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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA, ORLANDO DIVISION

CHERYL BISCHOFF, et al.,

Plaintiffs,

-vs-

STATE OF FLORIDA, et al.,

Defendants.

Case No. 6:98-cv-583-Orl-28JGG

242 F. Supp. 2d 1226

January 2, 2003, Decided

January 3, 2003, Filed

 

ORDER[*1228]

 

This cause is before the Court on Defendant Sheriff Aycock's Motion to Dismiss against Plaintiffs Cheryl Bischoff, Vicky Stites and Seth Spangle (Doc. 79, filed January 9, 2002); [*1229] and Defendant Robert Butterworth's ("Mr. Butterworth") Motion to Dismiss against Plaintiffs. (Doc. 81, filed January 29, 2002). The United States Magistrate Judge has submitted a Report and Recommendation (Doc. 100, filed September 19, 2002) providing that both Defendant Aycock's and Defendant Butterworth's Motion to Dismiss against Plaintiff be denied.

 

After an independent review of the record in this matter, including the Objections filed by all Defendants (Doc. 102, filed October 3, 2002 and Doc. 103, filed October 7, 2002) and the response filed by Plaintiffs (Doc. 105 filed October 22, 2002), the Court agrees with the findings of fact and conclusions of law in the Report and Recommendation.

I. Procedural History

 

On December 29, 1997 religious activists gathered at the heavily trafficked intersection of Irlo Bronson Memorial Highway and Old Vineland Road in Osceola County, Florida for a demonstration. The activists were protesting Walt Disney's alleged support of homosexuality. The demonstrators carried signs and distributed handbills that articulated their criticism of Walt Disney's policies. In response to the demonstration, the Osceola County Sheriff's 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.

 

Initially, this case was assigned to the Honorable Judge G. Kendall Sharp who dismissed the entire case because the Plaintiffs could not establish that they suffered an actual or threatened injury and therefore did not have standing to bring an as-applied challenge to the statute. With regard to the facial challenges, Judge Sharp declared the contested Florida Statutes constitutional and denied all outstanding motions as moot. (Doc. 48). However, on appeal the Eleventh Circuit reversed and remanded Judge Sharp's decision, ordering this court "to either hold an evidentiary hearing on the issue of standing or consider the merits of Plaintiff's as applied challenge." Bischoff v. Osceola County, Fla., 222 F.3d 874, 876 (11th Cir. 2000). According to the Eleventh Circuit, "the court erred in making findings of disputed facts and judgments regarding credibility, on which it then based its standing conclusion, without holding an evidentiary hearing." Bischoff, 222 F.3d at 885. Upon remand from the court of appeals, the case was reassigned to the undersigned United States district judge.

 

On February 7, 2001 Robert Butterworth ("Mr. Butterworth"), the Attorney General of the State of Florida, intervened as a Defendant (Doc. 60) and in late August Osceola County was dismissed from the case pursuant to agreement of the parties. (Doc. 72). A second amended complaint was filed on December 20, 2001 which added Mr. Spangle as a Plaintiff and substituted Sheriff Aycock for Sheriff Croft as a Defendant. (Doc. 76). Defendants filed a motion to dismiss the second [*1230] amended complaint (Docs. 79 & 81) to which Plaintiffs responded in opposition. (Docs. 80 & 82). In addition, the Plaintiffs filed a motion to set their facial challenge for summary judgment briefing. (Doc. 82).

 

This court referred these motions to Magistrate Judge James G. Glazebrook for a Report and Recommendation. 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. At oral argument the parties conceded that Plaintiffs' as-applied challenges were not ripe for summary judgment and that no sovereign immunity or qualified immunity issues remained. (Doc. 98 at 283-89). 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. Most significantly, the Magistrate Judge recommended that the relevant statutes be found facially unconstitutional and declared invalid. The Defendants subsequently filed objections to the Report and Recommendation (Docs. 102 & 103) and the Plaintiffs filed a response (Doc. 105).

II. Defendants' Objections

 

A. The arrest of three protesters caused the termination of the demonstration.

 

The Defendants object to the Magistrate Judge's use of the word "disbanded" in the following sentence: "On December 29, 1997, the Osceola County Sheriff's Office disbanded an organized protest at the heavily-trafficked intersection of Irlo Bronson Memorial Highway and Old Vineland Road in unincorporated Osceola County, Florida." (Doc. 100 at 2) (emphasis added). According to the Defendants, the use of the word "disbanded" can be interpreted to mean that Sheriff's officers told or instructed protestors to leave the demonstration. The Defendants argue that there is no evidence in the record to suggest that any officer instructed a protestor to leave the area. Defendants however, do concede that the arrest of three of the protestors did result in the departure of other demonstrators. (Doc. 102 at 9).

 

The Court does not interpret the word "disbanded" in the Report and Recommendation to mean that the Sheriff's officers instructed the activists to leave the demonstration. However, the Court does interpret the Report and Recommendation to read that the December 29, 1997 demonstration was essentially disbanded by the arrest of three religious activists. Upon witnessing the arrest of three protesters the remaining activists feared the possibility of their own arrest and thus refrained from exercising their First Amendment right. The Magistrate Judge's Report and Recommendation does not in any way suggest that the Sheriff's officers instructed any demonstrators to leave. In fact, the Magistrate Judge explains that "Plaintiffs presented no evidence demonstrating that any Osceola County Deputy Sheriffs acted unprofessionally or in a manner inconsistent with their difficult responsibility of enforcing thousands of state and federal statutes." (Doc. 100 at 18 n.8) Moreover, the interpretation of the word "disbanded" has no significance in the legal analysis of this case. This Court finds the use of the [*1231] word "disbanded" in the Report and Recommendation to be proper and agrees with the Magistrate Judge's finding of fact.

 

B. The parties conceded at oral argument that no sovereign immunity or qualified immunity issues remained.

 

The State of Florida and Mr. Butterworth object to the Magistrate Judge's finding that Defendants conceded that there are no issues as to sovereign immunity or qualified immunity remaining in the case. n1 It is clear from the transcript of the hearing that all Parties agreed that no sovereign immunity or qualified immunity issues remained:

The Court: Does the State of Florida say that it could pass any statute no matter how strongly in violation of the U.S. Constitution and there could be no suit in federal court, but that the only federal review can occur after a full exhaustion of state remedies through the Florida Supreme Court and on the chance that the U.S. Supreme Court grants cert?

Ms. Becker n2: We understand that we have an obligation to defend the statute? . . . So I was using this primarily to narrow the scope so that everybody understands the State of Florida and Attorney General are only in this case to defend that statute, but that if this broadens out to anything beyond that, that we can't be sued beyond that.

The Court: So you don't contest that the State of Florida can be sued in federal court to determine the federal constitutionality of statutes in a declaratory judgment context?

Ms. Becker: To the best of my knowledge, yes, your Honor, that's, yes, the state can come in for those purposes.

The Court: And it doesn't impair that there are nominal damages sought.

Ms. Becker: Well, the nominal damages cannot be sought against the state is what I'm getting at. So in other words, we can defend the statute, but that's it.

(Doc. 98 at 286-87). The Court then proceeded to inquire about qualified immunity:

The Court: All right. So there's really no issue as to sovereign immunity. And as to qualified immunity in that it's a declaratory judgment action, Attorney General's position.

Ms. Becker: Your Honor, we didn't raise qualified immunity.

The Court: Did the Sheriff raise that?

Mr. Poulton: I don't think so.

The Court: I'm sorry. That's not an issue.

(Doc. 98 at 287). The parties clearly conceded at oral argument that there were no sovereign or qualified immunity issues to be settled during oral argument. Therefore, the Magistrate Judge's conclusion with regard to these issues in the Report and Recommendation is proper and adopted by this Court.

 

 

C. The Magistrate Judge properly converted the Defendants' Motions to Dismiss to Motions for Summary Judgment.

 

The State of Florida and Mr. Butterworth also object to the Magistrate Judge's conversion of their motion to dismiss to a motion for summary judgment. (Doc. 103 at 12). Typically a court converts a motion to dismiss to a motion for summary judgment when the moving parties ask the court to resolve issues and consider evidence that are beyond the complaint. Federal Rule of Civil Procedure 12(b) [*1232] gives a court discretion to treat a motion to dismiss for failure to state a claim as a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. However, upon conversion of a motion to dismiss to a motion for summary judgment "notice must be given to each party that the status of the action is now changed, and they must be given a 'reasonable opportunity' to present legal and factual material in support of or in opposition to the motion for summary judgment." U.S. v. Gottlieb, 424 F. Supp. 417, 418 (S.D. Fla. 1976) (quoting Sims v. Mercy Hosp., 451 F.2d 171 (6th Cir. 1971)). " It is well established in this circuit that the ten day notice requirement of FED. R. CIV. P. 56(c) is strictly enforced." Herron v. Beck, 693 F.2d 125 (11th Cir. 1982) (citations and footnote omitted). Federal Rule of Civil Procedure 56(c) reads "the motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing."

 

On August 2, 2002 the Magistrate Judge issued an Amended Order and Notice of Hearing which notified the parties of the court's conversion of Defendants' motions to dismiss to motions for summary judgment. (Doc. 87, filed August 2, 2002). The Magistrate Judge provided that "on or before August 22, 2002, either party (or the intervener) may also file additional affidavits and exhibits within the purview of FED. R. CIV. P. 56 as to matters that remain contested - as well as a Notice of Supplemental Authorities with explanatory parentheticals - in support of or in opposition to the motions." (Doc. 87 at 3). The Magistrate Judge further explained that "the Court will hear oral argument on the motions, as well as any necessary evidence not otherwise presented (to the extent required by law), on Tuesday, August 27, 2002 at 9:30 a.m." (Doc. 87 at 3-4).

 

The parties were notified twenty-five days prior to the evidentiary hearing of the court's conversion of the pending motions to dismiss to motions for summary judgment. This notice was well within the ten-day requirement and certainly provided the parties with a reasonable opportunity to present legal and factual material in support of or in opposition to the motions for summary judgment. The conversion of the motions in this instance was proper and complied with the notice requirement of Federal Rule of Civil Procedure 56(c).

 

D. The Plaintiffs have standing to bring their claims.

 

The State of Florida and Mr. Butterworth object to the Magistrate Judge's recommendation that Ms. Bischoff and Ms. Stites have standing to bring their claim. n3 The State of Florida and Mr. Butterworth argue that Ms. Bischoff and Ms. Stites do not have standing because they were not arrested during the demonstration and have not suffered an injury.

 

The Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992), articulated the necessary requirements a Plaintiff must show to establish standing:

First, the plaintiff must have suffered an injury in fact -- an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection [*1233] between the injury and the conduct complained of -- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision.

504 U.S. at 560-561 (internal marks and citations, and footnote omitted). The Court further explained that "the party invoking federal jurisdiction bears the burden of establishing these elements." Id. at 561 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990)).

 

Ms. Bischoff and Ms. Stites satisfy each of the constitutional requirements to establish standing. First, the fact that they were threatened with arrest for engaging in a demonstration is proof of a concrete injury to meet the "injury in fact" requirement. See Bischoff, 222 F.3d at 884 (explaining that the threat of arrest is wholly adequate to show injury in fact to establish standing). As noted by the Magistrate Judge, the threat of arrest was not limited to only those protesters engaged in particular activities. "First, the threat of arrest was not limited to those who stepped in the road - or at least no such limit was proved a the hearing. Sheriff Aycock himself argued in his brief that protestors who did not go into the street, but merely approached vehicles to solicit, nevertheless violated Florida law" and were thus subject to arrest. (Doc. 100 at 19-20). The threat of arrest in this instance was actual and concrete rather than merely conjectural or hypothetical. Ms. Bischoff and Ms. Stites refrained from exercising their First Amendment rights in order to avoid arrest. Thus, they suffered an injury in fact.

 

Second, Ms. Bischoff and Ms. Stites have established a causal link between the injury they suffered and Sheriff Aycock's enforcement of the contested statutes. "Both Bischoff and Stites were engaged in conduct violative of the same Florida laws for which Osceola County Sheriff's Deputies arrested Plaintiff Spangle." (Doc. 100 at 20).

 

Finally, it is more than likely, not merely speculative, that Plaintiffs' injury would be redressed by a facial invalidation of the contested statutes. Defendants' primary argument in their objection to the Report and Recommendation with regard to the issue of standing focuses on the fact that neither Ms. Bischoff or Ms. Stites stepped in the road during the demonstration and were not arrested. 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.

 

E. The Magistrate Judge properly reconsidered the Plaintiffs' facial challenge to the contested Florida statutes.

 

In the Defendants' Objections to the Magistrate's Report and Recommendation (Docs. 102 & 103), the Defendants essentially argue that in revisiting the facial challenges to the relevant Florida statutes the Magistrate Judge violated the law of the case doctrine that requires trial courts to strictly adhere to the mandates of appellate courts. See Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985) (explaining that a "trial court, upon receiving the mandate of an appellate court, may [*1234] not alter, amend, or examine the mandate, or give any further relief or review, but must enter an order in strict compliance with the mandate"). The law of the case "doctrine stands for the proposition that an appellate decision on an issue must be followed in all subsequent trial court proceedings unless the presentation of new evidence or an intervening change in the controlling law dictates a different result, or the appellate decision is clearly erroneous and, if implemented, would work a manifest injustice." Id. (citing Westbrook v. Zant, 743 F.2d 764, 768-69 (11th Cir. 1984)).

 

According to the Defendants, the disturbance of Judge Sharp's initial finding that the relevant Florida statutes were constitutional is against the Eleventh Circuit's August 14, 2000 mandate remanding the case "to the district court either to hold an evidentiary hearing on the question of standing or to rule on the merits of Plaintiffs' as applied challenge as raised in the parties' cross motion for summary judgment. We refrain from reviewing the district court's [*1235] ruling on the merits of Plaintiff's facial challenge at this time." Bischoff v. Osceola County, Fla., 222 F.3d 874, 886 (11th Cir. 2000) (emphasis added). The Defendants argue that the Eleventh Circuit reversed and remanded Judge Sharp's decision only for the District Court to reconsider standing or the Plaintiffs' as-applied challenge, not to reconsider Judge Sharp's conclusion with regard to the facial challenge. The hearing on the facial challenge along with the subsequent recommendation is, in the perspective of the Defendants, a violation of the Eleventh Circuit's instructions.

 

The policy behind the law of the case doctrine is to maintain a sense of efficiency, finality and obedience within the judiciary. See Litman v. Mass. Mutual Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (explaining that judicial dispute resolution must have elements of finality and stability), "'Judicial precedence serves as the foundation of our federal judicial system. Adherence to it results in stability and predictability.'" Id. at 1510 (citing Jaffree v. Wallace, 705 F.2d 1526, 1533 (11th Cir. 1983)). "It would be impossible for an appellate court 'to perform its duties satisfactorily and efficiently' and 'expeditiously if a question, once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal' thereof." Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir. 1974) (quoting White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967)). In other words, the law of the case doctrine is primarily concerned with the duty of lower courts to follow what has already been decided in a case. It does not, however, extend to issues the appellate court does not address. See Piambino, 757 F.2d at 1120 (explaining that the "law of the case doctrine applies to all issues decided expressly or by necessary implication; it does not extend to issues the appellate court did not address."); see also Terrell, 494 F.2d at 19 (explaining that the law of the case rule applies only to issues that were decided, and does not include determination of questions which might have been decided). Therefore, a lower court would not violate the law of the case doctrine in deciding an issue that an appellate court did not address in a previous decision.

 

The law of the case doctrine simply does not extend to the Plaintiffs' facial challenge to the statutes because the Eleventh Circuit did not decide the issue. The Eleventh Circuit clearly stated that "we refrain from reviewing the district court's ruling on the merits of the Plaintiff's facial challenge at this time." Bischoff, 222 F.3d at 886. In re-examining the facial challenge, the Magistrate Judge did not exceed his authority but merely reconsidered an issue the Eleventh Circuit did not address. Moreover, the Magistrate Judge issued an Order on August 15, 2002 providing the parties with specific issues that they had to address during oral argument in order to ensure that all parties were prepared to address the question of facial constitutionality. (Doc. 88). 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. n4 The Magistrate Judge's recommendation is premised on the legal theory that section 316.2045 is content-based and vague. According to the Magistrate Judge, "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." (Doc. 100 at 31).

 

The Supreme Court in Carey v. Brown, 447 U.S. 455, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980), similarly dealt with an Illinois statute that made distinctions between peaceful picketing and peaceful labor picketing. The contested Illinois statute prohibited picketing on public streets and sidewalks in residential neighborhoods, but made an exception for peaceful labor picketing. The Supreme Court in Carey explained:

The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. . . . [*1236] Any restriction on expressive activity because of its content would completely undercut the profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.

Id. at 462-63 (internal citations and footnote omitted). The Court further explains in Carey that "there is an equality of status in the field of ideas, and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say." Id. at 463 (internal citations and footnote omitted). The Court in Carey found the Illinois statute unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it made an impermissible subject matter distinction between lawful and unlawful picketing.

 

The Florida statute is similar to the Illinois statute at issue in Carey. The Florida statute suffers from the same constitutional infirmities. Facially the Florida statute prefers speech by 501 (c)(3) charities and those who are engaged in political speech. The Defendants in their objection to the Magistrate Judge's recommendation cite only to Judge 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. " The essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct. Jordan v. De George, 341 U.S. 223, 230, 95 L. Ed. 886, 71 S. Ct. 703 (1951) (quoting Williams v. United States, 341 U.S. 97, 95 L. Ed. 774, 71 S. Ct. 576 (1951)). "The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. 341 U.S. at 231-2.

 

Section one of the contested statute in this case contains several ambiguous terms which make it difficult for an individual to determine what type of conduct is unlawful. "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.

 

Generally, overbroad statutes have the potential to chill speech. Statutes or [*1237] regulations may not "sweep unnecessarily broadly and thereby invade the area of protected freedoms." NAACP v. Alabama, 357 U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958). Courts invalidate overly broad statutes because "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression," Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (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 charity - non-charity distinction or political nonpolitical distinction has any bearing whatsoever on road safety or uniformity." (Doc. 100 at 34). "Traffic accidents or backups caused by political campaigners or duly licensed charitable organizations are no less problematic than traffic accidents or backups caused by other political speakers or non-licensed charitable organizations." (Doc. 100 at 34). The Defendants argue in their objections that the statute is narrowly tailored and that it provides alternative channels for communication because individuals may apply for a permit in order to express their views. (Doc. 102 at 12). However, the Defendants do not address the Magistrate Judge's conclusion that the statute's permit scheme serves as a prior restraint on speech. "A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs." United States v. Frandsen, 212 F.3d 1231,1236-37 (2000). "Although prior restraints are not per se unconstitutional, there is a strong presumption against their constitutionality." 212 F.3d 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,

the permitting scheme established by 316.2045 lacks the procedural safeguards necessary to ensure against undue suppression of protected speech. Neither this court, nor any citizen wishing to engage in legal speech on a Florida road, can determine whether a particular permitting procedure applies to a given stretch of road; whether a particular agency or person has been designated to accept and grant or deny applications; whether any substantive constraints are placed on that person's discretion to deny a license; whether prompt judicial review is available for a denial; and whether there is any time constraint on the issuance or denial of a license.

(Doc. 100 at 36). 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.

 

3. Section 316.2055 is not narrowly tailored to meet a significant state interest. n5

 

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.

III. Conclusion

 

Therefore, it is ORDERED as follows:

1. The Report and Recommendation (Doc. 100, filed September 19, 2002) is ADOPTED AND CONFIRMED and made part of this Order.

2. Defendant Aycock's Motion to Dismiss (Doc. 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.

 

DONE and ORDERED in Chambers, Orlando, Florida this 2nd day of January, 2003.

 

JOHN ANTOON II

 

United States District Judge

 

FOOTNOTES:

n1 Defendant Sheriff Aycock states in his Objection that "the parties conceded at oral argument that Plaintiffs' as applied challenges were not ripe for summary judgment, and that no sovereign immunity or qualified immunity issues remained or existed." (Doc. 102 at 6).

 

n2 Ms. Becker is counsel for Defendants the State of Florida and Mr. Butterworth.

 

n3 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.

 

n4 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 thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon; and any person or persons who violate the provisions of this subsection, upon conviction, shall be cited for a pedestrian violation, punishable as provided in chapter 318.

 

(2) It is unlawful, without proper authorization or a lawful permit, for any person or persons willfully to obstruct the free, convenient, and normal use of any public street, highway, or road by any of the means specified in subsection (1) in order to solicit. Any person who violates the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in 775.082 or 775.083. Organizations qualified under 501 (c)(3) of the Internal Revenue Code and registered pursuant to chapter 496, or persons acting on their behalf are exempted from the provisions of this subsection by the state. Permits for the use of any portion of a state-maintained road or right-of-way shall be required only for those purposes and in the manner set out in 337.406.

(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.

 

n5 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 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.

 

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