County Traffic Court: TRAFFIC INFRACTIONS – Motion to dismiss citation for violating section 316.3045(1), Florida Statutes, which prohibits a person operating or occupying a motor vehicle on a street or highway from amplifying the sound from a radio, tape player, or other mechanical soundmaking device such that the sound is plainly audible at a distance of 25 feet or more from the vehicle, should have been granted. Controlling precedent has held the “plainly audible” standard to be unconstitutionally vague and overbroad. Reversed and remanded.  Catalano v. State, CRC08-00054APANO (Fla. 6th Cir. App. Ct. February 4, 2010); Schermerhorn v. State, CRC08-00055APANO (Fla. 6th Cir. App. Ct. February 4, 2010).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

ON APPEAL TO THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

APPELLATE DIVISION

 

 

 

RICHARD T. CATALANO

 

            Appellant,                                           Appeal Case No.: CRC 08-00054  APANO

                                                                         UCN No.:             522007TR01086XXXXXX

v.                                                                                                    522008AP000054XXXXCR

 

STATE OF FLORIDA,

 

            Appellee.

______________________/

 

Opinion filed:____________.

 

Appeal from the County Court

for Pinellas County

County Judge William Overton

 

Richard T. Catalano, Esquire

Attorney for Appellant

 

Helen Brewer Fouse, Esquire

Assistant Attorney General

Attorney for Appellee

 

H. Beth Lastinger, Esquire

Associate General Counsel

Pinellas County Sheriff’s Office

Attorney for Appellee

 

 

ORDER AND OPINION

DEMERS, JUDGE

            An officer issued Appellant a traffic citation for playing his car radio too loudly, in violation of Florida Statutes, §316.3045(1). The relevant portion of that statute provides:

It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmaking device or instrument from within the motor vehicle so that the sound is (a) plainly audible at a distance of 25 feet or more from the motor vehicle.

 

            The Appellant pled not guilty and moved to dismiss the citation on the grounds that Florida Statutes, §316.3045(1) is unconstitutionally vague and overbroad. The trial judge denied the motion to dismiss. Appellant changed his plea to nolo contendere and reserved his right to appeal the denial of the motion to dismiss. The trial judge accepted the plea, withheld adjudication, and imposed court costs. Appellant filed a timely notice of appeal. Reversal of the trial court’s order would be dispositive of this case. Thus, this Court has jurisdiction.

            In the trial court, the Appellant argued that Florida Statutes, §316.3045(1) is unconstitutionally vague because the phrase, “plainly audible at a distance of 25 feet” is vague and invites arbitrary enforcement. Appellant asserts that Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863 (Fla. 2d DCA 1996), is dispositive. In that case, the court held that the “plainly audible” standard in a county noise ordinance was unconstitutionally vague, overbroad, and invited arbitrary enforcement. The court concluded that the ordinance was flawed because it  prohibited noise that any individual happened to find “‘personally disturbing.’” 674 So.2d at 867. Appellant maintains that the ruling on the sufficiency of the “plainly audible” standard in the county noise ordinance in Easy Way applies to the “plainly audible” standard in Florida Statutes, §316.3045(1) and, therefore, Easy Way requires this Court to find the statute unconstitutional and reverse the trial judge.

            Appellee argued in the trial court that Easy Way is not controlling, but rather the decision in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998), compels the conclusion that Florida Statutes, §316.3045(1), is constitutional. The trial judge agreed with this argument and stated:

  Although the Court has denied Defendant’s Motion to Dismiss, the Court recognizes Defendant’s argument based upon and citing Easy Way v. Lee County, 674 So.2d 863 (Fla. 2d DCA 1996) in which the “plainly audible” standard was found to be unconstitutionally vague and ambiguous by the Second District Court of Appeal when used in a county noise control ordinance. Despite the Defendant’s arguments for reliance on Easy Way, the Court finds that Davis controls here in the application of §316.3045, Fla. Stat. Furthermore, the Court notes a distinction between the holding in Easy Way and the facts in the present case in that §316.3045, Fla. Stat., is a State statute that addresses the specific State purpose of the safe operation of motor vehicles as opposed to the general purpose of a county noise ordinance as in Easy Way.

 

            The trial judge’s conclusion is understandable. It is well established that where one district court has ruled on a matter, but the district court for the district in which a trial court is located has not ruled on that matter, the trial court must follow the decision of the other district court. Pardo v. State, 596 So.2d 665 (1992). This explains the trial judge’s ruling in the instant case. However, this Court disagrees with the trial judge’s conclusion that Davis is controlling.  

            In Pardo, the Court says:

The purpose of this rule was explained by the Fourth District in State v. Hayes: “The District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts-District Courts of Appeal. The proper hierarchy of decisional holdings would demand that in the event the only case on point on a district level is from a district other than the one in which the trial court is located, the trial court be required to follow that decision. Alternatively, if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it. Contrarily, as between District Courts of Appeal, a sister district’s opinion is merely persuasive.” (emphasis added)

 

596 So.2d at 666-67.

            It is clear from the language we have emphasized in Pardo that in determining whether Davis is controlling, this Court must consider much more than the conclusion that Florida Statutes, §316.3045 is unconstitutional. We must determine how the Fifth District ruled on the issues necessarily resolved to come to that conclusion and the resulting holding. The issue in Davis was not simply whether Florida Statutes §316.3045(1) is unconstitutionally vague. The issue was whether an enactment making it unlawful to play a noise making device in a motor vehicle so that it is “‘plainly audible at a distance of 100 feet or more from the motor vehicle’” is unconstitutionally vague? The court necessarily ruled that it was not. That was the holding of the case. Similarly, the issue in Easy Way was whether an enactment making it unlawful to operate certain devices “in a manner as to be plainly audible across property boundaries or through partitions common to two (2) parties within a building or plainly audible at fifty (50) feet from such device when operated within a public space or within a motorboat” where “the term ‘plainly audible’ shall mean any sound produced, including sound produced by a portable sound making device that can be clearly heard by a person using his or her normal hearing, at a distance of fifty (50) feet or more from the source” is unconstitutionally vague? The Second District ruled that it was. That was the holding of the case. In both Davis and Easy Way the courts ruled on the constitutionality of reliance on a “plainly audible” standard in evaluating the use of noise or sound producing devices in public. In Davis the court found it was valid. In Easy Way the court found it was invalid. Clearly, the Second District and the Fifth District are in conflict and this Court must follow the Second District. The fact that in Davis the distance is measured from a motor vehicle, while in Easy Way the distance is measured from a building, makes no difference. 

            Additionally, the different purpose of the ordinance and the statute doesn’t make essentially identical language any clearer, nor does it change the fact that the issue ruled on by the two district courts is essentially the same. Whether the “plainly audible” standard is applied in a noise ordinance or in a traffic statute, the test for constitutionality is the same. The law “must provide adequate notice to persons of common understanding concerning the behavior prohibited and the specific intent required; it must provide citizens, police officers, and the courts alike with sufficient guidelines to prevent arbitrary enforcement.” Easy Way, 674 So.2d at 865-66.

            In summary, this Court concludes that the decision in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998) conflicts with the decision in Easy Way v. Lee County, 674 So.2d 863 (Fla. 2d DCA 1996). And this Court is obliged to follow the ruling of the Second District.

ACCORDINGLY, this Court REVERSES the trial court’s order denying the Motion to Dismiss and the Judgment and Sentence in this case and remands with instructions that the defendant be discharged. 

BULONE and HELINGER, C. JJ. Concur.

            ORDERED at St. Petersburg, Florida this ____ day of _________________, 2010.

 

Original order entered on February 4, 2010 by Circuit Judges David A. Demers, Joseph A. Bulone, and Chris Helinger.

 

 

Copy to:

 

County Judge William Overton

 

Richard T. Catalano, Esquire

Pro Se

 

 

Helen Brewer Fouse, Esquire

Assistant Attorney General

Attorney for Appellee

 

H. Beth Lastinger, Esquire

Associate General Counsel

Pinellas County Sheriff’s Office

Attorney for Appellee