STATE OF FLORIDA, APPELLANT,
v.
EARL L. PENLEY, APPELLEE
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The court held that the St. Petersburg City Ordinance 22.57 is unconstitutional due to vagueness and potential for arbitrary enforcement.
[1] A city ordinance prohibiting sleeping in any public place is unconstitutional for vagueness, failing to provide fair notice of forbidden conduct.
[2] Ordinances that punish unoffending behavior, drawing no distinction between harmful and innocent conduct, are unconstitutional.
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Join FLexlaw to unlock all legal intelligenceA police officer arrested the appellee for sleeping in a public place under a city ordinance. A firearm was found on the appellee after the arrest. Th…
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On September 6, 1972, at approximately 4:15 A.M., a St. Petersburg police officer, while patrolling, saw appellee, Earl L. Pen-ley, sitting on a bench at a city bus stop located in the vicinity of Central Avenue and 9th Street in the City of St. Peters-burg. The officer approached appellee, spoke to him, shook his leg, and, finding him asleep, arrested him for sleeping in a public place in violation of St. Petersburg City Ordinance 22.57. This Ordinance provides as follows:
“No person shall sleep upon or in any street, park, wharf or other public place. (Code 1955, ch. 25, § 47.)”
*181Subsequent to his arrest, appellee was placed in a police cruiser and a small caliber pistol was found in his possession.
On October 6, 1972, the state filed an information charging appellee with carrying a concealed firearm in violation of Section 790.01(2), Florida Statutes, F.S.A. On October 9, 1972, appellee filed a motion to suppress all evidence seized as a result of an unlawful arrest, search and seizure. The trial court, on October 17, 1972, after hearing, granted appellee’s motion to suppress on the basis that any enforcement under the ordinance would have to be . . arbitrary and capricious.” The state, thereafter, filed a timely appeal (Rule 6.3, subd. a, FAR, 32 F.S.A.).
We have considered the briefs and authorities cited and conclude that the trial court correctly held St. Petersburg City Ordinance 22.57 to be unconstitutional. This court is the proper forum to review the constitutionality of a city ordinance. Armstrong v. City of Tampa, Fla.1958, 106 So.2d 407.
We find that there is marked similarity between this ordinance and most vagrancy legislation in that both provide for punishment of unoffending behavior. This court, therefore, adopts the reasoning in Lazarus v. Faircloth, S.D.Fla.1969, 301 F.Supp. 266, in holding that the ordinance here under scrutiny draws no distinction between conduct that is calculated to harm and that which is essentially innocent. See, also, Smith v. Florida, 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122. We further hold that the ordinance is void due to its vagueness in that it “. . . fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. . . . ” United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989. Further, the ordinance, as written, may result in arbitrary and erratic arrest and convictions. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066. It thus follows that appellee’s arrest was unlawful. Therefore, the trial judge was correct in granting appellee’s motion to suppress. See Russo v. State, Fla.App.1972, 270 So.2d 428. We, therefore,
Affirm.
MANN, C. J., and LILES, J., concur.
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City OF Pompano Beach v. Capalbo, 455 So. 2d 468 (Fla. 4th DCA 1984)…ond guesses what a legislature really meant to say; the legislated language speaks for itself. There is great similarity between the City of Pompano Beach sleep-in-a-vehicle ordinance and the St. Petersburg ordinance struck down in State v. Penley, 276 So. 2d 180 (Fla. 2d DCA), cert. denied, 281 So. 2d 504 (Fla.1973). The St. Petersburg ordinance provided that “[N]o person shall sleep upon or in any street, park, wharf or other public place.” Id. at 180. The Pen-ley court likened the St. Petersburg ordinance…1 / 2
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City OF Coral Gables v. Wood, 305 So. 2d 261 (Fla. 3d DCA 1974)…the respondent states the general rule that validity of an ordinance as to vagueness is measured by whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden thereunder. State v. Penley, Fla.App.1973, 276 So. 2d 180, citing United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989. Although there could be some doubt as to whether or not certain vehicles are covered by the ordinance, for instance station wagons or vans with pull-down seats, there is no…
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Ciccarelli v. The City OF KEY W., 321 So. 2d 472 (Fla. 3d DCA 1975)…. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, or (2) if the law is so overbroad that it makes common conduct criminal and provides the police with unfettered discretion to arrest. Headley v. Selkowitz, Fla.1965, 171 So. 2d 368; State v. Penley, Fla.App.1973, 276 So. 2d 180, 181; Lanzetta v. New Jersey, 1939, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L. Ed. 888. Key West Ordinance 21-41 specifically prohibits loitering if it “impedes or tends to impede” passage. Ciccarelli submits that the limiting words themselves are so v…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thornhill v. Alabama, 310 U.S. 88 (U.S. 1940)
- United States v. Harriss, 347 U.S. 612 (U.S. 1954)
- Papachristou v. City of Jacksonville, 405 U.S. 156 (U.S. 1972)
- Herndon v. Lowry, 301 U.S. 242 (U.S. 1937)
- Armstrong v. City OF Tampa, 106 So. 2d 407 (Fla. 1958)
- Smith v. Florida, 405 U.S. 172 (U.S. 1972)
- Russo v. State, 270 So. 2d 428 (Fla. 4th DCA 1972)