County Criminal Court:  CRIMINAL LAW – Municipal Code Violations – Code provision prohibiting the parking of commercial vehicles in residential areas is not unconstitutionally vague – code uses words of common usage that gives a person of ordinary intelligence fair notice of what conduct is prohibited – undisputed facts of case provide competent substantial evidence to support trial court’s finding of guilt -- Order affirmed.  Spaulding v. State, No. 03-00066 APANO (Fla. 6th Cir. App. Ct. Sept. 9, 2004).

 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

HOWARD EDWARD SPAULDING,

                        Appellant,

vs.                                                                                            Appeal No. CRC 03-00066 APANO

                                                                                                UCN522003AP000066XXXXCR

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Judgment and Sentence

Judge Dorothy Vaccaro

 

Aubrey O. Dicus, Esquire

Attorney for Appellant

 

Ernest Mueller, Esquire

Attorney for Appellee

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Howard Edward Spaulding (Spaulding), from the Judgment and Sentence, entered August 23, 2003, in which the trial court found Spaulding guilty, without a jury, of the offense of having a commercial vehicle parked in a residential area in violation of the St. Petersburg City Code (Code).  The trial court ordered Spaulding to pay $300.00 [1] in fines to the City of St. Petersburg (City).  Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the judgment as set forth below.

            The record shows that Spaulding was charged with two municipal ordinance violations, on November 18, 2002, and May 5, 2003, for violating Code Section 2-209(c), commercial equipment, which prohibits the parking of commercial vehicles in residential areas unless parked within an entirely enclosed structure or unless the vehicle is less than 20 feet in length. [2]   At trial, the court received evidence and testimony from two code investigators that showed, on both days that the alleged violations occurred, a tow truck was parked on residential property owned by Spaulding, the tow truck was not loading or unloading, was outside a fully enclosed structure, was longer than 20 feet, and had “Spaulding Towing” written on it.  Neither code investigator saw Spaulding nor knew who parked the tow truck.  Spaulding presented no defense.  The trial court denied Spaulding’s motion for a voluntary dismissal or directed verdict and found Spaulding guilty of both charges.

            On appeal, Spaulding argues that the trial court committed reversible error as the Section 29-209(c) does not impose strict liability upon a real property owner and the evidence failed to prove guilt.  Spaulding also argues that Section 29-209(c) is unconstitutionally vague. [3]   In addressing the second issue, the Court finds no support for Spaulding’s argument that the applicable section is unconstitutionally vague.  The Court finds that Section 29-209(c) uses words of common usage that gives a person of ordinary intelligence fair notice of what conduct is prohibited.  See State v. Delgrasso, 653 So.2d 459, 463 (Fla. 2d DCA 1995)(stating that if the language of the statute, when measured by common understanding and practice, conveys a

sufficiently definite warning of what conduct is proscribed it should not be found unconstitutionally vague).

            In addressing the first issue, the Court finds that the trial court ruled from the bench, “[w]hat I will do based on the testimony I heard and the language of the statute, I think it’s a strict liability statute, and I will find Mr. Spaulding guilty of both charges.”  Without speculating as to the meaning of the trial court’s oral ruling, the Court finds that Section 29-209(c) is not a strict liability section; rather, for Spaulding to be liable under this section, the City was required to offer substantial proof that Spaulding was responsible for the “parking of commercial equipment in any residential district.”  See Johnston v. Orange County, 342 So.2d 1031, 1033 (Fla. 4th DCA 1977)(finding that justice requires substantial proof of the violation of municipal property restrictions).

            The Court rejects Spaulding’s argument that, to be held accountable for the charges, the City was required to offer proof that Spaulding was actually observed in the act of  “parking” the tow truck as such an interpretation of Section 29-209(c) would be unreasonable.  See State v. Atkinson, 831 So.2d 172, 174 (Fla. 2002)(finding that courts should avoid construction of a statute in a manner that leads to unreasonable, harsh, or absurd consequences).  Indeed, Spaulding presented no evidence or testimony to refute the City’s case that Spaulding was responsible for the tow truck, bearing his name, being unlawfully parked at his residential home.  Accordingly, the Court finds that the undisputed facts of this case provide competent substantial evidence to support the trial court’s final judgment of guilt.  See Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998)(stating that the appellate court must indulge every fact and inference in support of the trial court’s judgment which is the equivalent of a jury verdict).

            Therefore, it is, 

            ORDERED AND ADJUDGED that the Judgment and Sentence is affirmed.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of September 2004.

 

 

                                                                        ___________________________________

                                                                        ROBERT J. MORRIS, JR.

                                                                        Circuit Judge

 

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge

 

 

Copies furnished to:

Judge Dorothy Vaccaro

 

Aubrey O. Dicus, Esquire

Post Office Box 41100

St. Petersburg, FL  33710

 

Ernest Mueller, Esquire

Post Office Box 2842

St. Petersburg, FL  33731



[1] The Court notes that the transcript shows the trial court ordered Spaulding to pay $700 at the conclusion of the bench trial.  It is unclear whether the $300 fine set forth in the appealed order is a scrivener’s error.  In any case, neither party has raised the amount of the fine as an issue on appeal and this discrepancy has no bearing on the outcome of this appeal.

[2] In full, this section states: The parking of commercial equipment in any residential district is prohibited.  This requirement shall not be interpreted to prohibit commercial vehicles from loading and unloading in any residential district and shall not prevent temporary parking of vehicles on a lot as accessory to a lawful commercial use of the same residential lot or require such vehicles to be garaged.  Parking is, however, permitted within any entirely enclosed structure which meets the regulatory requirements for the applicable zoning district.  For each dwelling unit on a residential lot, one piece of commercial equipment designated as a van, pick-up truck or similar vehicle of 20 feet or less in overall length and seven feet or less of overall height is allowed to park on each residential lot.

[3] The Court will not address the issue of whether the City properly provided Spaulding with notice of the Code violations, raised by Spaulding for the first time in his Reply Brief.  This argument was not presented to the trial court so is deemed waived.  See State v. Kelly, 640 So.2d 231, 233 (Fla. 4th DCA 1994).