IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN
AND
APPELLATE
DIVISION
HOWARD EDWARD SPAULDING,
Appellant,
vs.
Appeal No. CRC 03-00066 APANO
UCN522003AP000066XXXXCR
STATE OF
Appellee.
____________________________________/
Opinion
filed ________________________
Appeal
from Judgment and Sentence
Judge
Dorothy Vaccaro
Aubrey
O. Dicus, Esquire
Attorney
for Appellant
Ernest
Mueller, Esquire
Attorney
for Appellee
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
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 (
Therefore, it is,
ORDERED AND ADJUDGED that the Judgment and
Sentence is affirmed.
DONE AND ORDERED in Chambers, at
___________________________________
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
Ernest Mueller, Esquire
Post Office Box 2842
[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.