595 So. 2d 981

STATE of Florida, Appellant, v. E.L., a Child, and R.W., a Child, Appellees.

Nos. 90-794, 90-1542.

District Court of Appeal of Florida, Fifth District.

Feb. 28, 1992.

*982Robert A. Butterworth, Atty. Gen., Tallahassee, David S. Morgan, Asst. Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Day-tona Beach, for áppellant.

James B. Gibson, Public Defender, Day-tona Beach and Paolo G. Annino, Asst. Public Defender, for appellees.

G0SH0RN, Chief Judge.

The issue presented on appeal is whether the City of Sanford’s Ordinance No. 2032, which prohibits loitering for the purpose of engaging in drug related activity, is constitutional.1

*983R.W. and E.L., both minors, were arrested and charged pursuant to the ordinance. They moved to dismiss the charges on the ground that the ordinance is facially unconstitutional. The trial court found that Sanford’s ordinance violated the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Additionally, the trial court relied on Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), and found that the ordinance was unconstitutionally vague and therefore facially void. As a result, the trial court granted the motions to dismiss.2 We reverse.

In Kolender, the United States Supreme Court held that a California statute, which required persons who loiter or wander on the streets to provide “credible and reliable” identification and to account for their presence when requested by a police officer, was unconstitutionally vague because the statute failed to clarify what was required to provide “credible and reliable” identification. Id. at 358,103 S.Ct. at 1858. The Court explained as follows:

As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Hoffman Estates v. Flipside, Hoffman Estates, Inc. [455 U.S. 489,102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)], supra; Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Connolly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574, 94 S.Ct., at 1247-1248. Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecu*984tors, and juries to pursue their personal predilections.” [Citation omitted].

Id. at 357-58, 103 S.Ct. at 1858.

We begin our analysis with a consideration of Florida’s loitering and prowling statute, section 856.021, Florida Statutes (1991), which provides in pertinent part:

It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

The Florida Supreme Court considered section 856.021 in State v. Eker, 311 So.2d 104, 109 (Fla.), cert. denied sub nom. Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975) and upheld the statute’s constitutionality by rejecting arguments based on vagueness and overbreadth. The court recognized that:

[I]f the statute broadly proscribed loitering or idling, without more, as in the manner of our previous statute, it would be unconstitutional. On the other hand, it is recognized that if a statute proscribes loitering that threatens public safety or a breach of the peace, it can withstand constitutional attack. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Comarco v. City of Orange, 61 N.J. 463, 295 A.2d 353 (1972); People v. Solomon, 33 Cal.App.3d 429, 108 Cal.Rptr. 867, cert. den. 415 U.S. 951, 94 S.Ct. 1476, 39 L.Ed.2d 567 (1974); People of Detroit v. Ritchey, 25 Mich.App. 98, 181 N.W.2d 87 (1970).

Id. at 107-08. The court emphasized that the statute required that the loitering must occur under “circumstances where peace and order are threatened or where the safety of persons or property is jeopardized.” Id. at 109. The court then held as follows:

In justifying an arrest for this offense, we adopt the words of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868,1880, 20 L.Ed.2d 889, 906 (1968): “... the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” a finding that a breach of the peace is imminent or the public safety is threatened.

Id. After the United States Supreme Court issued its opinion in Kolender, the Florida Supreme Court reconsidered section 856.021 and again upheld the statute’s constitutionality. Watts v. State, 463 So.2d 205, 207 (Fla.1985).

In the instant case, the ordinance specifically recognizes that increasing drug trafficking and usage causes an immediate and imminent danger to the public health and safety and to property in the area and that this danger is significantly increased by the presence of numerous persons loitering for the specific purpose of committing an illegal act, i.e., drug trafficking and usage. Consequently, the ordinance requires more than mere loitering. The ordinance requires an intent to commit a criminal act, i.e., intent to engage in drug-related activity. As previously noted, the Florida Supreme Court held that the less specific loitering and prowling statute is constitutional. Eker, 311 So.2d at 109. Therefore, we have no difficulty finding that the more specific Sanford ordinance, which prohibits loitering for the purpose of engaging in drug-related activity, is facially constitutional.

The trial court was troubled by the section of the ordinance listing circumstances which may be considered as manifesting an intent to engage in drug-related activity. We merely observe that the list is not mandatory or even all inclusive, but rather, the list is only suggestive. See City of Akron v. Holley, 53 Ohio Misc.2d 4, 557 N.E.2d 861, 864 (Akron Mun.Ct.1989) (holding that “[a] prosecution under [the ordinance] may suggest the use of any one, all or none of the ‘circumstances’ under [the ordinance] and the question of the constitutionality of any separate subpara-graph must await its application in a particular case”); see also Wyche v. State, 573 So.2d 953 (Fla. 2d DCA 1991) (upholding the facial constitutionality of an ordinance, *985which prohibited loitering for the purpose of prostitution and which itemized circumstances for consideration in applying the ordinance). But see Johnson v. Carson, 569 F.Supp. 974 (M.D.Fla.1983). We find the list of circumstances which may be considered, is superfluous. Regardless of the list, the arresting officer must be able to articulate specific facts which, “ ‘taken together with rational inferences from those facts, reasonably warrant’ a finding that a breach of the peace is imminent or the public safety is threatened.” Ecker, 311 So.2d at 109 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968). As in Ecker, this requirement also applies to the ordinance in the instant case, and therefore, the ordinance does not violate the due process protections provided in the Fifth and Fourteenth Amendments or the prohibition against unreasonable searches and seizures provided in the Fourth Amendment. Accordingly, we reverse the trial court’s findings to the contrary and remand the cause for further proceedings.

The question of the ordinance’s constitutionality as applied to a specific factual context is not before us and must await another day.

REVERSED and REMANDED.

DAUKSCH and W. SHARP, JJ., concur.

State v. E.L.
595 So. 2d 981

Case Details

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State v. E.L.
Decision Date
Feb 28, 1992
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595 So. 2d 981

Jurisdiction
Florida

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