NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

 

PATRICK JOSEPH ACQUIN

            Appellnt,

 

 

v.                                                                                                                   Appeal No. CRC 11-00022 APANO

UCN: 522011AP000022XXXXCR

 

STATE OF FLORIDA

            Appellee.

__________________________________/

 

 

Opinion filed October 31, 2011.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge Patrick J. Caddell

 

Kristen Clanton, Esquire

George E. Eppsteiner, Esquire

Bob Dillinger, Esquire

Attorneys for Appellant

 

Kimberly D. Proano, Esquire

Assistant City Attorney

City of St. Petersburg

Attorney for Appellee

 

 

ORDER AND OPINION

 

            PETERS, Judge.

THIS MATTER is before the Court on Appellant, Patrick Joseph Acquin’s, appeal from a conviction, after a non-jury trial, of street vending in violation of § 25-9 of the City Code of St. Petersburg.  Appellant argues his Motion for Judgment of Acquittal should have been granted.  After review of the record and the briefs, this Court affirms the judgment and sentence.

Factual Background and Trial Court Proceedings

            On July 30, 2010 at approximately 6 p.m., Appellant, Patrick Joseph Acquin, was standing on the shoulder of Roosevelt Boulevard in St. Petersburg holding a piece of cardboard.  The dimensions of the cardboard were approximately twelve (12) inches by twenty four (24) inches.  There was nothing written on the cardboard.  An officer of the St. Petersburg Police Department testified at non-jury trial to several points; (1) that he “observed the defendant standing on the west shoulder of Roosevelt Boulevard, holding a sign and approaching vehicles,” (2) that he “was approaching vehicles and receiving money from people and the occupants in the vehicles,” (3) that Mr. Acquin was “showing the sign to people.  And then people, of course, he’d walk over to them and he’d put his hand out, and they would put money in his hand, and I observed him as he was walking down the side of the road counting change,” (4) that Mr. Acquin responded to the officer saying “[h]e knew he wasn’t supposed to be out there, and that, basically, to quote the defendant, ‘[t]he law was [bull****],’ he was going to do it anyway, whether we wanted him to or not, that he had been warned earlier by an officer, who, by the way, notified me on the radio that he already checked out with him and, you know, issued him a warning, or warned him.”  The officer issued Mr. Acquin a Notice to Appear for violating § 25-9 of the City Code of St. Petersburg.  At the conclusion of the State’s case, Mr. Acquin moved for Judgment of Acquittal.  The motion was denied. 

            In his case, Mr. Acquin testified, in part, to several points; (1) “I was protesting the ordinance that had been passed, and I don’t remember being warned prior to the officer stopping me,” (2) “I was standing on the side of the road, and I was holding up the sign,” (3) that he didn’t remember receiving any money prior to the officer confronting him but he did receive an orange, (4) “I told him I was protesting the ordinance.  I even asked him to take me to jail so I could make a case out of this.”  At the conclusion of the non-jury trial, Mr. Acquin was found guilty.  This appeal was timely filed.

Issue

            Mr. Acquin argues that the trial court erred when it denied his Motion for Judgment of Acquittal because the evidence was insufficient to support a conviction and because the involved ordinance cannot be constitutionally applied to his conduct of holding a blank sign in protest.

Judgments of Acquittal

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. … Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. … If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. … However, if the State's evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant's reasonable hypothesis of innocence. … [If] the evidence in [the] case [is] both direct and circumstantial, it is unnecessary to apply the special standard of review applicable to circumstantial evidence cases.

 

Pagan v. State, 830 So.2d 792, 803 (Fla. 2002) (internal citations omitted).  “[W]here one or more of the elements of the crime are proven by direct evidence this heightened standard of review is not applicable.”  Jenkins v. State, 1 So.3d 317, 320 (Fla. 3rd DCA 2009); State v. Burrows, 940 So.2d 1259, 1261 -1262 (Fla. 1st DCA 2006).

            In the present case there was direct evidence and circumstantial evidence as to the factual elements of the offense.  The heightened standard of review does not apply.  Moreover, there was competent, substantial evidence to support the conviction.

The Street Vending Ordinance

            § 25-9 of the City Code of St. Petersburg provides in pertinent part “[i]t shall be unlawful to engage in street vending.”  St. Petersburg, FL., Code § 25-9 (b).

Street vending means soliciting or attempting to solicit employment, business, contributions, donations, or sales or exchanges, of any kind, from the driver or an occupant of a motor vehicle or distributing or attempting to distribute any product or material to the driver or an occupant of a motor vehicle, when: (1) The motor vehicle is located on the traveled portion of a designated roadway and is not legally parked; and (2) Such solicitation or distribution, or attempted solicitation or distribution, results in, or is intended to result in, a transfer of money or any other thing of value, or a transfer of any other product or material, between the person engaging in the solicitation or distribution, or attempted solicitation or distribution, and the driver or an occupant of the motor vehicle.

St. Petersburg, FL., Code § 25-9 (c).  This ordinance was subjected to a federal court challenge and was found by a Federal District Court to be narrowly tailored in addressing a significant governmental interest.  See Times Publishing Company v. City of St Petersburg, Case No.: 8.10-CV-01273-T-26MAP (M.D. Fla. June 7, 2010). 

In the present case, it is not disputed that § 25-9 of the City Code of St. Petersburg is constitutional on its face.  Appellant, in the reply brief, states he does “not argue that the ordinance [is] facially unconstitutional, but that the overbroad application of the ‘street vending’ ordinance to prohibit [Mr. Acquin’s] conduct of peacefully holding a blank sign in protest violated his First Amendment rights.”  The difficulty with this argument is that Mr. Acquin was cited for street vending, not for standing on the shoulder of Roosevelt Boulevard holding a piece of cardboard with nothing written on it, in supposed protest of the ordinance.  Mr. Acquin did not simply hold his piece of cardboard and voice his objections or opinions about the involved ordinance; he was observed approaching vehicles, putting his hand out and receiving money from the occupants of the vehicles in the roadway.  This conduct is a violation of the involved ordinance.  The fact that Mr. Acquin claims to have been involved in an act of protest does not provide a license for him to violate this lawful ordinance with impunity.

The First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.  Heffron v. International Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564, 101 S.Ct. 2559 (1981).  The activities of those protected by the First Amendment are subject to reasonable time, place, and manner restrictions.  Heffron, 452 U.S. at 647, 101 S.Ct. at 2564.  In the present appeal the facial constitutionality of the subject ordinance is not an issue.  The issue is Mr. Acquin’s argument that the ordinance is unconstitutional as applied.  We hold that the application of the ordinance in the present case did not violate Mr. Acquin’s rights under the First Amendment.

Conclusion

The conviction of Mr. Acquin was supported by competent, substantial evidence.  § 25-9 of the City Code of St. Petersburg is constitutional on its face; it is content neutral and narrowly tailored to address a significant governmental interest.  The application of the ordinance in the present case did not violate Mr. Acquin’s rights under the First Amendment of the Constitution of the United States.  Based upon the foregoing, this court finds there was no error by the trial court.

We affirm the judgment and sentence.

IT IS THEREFORE ORDERED that the conviction of the Appellant is affirmed. 

 

 

ORDERED at Clearwater, Florida this ____ day of October, 2011.

 

Original order entered on October 31, 2011 by Circuit Judges Michael F. Andrews, Raymond O. Gross, and R. Timothy Peters.

 

 

 

 

           

cc:       Honorable Patrick J. Caddell

            Kristen Clanton, Esquire

George E. Eppsteiner, Esquire

Bob Dillinger, Esquire

Kimberly D. Proano, Esquire