CopyCited 6 times | Published | District Court, M.D. Florida | 2003 U.S. Dist. LEXIS 670, 2003 WL 147531
...s policies. In response to the demonstration, the Osceola County Sheriffs Deputies arrested three of the protesters, Phillip Benham ("Mr. Benham"), Matthew Bowman ("Mr. Bowman") and Seth Spangle ("Mr. Spangle"). They were each charged with violating section
316.2045(2), Florida Statutes, for obstruction of traffic without a permit and section
316.2055 for throwing advertising material into vehicles. Cheryl Bischoff ("Ms. Bischoff) and Vicky Stites ("Ms. Stites") were among the activists protesting against Walt Disney. On May 18, 1998 both Ms. Bischoff and Ms. Stites filed the instant action alleging that sections
316.2045 and
316.2055 were unconstitutional, both on their face and as applied to Plaintiffs....
...Since the parties offered evidence outside the pleadings, on August 2, 2002 the Magistrate Judge converted the motions to dismiss to motions for summary judgment. An evidentiary hearing was held on August 27, 2002 on the issue of standing as well as on the facial challenges to sections
316.2045 and
316.2055....
...A Report and Recommendation was filed by Magistrate Judge Glazebrook on September 19, 2002 recommending denial of defendant's motions to dismiss and further recommending that Plaintiffs be found to have standing to pursue their First Amendment challenges to sections
316.2045 and
316.2055....
...The Defendants' Objection to the Report and Recommendation does not refer to any other factual evidence or case law that would bolster Defendant's position. As a result, this Court agrees with the Magistrate Judge's conclusion that all the Plaintiffs have standing to contest the constitutionality of sections
316.2045 and
316.2055....
...In sum, the reconsideration of the facial challenge was appropriate and not a violation of the law of the case doctrine because the Eleventh Circuit decision did not require that Judge Sharp's ruling remain undisturbed. F. The contested Florida statutes are unconstitutional. 1. Section 316.2045 is unconstitutional because it is content-based and vague. All the Defendants object to the Magistrate Judge's recommendation that section 316.2045 be declared unconstitutional. [4] The Magistrate Judge's recommendation is premised on the legal theory that section 316.2045 is content-based and vague....
...e Sharp's previous decision finding the contested Florida statute constitutional. The Defendants do not engage in any further analysis or cite to any other legal authority to support their position. In light of the impermissible distinctions made in section 316.2045, Florida Statutes, the Court finds the statute unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and the First Amendment of the United States Constitution. The Magistrate Judge also found section 316.2045 void for vagueness....
..."Section one is ambiguous as to whether it is unlawful for an individual to willfully obstruct the free use of the road `by standing,' or whether she must do so by standing on the road. The undefined terms `solicit' and `political campaigning' contribute to the indefiniteness of §
316.2045, as does section two's reference to and partial incorporation of the opaque and undecipherable permit provisions of another criminal statute, §
337.406." (Doc. 100 at 32). The language of section
316.2045 simply does not convey sufficiently definite warning as to the unlawful conduct when measured by common understanding. In the Defendants' Objections to the facial challenge they do not address the ambiguity of the statute. Therefore, this Court shall adopt the Magistrate Judge's recommendation that section
316.2045, Florida Statutes, is void for vagueness. 2. Section
316.2045 is not narrowly tailored to meet compelling state interest, but rather it is overbroad....
...518, 521,
92 S.Ct. 1103,
31 L.Ed.2d 408 (1972). The purpose behind the contested statutes is to ensure public safety on roads, which is a compelling government interest. However, the statute is not narrowly tailored to meet that compelling interest. "Nothing in the §
316.2045's content based charitynon-charity distinction or political nonpolitical distinction has any bearing whatsoever on road safety or uniformity." (Doc....
...inst their constitutionality." Id. at 1237. In order for a regulation that places a restraint on speech to pass constitutional muster it must contain procedural safeguards to avoid censorship. In this instance, [t]he permitting scheme established by § 316.2045 lacks the procedural safeguards necessary to ensure against undue suppression of protected speech....
...Although the Defendants argue that individuals could potentially apply for a permit, they do not point to anything in the record that convinces this Court that there are procedural safeguards in place to prevent the undue suppression of speech. Therefore, the Court adopts the recommendation that section 316.2045 is overbroad and not narrowly tailored to meet the government's compelling interest....
...79, filed January 9, 2002) is DENIED. 3. Defendant Butterworth's Motion to Dismiss (Doc. 81, filed January 29, 2002) is DENIED. 4. It is further Ordered that the Court finds that Plaintiffs have standing to pursue their constitutional challenges to sections
316.2045 and
316.2055, Florida Statutes. 5. It is further Ordered that sections
316.2045 and
316.2055, Florida Statutes are found facially unconstitutional and invalid....
...The group had gathered at the intersection to protest Walt Disney World's purported support of homosexuality. The Osceola County Sheriffs Deputies arrested three of the protesters, Phillip Benham ("Benham"), Matthew Bowman ("Bowman") and Spangle. The Sheriffs Office charged them with violating Fla. Stat. §§
316.2045(2) (obstruction of traffic to solicit without a permit) and
316.2055 (throwing advertising material into vehicles)....
...Plaintiffs Bischoff and Stites were among the remaining protesters. Bischoff and Stites say that they were threatened with arrest under the same statutes, but that they disbanded in order to avoid arrest. Bischoff and Stites filed this case on May 18, 1998, asking this Court to declare that Fla. Stat. §§
316.2045 and
316.2055 were unconstitutional, both on their face and as applied to plaintiffs....
...12(b), and established a schedule for hearing and resolving *1240 all pending motions. Docket No. 87. The Court held an evidentiary hearing on the standing issue on August 27, 2002, and also entertained extensive oral argument on the facial challenges to Fla. Stat. §§ 316.2045 and Fla....
...r preaching on the corner of a busy intersection, streets were a traditional public forum). b. Content-Neutral versus Content-Based Courts apply different levels of scrutiny to contested statutes. At issue in the instant case is whether Fla. Stat. §§
316.2045 and
316.2055 impose only content-neutral restrictions, or whether the restrictions are content-based....
...although they expressed a desire to protest again at that location. 2. Standing Analysis All parties concede that Spangle, who was arrested, has standing. Bischoff and Stites claim to have been threatened with arrest for a violation of Fla. Stat. §§
316.2045 and
316.2055, and the Court addresses their claims collectively....
...iterature (Bischoff) or persons who aided and abetted them (Stites) were not subject to arrestrings hollow. Second, it is insignificant that Bischoff and Stites may have been threatened with arrest for violating different sub-parts of Fla. Stat. §§
316.2045 and
316.2055 than those for which Spangle, Benham and Bowman were arrested....
...Bischoff,
222 F.3d at 885. c. Findings as to Likelihood of Redress Finally, the relief Bischoff and Stites seek, a facial invalidation of the Florida *1250 statutes at issue, would redress their injury if granted. Bischoff,
222 F.3d at 885. If Fla. Stat. §§
316.2045 and
316.2055 are declared invalid, then Bischoff and Stites could return to the same site in Osceola County to protest without fear of arrest for violating these statutes....
...For the above reasons, Bischoff, Stites and Spangle have standing to contest the constitutionality of these Florida statutes. B. FACIAL CHALLENGES UNDER THE CONSTITUTION 1. Reconsideration of Facial Challenges The district court first must decide whether to re-examine Fla. Stat. §§ 316.2045 and 2055 on remand in light of the pre-appeal disposition of The Honorable G....
...is free to re-evaluate its earlier rulings in order to achieve a legally correct result, particularly when the Court of Appeals has provided new enlightenment. Accordingly, the Court proceeds to consider Plaintiffs' facial challenges to Fla. Stat. §§
316.2045 and
316.2055. 2. Facial Analysis of Fla. Stat. §
316.2045 Plaintiffs contest the facial validity of Fla. Stat. §
316.2045, a law prohibiting the willful obstruction of public streets, highways and roads. Plaintiffs raise three grounds. First, Plaintiffs contend that Fla. Stat. §
316.2045 is an invalid contentbased statute that impermissibly regulates the type of speech allowed in a public forum. Second, Plaintiffs argue that Fla. Stat. §
316.2045 is void for vagueness because it criminalizes conduct that falls within undefined terms, and because it establishes a licensing system that lacks the requisite procedural safeguards. Third, Plaintiffs allege that Fla. Stat. §
316.2045 is overly broad in that it applies to a wide range of protected First Amendment conduct. Any facial analysis must begin with a very close analysis of the language chosen by the legislature in order to determine the statute's exact reach or scope. See Frisby,
487 U.S. at 482,
108 S.Ct. 2495. Section
316.2045 (captioned "Obstruction of public streets, highways and roads") states, in pertinent part: (1) It is unlawful for any person or persons willfully to obstruct the free, convenient and normal use of any public street, highway or road b...
...(3) Permits for the use of any street, road or right-of-way not maintained by the state may be issued by the appropriate local government. (4) Nothing in this section shall be construed to inhibit political campaigning on the public right-of-way or to require a permit for such activity. Fla. Stat. § 316.2045. Section one of § 316.2045 makes it unlawful wilfully to obstruct the normal use of any road "by impeding, hindering, stifling, retarding, or restraining traffic or passage" on the road....
...is unlawful for an individual to wilfully obstruct the free use of a road simply "by standing," or whether she must do so "by standing ... thereon," i.e., on the road. It is clear, however, from the language of section one that a person may violate § 316.2045(1) by standing without approaching a motor vehicle....
...[10] Section one makes no exceptions for political campaigning, for charitable work, or for permitted conduct. *1252 A person violating section one commits a non-criminal pedestrian violation or infraction punishable by a fifteen dollar fine. Fla. Stat. §
316.2045(1); Fla. Stat. §
316.655(1); Fla. Stat. §
318.13(3); Fla. Stat. §
318.18(1)(a); Fla. Stat. §
775.082(5). [11] Section two of §
316.2045 similarly makes it unlawful for any person wilfully to obstruct the normal use of a road by any means specified in section one "in order to solicit." The term "solicit" is not defined. Any person who violates section two, however, is guilty of a crimea second degree misdemeanor punishable by "a definite term of imprisonment not exceeding 60 days," a $500 fine, or both. Fla. Stat. §
316.2045(2); Fla....
...ghter collecting money in a boot for the families of firefighters killed on September 11 is subject to arrest and up to two months imprisonment, as is the ninth grader hoping to entice cars into a charity car wash. Unlike section one, section two of § 316.2045 lists three exceptions that decriminalize specific activities: 1.) the Internal Revenue Code § 501(c)(3) exception; 2.) the exception for political campaigning; and 3.) the exception for permitted conduct....
...First, registered organizations qualified under Internal Revenue Code, 26 U.S.C. § 501(c)(3) (list of types of tax exempt organizations)or "any persons or organizations acting on their behalf" are exempted from section two for activities on roads not maintained by the state. Fla. Stat. § 316.2045(2) (emphasis supplied)....
...he effect on trafficbut persons protesting on behalf of Disney (which is not likely a § 501(c)(3) corporation) would risk incarceration if they responded from the other side of the same Osceola County road. [12] Second, section four of Fla. Stat. § 316.2045 states that "[n]othing in this *1253 section shall be construed to inhibit political campaigning on the public right-of-way or to require a permit for such activity." The term "political campaigning" is not defined....
...erhaps "Choose Mickey." Yet the criminality of a defendant's conduct and the possibility that she may spend up to two months in jail depends on whether she has retarded traffic while "political campaigning." [14] Under all parties' interpretation of § 316.2045, a ninth grader risks a term in the Osceola County Jail if her charity car wash sign slightly retards traffic, but a Nazi party candidate for governor may back up traffic for miles with impunity. Section 316.2045 specifies a third exception available to law-abiding citizens who do not wish to violate Florida lawobtain a permit. Sections two, three, and four of § 316.2045 decriminalize the wilful retarding of traffic where the solicitor has obtained a permit....
...tion or a lawful permit." Section two is unclear as to whether the words "proper authorization or" are mere surplusage, or whether one can obtain "proper authorization" without obtaining a "lawful permit." [15] In any event, there is no violation of § 316.2045(2) (a second degree misdemeanor) [16] if one obtains a permit....
...ct is in fact "soliciting," or whether her intended conduct falls within the safe harbor of the § 501(c)(3) exception or the "political campaigning" exception. But the permit exception is far more complicated than it appears upon first examination. Section 316.2045(3) establishes a permitting rule for roads not maintained by the state....
...ion two, however, establishes a different permitting rule for state-maintained roads. Permits for the *1254 use of a state-maintained road or right-ofway "shall be required only for those purposes and in the manner set out in §
337.406." Fla. Stat. §
316.2045(2) (emphasis supplied). The language of §
316.2045(2) requires a permit for the use of state roads only for certain specified purposesno permit is otherwise required....
...any goods or property; solicitation for charitable purposes; and the display of advertising of any sort. Fla. Stat. §
337.406(1). Although no party in this action seeks a declaration that Fla. Stat. §
337.406 is un-constitutional, our analysis of §
316.2045 is aided by identifying the conduct that §
337.406 criminalizes....
...Again, the firefighter collecting money in a boot and the ninth grader hoping to entice cars into a car wash are each subject to arrest and a jail term of up to two months if they interfere with the safe and efficient movement of cars. Indeed, §
337.406 not only omits the § 501(c)(3) exemption found in §
316.2045(2), but expressly criminalizes "solicitation for charitable purposes." Furthermore, §
337.406 not only omits the "political campaigning" exemption found in §
316.2045(4), but expressly criminalizes "the display of advertising of any sort." Florida legislators and state judges advertising for re-election or retention along the roadway may join the firefighters and ninth graders in jail....
...not only to someone seeking a permit for soliciting in a municipality, but also to someone who simply wants to avoid using a state road for a purpose specified in Fla. Stat. §
337.406 i.e., a person who has no permit but wants to avoid violating §
316.2045(2). The statute provides no answer. This level of detail in the analysis is necessary because the Florida Legislature chose to make the criminality of a person's conduct under §
316.2045(2) dependent on the "purposes" set forth in §
337.406. On its face, §
316.2045(2)-(3) seems to decriminalize conduct by a permit holder, but the permit exemptions are illusory....
...Although forewarned that the Court would inquire about permitting at oral argument, Docket No. 88 at 2, neither Sheriff Aycock nor the Attorney General of the State of Florida could point to a description in the record (or otherwise describe) how one might obtain the permits referred to in Fla. Stat. §
316.2045(2)-(3) (permits for state-maintained and non-state-maintained roads, or other "proper authorization") and §
337.406(1)-(2) (permits for use of state transportation facilities by the appropriate local governmental entity, both outside and...
...If *1256 no local permitting procedure existed in a particular county or municipality, then there would be no permitting available at the state level. Sheriff Aycock read into the record a letter stating that Osceola County had no procedure for permitting. [20] Docket No. 98 at 191. 3. Fla. Stat. §
316.2045 Is Content-Based and Vague On its face, §
316.2045 regulates speech on the basis of the ideas expressed even though §
316.2045 says nothing about prohomosexual or anti-homosexual speech, and nothing about pro-Disney or anti-Disney speech. Rather, section
316.2045 selectively proscribes protected First Amendment activity i.e., it impermissibly prefers speech by § 501(c)(3) charities and by persons who are engaged in "political campaigning" over all other activity that retards traffic, without any showing that the latter is more disruptive than the former. See Carey,
447 U.S. at 459-60, 465,
100 S.Ct. 2286; Mosley,
408 U.S. at 100,
92 S.Ct. 2286. Section
316.2045 makes the legality of conduct that retards traffic depend solely on the nature of the message being conveyed....
...Said differently, the Florida statute facially prefers the viewpoints expressed by registered charities and political campaigners by allowing ubiquitous and free dissemination of their views, but restricts discussion of all other issues and subjects. Section 316.2045 of the Florida Statutes, therefore, is presumptively invalid under the Equal Protection Clause and the First Amendment of the United States Constitution because it imposes content-based restrictions on speech in a traditional public forum. Furthermore, § 316.2045 does not sufficiently define the conduct that it proscribes when measured by common understanding and practices....
...Section one is ambiguous as to whether it is unlawful for an individual to wilfully obstruct the free use of a road simply "by standing," or whether she must do so by standing on the road. The undefined terms "solicit" and "political campaigning" contribute to the indefiniteness of §
316.2045, as does section two's reference to and partial incorporation of the opaque and undecipherable permit provisions of another criminal statute, §
337.406....
...It is equally problematic that section two creates a different permit scheme from the permit scheme in section three, and that the permit scheme in section two actually seems to criminalize additional conduct that would otherwise be exempted under section two, i.e., § 501(c)(3) solicitation and political campaigning. Section
316.2045 therefore is void for vagueness. 4. Section
316.2045 Is Not Narrowly Tailored to Meet a Compelling State Interest, But Rather Is Overbroad Because Fla. Stat. §
316.2045 is content-based, it is only valid if narrowly tailored to meet a compelling state interest. Perry,
460 U.S. at 45,
103 S.Ct. 948. Depermit *1257 termining whether a statute is narrowly tailored is similar, if not identical, to determining overbreadth. Defendants assert that Fla. Stat. §
316.2045 is designed to protect the safety of both motorists and pedestrians. Section
316.2045 supports defendants' assertion. Section
316.2045(2) refers to and adopts the licensing provisions in Fla....
...affic, rapid lane changing and other dangerous traffic movement, increased vehicular accidents, and motorist injuries and fatalities. Fla. Stat. §
337.406(1). The Florida legislature has also stated its interest in uniformity from county to county. Section
316.2045 is part of the Florida Uniform Traffic Control Law....
...§
316.007 (the "provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein..."). The Florida legislature's intent in decriminalizing the pedestrian violations in Fla. Stat. §§
316.2045(1) and
316.2055 is "facilitating the implementation of a more uniform and expeditious system for the disposition of traffic infractions." Fla....
...derly movement of crowds at a state fairground). The Court assumes without deciding that Florida's desire to protect public safety on the roads is also a "compelling" government interest. Therefore, the Court proceeds to determine whether Fla. Stat. § 316.2045 is narrowly tailored to meet Florida's stated objectives. It is not. Nothing in the § 316.2045's contentbased charity-noncharity distinction or political-nonpolitical distinction has any bearing whatsoever on road safety or uniformity....
...
62 F.Supp.2d at 711, citing Boos v. Barry,
485 U.S. 312, 326-27,
108 S.Ct. 1157,
99 L.Ed.2d 333 (1988) (finding the law at issue not narrowly tailored because *1258 "a less restrictive alternative was readily available."). The language of Fla. Stat. §
316.2045 does nothing to promote Florida's interest in uniform traffic laws and dispositions....
...The undefined terms "solicit" and "political campaigning," which transform handbilling from a civil pedestrian infraction into a crime, will also encourage varying on-the-spot interpretations by the arresting deputies, not uniformity. [21] Therefore, Fla. Stat. § 316.2045 is an invalid content-based statute. Section 316.2045 sweeps unnecessarily broadly, and invades the area of protected freedoms. There is a realistic danger that section 316.2045 will significantly compromise recognized First Amendment protections of parties not before the Court. Section 316.2045, therefore, is content-based and substantially overbroad. Persons whose expression is constitutionally protectedwhether firemen, ninth-graders, politicians, or judgesmay well refrain from exercising their rights for fear of arrest and incarceration. Section 316.2045 also imposes a prior restraint on speech by restricting speech without a permit. A prior restraint exists because the governments of Florida and of each county can deny access to a forum for expression, the borders of Florida's roads, before the expression occurs. The permitting scheme established by § 316.2045 lacks the procedural safeguards necessary to ensure against undue suppression of protected speech....
...It is FURTHER RECOMMENDED that Defendant Butterworth's Motion to Dismiss against Plaintiffs [Doc. 81, filed January 29, 2002] be DENIED. It is FURTHER RECOMMENDED that Plaintiffs be found to have standing to pursue their constitutional challenges to Fla. Stat. §§
316.2045 and
316.2055. It is FURTHER RECOMMENDED that Fla. Stat §§
316.2045 and
316.2055 be found facially unconstitutional, and declared invalid....
...[3] The "Defendant Sheriff in [his] Objection does not object to Magistrate Judge Glazebrook's ruling that the Plaintiffs have standing to bring their claims." (Doc. 102 at 8). All Defendants, however, concede that Mr. Spangle has standing to bring suit. [4] Section 316.2045 states: (1) It is unlawful for any person or persons willfully to obstruct the free, convenient and normal use of any public street, highway or road by impeding, hindering, stifling, retarding, or restraining traffic or passage there...
...[9] The "injury-in-fact" analysis is solely for the purposes of addressing standing to challenge the constitutionality of the Florida statutes allegedly affecting Plaintiffs' First Amendment rights. The Court makes no finding critical of Sheriff Aycock or the Osceola County Sheriff's Office. [10] As written, Fla. Stat. § 316.2045 criminalizes all activity that retards traffic....
...Belsky,
799 F.2d 1485, 1489 (11th Cir.1986) ("soliciting funds is an inherently more intrusive and complicated activity than is distributing literature"). Nevertheless, the activity may well be considered "solicitation" for the purposes of Fla. Stat. §
316.2045(2)-(4)....
...[12] All protesters nevertheless may be subject to non-criminal pedestrian violations under section one, which contains no § 501(c)(3) exemption. Persons who are engaged in "political campaigning," however, are exempt from both pedestrian and criminal violations under sections one and two. See Fla. Stat. § 316.2045(4)....
...[20] Apparently some counties and some municipalities have permitting procedures, and others do not. A person's ability to obtain a for otherwise criminal conduct may vary from county to county, even along the same road. [21] Section one of Fla. Stat. § 316.2045 does not, standing alone, have the problems created by the preferences in § 316.2045(2)-(4) for § 501(c)(3) speech, for "political campaigning," and for licensed speech. Standing alone, Fla. Stat. § 316.2045(1) appears to be facially content-neutral....
...An unspecified local government entity "may" issue a limited and temporary permit for certain ambiguously specified uses if the entity determines that "the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public." Fla Stat. §§
316.2045(2) and
337.406(1).
