CopyCited 6 times | Published | District Court, M.D. Florida | 2003 U.S. Dist. LEXIS 670, 2003 WL 147531
...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....
...rt 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. 3. Section
316.2055 is not narrowly tailored to meet a significant state interest. [5] Although section
316.2055 is content neutral, it suppresses more speech *1238 than is necessary to serve the stated government purpose of ensuring public safety on roads....
...In addition, it is impermissibly vague in that it fails to define the terms "advertising or soliciting materials" and thus does not provide sufficient warning as to what conduct is proscribed by the law. The Defendants do not specifically address the Magistrate Judge's legal analysis with regard to the constitutionality of section 316.2055....
...They do not offer any legal precedent that reaches a contrary conclusion or any factual evidence that persuades the Court to disagree with the Magistrate Judge's recommendation. Therefore, the Court agrees with the Magistrate Judge with regard to the unconstitutionality of section 316.2055....
...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 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)....
...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. Stat. §
316.2055....
...he 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....
...xpressed 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....
...off) 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....
...aluate 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....
...§
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....
...From the face of the statute, it appears that the licensor has unlimited time within which to issue a license, so the risk of *1259 arbitrary suppression is as great as the provision of unbridled discretion. Frandsen,
212 F.3d at 1239. 5. Facial Analysis of Fla. Stat. §
316.2055 Plaintiffs contest the facial validity of Fla. Stat. §
316.2055 on three grounds. First, Plaintiffs contend Fla. Stat. §
316.2055 is an invalid time, place and manner restriction. Second, Plaintiffs argue Fla. Stat. §
316.2055 is void-for-vagueness because it criminalizes terms without defining them. Third, Plaintiffs allege that Fla. Stat. §
316.2055 is overly broad and applies to a wide range of protected First Amendment conduct. Once again, a facial analysis of §
316.2055 begins with a close analysis of the language chosen by the legislature to determine the statute's scope. Section
316.2055 (captioned "Motor vehicles, throwing advertising material in") states, in pertinent part: It is unlawful for any person on a public street, highway, or sidewalk in the state to throw into, or attempt to throw into, any motor vehicle,...
...offer, to any occupant of any motor vehicle, whether standing or moving, or to place or throw into any motor vehicle any advertising or soliciting materials or to cause or secure any person or persons to do any one of such unlawful acts. Fla. Stat. §
316.2055. A person violating §
316.2055 commits a non-criminal pedestrian violation or infraction punishable by a fifteen dollar fine. Fla. Stat. §
316.2055(1); Fla. Stat. §
316.655(1); Fla. Stat. §
318.13(3); Fla. Stat. §
318.18(1)(a); Fla. Stat. §
775.082(5). Although §
316.2055 makes unlawful the dangerous practice of throwing advertising into a motor vehicle, the statute has a far broader impact on protected speech....
...The term "standing" means "the halting of a vehicle, whether occupied or not, otherwise than temporarily, for the purpose of, and while actually engaged in, receiving or discharging passengers, as may be permitted by law ..." Fla. Stat. § 316.106(49). 6. Section 316.2055 Is Not Narrowly Tailored to Meet a Significant State Interest, But Rather Is Overbroad Both parties agree that the intersection of Irlo Bronson Memorial Highway and Old Vineland Road is a traditional public forum, and that Fla. Stat. § 316.2055 is a content-neutral statute. Therefore, in order to be valid, Fla. Stat. § 316.2055 must be narrowly tailored to serve a significant government interest, and provide alternative channels of communication....
...Grace,
461 U.S. at 177,
103 S.Ct. 1702. While the safety interest asserted by Defendants is certainly a significant government interest, and alternative channels of communication unquestionably exist, the statute is not narrowly tailored. Rather, Fla. Stat. §
316.2055 is a remarkably broad statute. Section
316.2055 makes it unlawful for a pedestrian on a sidewalk to hand an advertising leaflet to a willing recipient in a car that has stopped in a metered space or in a private driveway, even though such conduct has no effect on traffic or safety. The statute also makes it unlawful for someone on a roadside to hand "soliciting materials" to passengers in cars that have stopped at a light. Section
316.2055 requires no retarding *1260 of traffic, and contains no exceptions for § 501(c)(3) charities, for "political campaigning," or for permitted activity. Because §
316.2055 makes political campaigning unlawful even from the sidewalk, the Florida legislators and state judges who choose to advertise for re-election or retention along Florida's sidewalks and roadways may join the firefighters and ninth graders in line when paying their $15 fines (or in the back of an Osceola County Sheriffs Office prisoner van should they be arrested despite the "sign-and-pay" provisions of Fla. Stat. §
318.14). Section
316.2055 inhibits the speech of third parties not before the Court, and suppresses considerably more speech than is necessary to serve the stated government purpose of traffic safety and uniformity. It is therefore substantially overbroad, and not narrowly tailored to meet a significant state interest. Section
316.2055 is also impermissibly vague. Section
316.2055 makes it unlawful to hand into a car any "advertising or soliciting materials." "Advertising or soliciting materials" is undefined....
...p containing service station advertisements; a matchbook embossed with the name of a hotel or candidate; a resume; an invitation to join a church or synagogue; a theme park ticket and brochure; or a coupon for a free hamburger at a local restaurant. Section 316.2055 does not provide sufficiently definite warning as to the conduct that it proscribes when measured by common understanding and practices....
...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) 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. [5] Section 316.2055 states: It is unlawful for any person on a public street, highway, or sidewalk in the state to throw into, or attempt to throw into, any motor vehicle, or offer, or attempt to offer, to any occupant of any motor vehicle, whether stan...
