IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
THE STATE OF
Appeal No. CRC 03-21 APANO
Opinion filed ____________________.
Appeal from judgments and sentences
entered by the Pinellas County Court
Luke Lirot, Esq.
Attorney for appellant
Carl Brody, Jr., Esq.
Attorney for appellee
THIS MATTER is before the Court on the defendant’s appeal from three judgments and sentences entered against him by the Pinellas County Court. The defendant entered pleas of no contest to two charges of violating §6-2 of the Pinellas County Code, reserving his right to appeal the denial of his motions to dismiss. In addition, following a non-jury trial, he was found guilty of violating §42-139 of the Pinellas County Code. In that case he claims that his motion for judgment of acquittal should have been granted. All three cases were consolidated for purposes of appeal. After reviewing the briefs and record, this Court affirms the judgments and sentences.
The first issue raised by the defendant is that his motion for judgment of acquittal should have been granted because there was insufficient evidence presented to show that he violated the ordinance. The ordinance in question is §42-139, and it essentially makes it a violation for an operator of an adult use business to allow an employee to engage in prohibited acts. Among the prohibited acts are displaying or exposing any specified anatomical area at an adult use establishment, and displaying or exposing specified anatomical areas while simulating specified sexual activity. The deputy who helped conduct the raid on the Club Atlantis testified that he witnessed violations of the ordinance and that there were “various charges that night that were taking place at that moment. There were charges of simulated sexual activity, nudity in an alcohol establishment.”
Motions for judgment of acquittal should be denied “unless the evidence
is such that no view which the jury may lawfully take of it favorable to the
opposite party can be sustained under law.” Jones v. State, 790 So.2d
1194, 1197 (
The next issue raised by the defendant is that §6-2 of the Pinellas
County Code is unconstitutionally vague. This Court has ruled to the contrary.
See Lori Alvarez, et al. v. State, No. CRC 01-15771 CFANO (
The defendant argues that §42-139 is unconstitutional because it makes an operator of adult use business criminally responsible for the acts of others. In support of his claim, the defendant relies upon the case of Blue Moon Enterpises, Inc. v. Pinellas County, 97 F. Supp. 2d 1134 (M.D. Fla. 2000); wherein the court held that a possible sentence of imprisonment rendered the ordinances unconstitutional. As the state points out, however, §42-139 was amended to eliminate any potential prison sentence. Therefore, the Blue Moon case is not applicable.
Finally, the defendant’s argument, apparently raised for the first time in the reply brief, that the criminal division does not have jurisdiction over the case because imprisonment is not a potential sentence, is without merit. For example, the criminal division also hears traffic infraction cases, and imprisonment is not a potential sentence in those cases either.
IT IS THEREFORE ORDERED that the judgments and sentences are affirmed.
DONE AND ORDERED in Chambers at
James R. Case
Nancy Moate Ley
John A. Schaefer
cc: Judges Im and Andrews
Luke Lirot, Esq. and Carl Brody, Esq.