court found the statute was not vague, overbroad, sexually discriminatory, or violative of the single-subject rule, and that the state had a compelling interest in regulating such conduct.


Holding

The court held that Florida Statute section 796.07(3) is constitutional. It found the statute was not unconstitutionally vague, overbroad, or ambiguous, nor did it violate the single-subject rule or discriminate based on sex. The court also determined the state has a compelling interest in regulating such conduct.


Headnotes

[1] A statute is not unconstitutionally vague, overbroad, or ambiguous when the term "lewdness" is used, as precedent has established its constitutionality.

[2] A statute does not violate the single subject rule if its title is sufficiently broad to encompass the general subject matter of the enactment, even if it addresses multi…

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Key Quotes

“Based upon our review of the applicable case law, we answer the certified questions in the negative and reverse and remand for further proceedings.”

This quote states the court's overall conclusion and action regarding the certified questions and the appeal.

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Facts & Procedural History

Yvonne Davis was charged with violating a Florida statute prohibiting lewd acts after engaging in conduct with an undercover police detective in a pri…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The state appeals a final order of the county court dismissing an information charging appellee with violating section 796.-07(3), Florida Statutes (1991), having found this section is unconstitutional. The county court also entered an amended final order wherein it certified the following four questions to this court:

WHETHER F.S. 796.07(3)(a) IS UNCONSTITUTIONAL IN THAT IT REPRESENTS AN ABUSE OF POLICE POWER OF THE STATE OF FLORIDA DUE TO THE FACT THAT THERE IS NO LEGITIMATE, CLEAR, SUBSTANTIAL AND COMPELLING INTERESTS OF THE STATE OF FLORIDA IN REGARDS TO ACTS BETWEEN CONSENTING ADULTS IN PRIVATE;

WHETHER F.S. 796.07(3) IS UNCONSTITUTIONAL IN THAT IT IS VAGUE, OVERBROAD AND AMBIGUOUS;

WHETHER F.S. 796.07(3)(a) IS UNCONSTITUTIONAL AS IT IS SEXUALLY DISCRIMINATING;

WHETHER F.S. 796.07(3)(a) IS UNCONSTITUTIONAL AS IT VIOLATES THE SINGLE SUBJECT REQUIREMENTS OF ARTICLE III SECTION 6 OF THE FLORIDA CONSTITUTION.

Based upon our review of the applicable case law, we answer the certified questions in the negative and reverse and remand for further proceedings.

Appellee was charged with engaging in a lewd act in violation of section 796.07(3). Ap-pellee’s memorandum of law in support of her motion to dismiss showed a Fort Lauder-dale Police Department detective entered the premises of a business known as “Celebrity Models;” inquired about the various services offered; selected the service he desired; paid a fee and accompanied appellee into a private, closed room where the act alleged in the information occurred.1 No one else was present in the room except for the detective and appellee. The building housing the-business was constructed in a manner wherein members of the public could not see into the premises.

We address the specific points on appeal as presented in the briefs. With respect to the first allegation that section 796.07(3) is unconstitutional because it is vague, over- broad and ambiguous in its use of the term “lewdness,” the Supreme Court of Florida held in Warren v. State, 572 So. 2d 1376 (Fla.1991), the word “lewdness” as used in section 796.07 was not unconstitutionally vague. Similar conclusions were reached by the supreme court in McKenney v. State, 388 So. 2d 1232 (Fla.1980) and Bell v. State, 289 So. 2d 388 (Fla.1973). We are constrained to follow the decisions of the supreme court on this issue, particularly where the matter has been addressed as recently as in the past two years. See Hoffman v. Jones, 280 So. 2d 431 (Fla.1973).

With regard to the contention that section 796.07(3) violates the single subject rule relating to the enactment of statutes as provided in Article III, Section 6 of the Florida Constitution, our examination of the legislative act giving rise to section 796.07(3) reflects that its title is sufficiently broad to connect it with the general subject matter of the enactment and that it does not violate the single subject rule simply because it embraces prostitution, lewdness and assignation. See Burch v. State, 558 So. 2d 1 (Fla.1990); In re Advisory Op. to the Governor, 509 So. 2d 292 (Fla.1987); Smith v. Department of Ins., 507 So. 2d 1080 (Fla.1987); and State v. McDonald, 357 So. 2d 405 (Fla.1978). See also Loxahatchee River Envtl. Control Dist. v. School Bd. of Palm Beach County, 515 So. 2d 217 (Fla.1987).

With respect to the claim that section 796.07(3) is unconstitutional because it is sexually discriminatory, our review of this section reflects it is gender neutral on its face and applies to both males and females and, therefore, is not sexually discriminatory. See State v. Lick, 390 So. 2d 52 (Fla.1980).2

Finally, the claimed unconstitutionality of section 796.07(3) as violating the right of privacy is at odds with the state’s compelling interest in outlawing prostitution, assignation and lewd behavior, particularly where such conduct involves the sale of services in a commercial enterprise. See Stall v. State, 570 So. 2d 257 (Fla.1990), cert. denied, — U.S. -, 111 S.Ct. 2888, 115 L.Ed.2d 1054 (1991). The record below, furthermore, reflects appellee did not have a reasonable expectation of privacy at a place where the public could patronize. See Winfield v. Division of Pari-Mutuel Wagering, Dept. of Business Regulation, 477 So. 2d 544 (Fla.1985).3

Accordingly, the order appealed from is reversed, the amended information is reinstated and the cause is remanded to the trial court for further proceedings consistent herewith.4

ANSTEAD and GUNTHER, JJ., and MAGER, GERALD, Senior Judge, concur. . The amended information charged appellee with unlawfully engaging in a lewd act as follows: "... dancing topless in close proximity to Richard Love, encouraging him to masturbate and placing his hand on her inner thigh, in violation of F.S. 796.07(3) ...”

.We are unable to discern from the record below the existence of any evidence reflecting selective enforcement of section 796.07(3). See also Thomas v. State, 583 So. 2d 336 (Fla. 5th DCA 1991) (failure to prosecute all offenders is not grounds for a claim of denial of equal protection), approved, 614 So. 2d 468 (Fla.1993).

. The challenged statute serves a compelling state interest through the use of the least intrusive means. See Winfield, 477 So. 2d at 544.

. This court's disposition relates to the legal issues raised and should not be construed as dis-positive of any factual or evidentiary matter that may later be presented.


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Citator

Cited By

  • State v. Conforti, 688 So. 2d 350 (Fla. 4th DCA 1997)
    …lees acknowledge Warren but request this court to readdress the issue, maintaining that the definition of lewdness in section 796.01(l)(b) is unwieldy in practice. In 1993, we rejected this argument and declined to revisit the issue. State v. Davis, 623 So. 2d 622 (Fla. 4th DCA 1993). We are bound by the supreme court’s decision that section 796.07(l)(b) is not unconstitutionally vague. See id. at 624. We also reverse the trial court’s determination that section 796.07(l)(b) is overbroad. A statute is overbr…
  • Ward v. State, 636 So. 2d 68 (Fla. 5th DCA 1994)
    …cted to be. See Chesebrough v. State, 255 So. 2d 675 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972); Duvallon v. State, 404 So. 2d 196 (Fla. 1st DCA 1981). Cf. State v. Werner, 609 So. 2d 585 (Fla.1992); State v. Davis, 623 So. 2d 622 (Fla. 4th DCA 1993); Joel E. Smith, J.D., Annotation, What Constitutes “Public Place” within Meaning of Statute Prohibiting Commission of Sexual Act in Public Place, 96 A.L.R.3d 692 (1979); Annotation Criminal defense predicated upon indecent exposu…
  • State v. Kees, 919 So. 2d 504 (Fla. 5th DCA 2005)
    …d district held that a lap dance performed in public constituted lewd conduct in violation of section 796.07 of the Florida Statutes, with no indication that proof was required that someone was offended by the defendant’s conduct. In State v. Davis, 623 So. 2d 622 (Fla. 4th DCA 1993), the fourth district reversed the county court’s dismissal of an information charging a violation of section 796.07 of the Florida Statutes even though no one was present at the time of the alleged act other than the defendant an…

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