NOT FINAL UNTIL TIME EXPIRES FOR REHEARING
AND, IF FILED, DETERMINED
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
GREGORY A. LOCKETT
Appellant,
v. Appeal No. CRC 07-00075APANO
UCN 522006MO034499XXXXNO
STATE OF
Appellee.
__________________________________/
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge Robert Dittmer
Bruce G. Howie, Esquire
Attorney for Appellant
John C. Wolfe, Esquire
Jeanne Hoffman, Esquire
Attorneys for Appellee
ORDER AND OPINION
PETERS, Judge.
THIS MATTER is before the Court on Appellant, Gregory A. Lockett’s appeal from an order denying Appellant’s Motion to Dismiss. After review of the record and the briefs, this Court affirms the denial of the Motion to Dismiss.
Factual Background and
Trial Court Proceedings
On November 24, 2006, the Appellant,
Gregory A. Lockett, was issued a Notice to Appear for a violation of the City
Code 21-40 of the City of
Standard of Appellate Review
Rulings on the constitutionality of an ordinance are
subject to de novo review. State v. J.P., 907 So2d 1101, 1107 (
The Issue
Appellant, in his brief, argues that the trial court erred in applying the “rational basis test” to decide if St. Petersburg City Ordinance 21-40(1)(a) is constitutional. Specifically Appellant maintains, “(f)or a homeless person, seeking a place to sleep within a public park is a fundamental right, the violation of which is prohibited by the Eighth Amendment”. Appellant concludes that because a fundamental right was violated the ordinance should have been subjected to strict scrutiny in the trial court’s ruling on the motion to dismiss. The difficulty with this argument is that there is inadequate legal authority to support Appellant’s assertion that a “fundamental right” was involved in the present controversy.
Testing the
Constitutionality of an Ordinance
1.
Generally. When a statute or ordinance operates to the
disadvantage of a suspect class or impairs the exercise of a fundamental right,
then the law must pass “strict scrutiny”.
J.P., 907 So2d at 1109. Strict
scrutiny requires the City to demonstrate that the
challenged regulation serves a compelling interest of the city and accomplishes
its goal through the use of the least intrusive means. J.P., 907 So2d at 1110; see Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985).
On the other hand, if an ordinance does not infringe upon a fundamental
right or target a protected class, equal protection claims relating to it are
judged under the rational basis test; specifically, the ordinance must be
rationally related to the achievement of a legitimate government purpose. Joel, 232 F.3d at 1357; see Bannum, Inc., v. City of
2. Fundamental
Rights. A fundamental right is one which has its
source in and is explicitly guaranteed by the federal or Florida
Constitution. J.P., 907 So2d at 1109. Sleeping
out-of-doors is not fundamental right. Joel v. City of
Homeless persons are
not a suspect class, nor is sleeping out-of-doors a fundamental right. See
D'Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (11th Cir.1995) (homeless not
a suspect class); Kreimer v. Bureau of Police for the Town of Morristown,
958 F.2d 1242, 1269 n. 36 (3rd Cir.1992) (same); Davison v. City of Tucson,
924 F.Supp. 989, 993 (D.Ariz.1996) (same); Johnson v. City of Dallas, 860 F.Supp. 344, 355 (N.D.Tex.1994)
(same), rev'd on other grounds, 61 F.3d 442 (5th Cir.1995); Joyce v. City and County of San
Francisco, 846 F.Supp. 843, 859 (N.D.Cal.1994) (declining to be the
first court to recognize fundamental right to sleep), dismissed, 87 F.3d
1320 (9th Cir.1996); State of Hawaii v. Sturch, 82 Hawai'i 269, 921 P.2d
1170, 1176 (App.1996) (noting that there is “no authority supporting a specific
constitutional right to sleep in a public place” unless it is expressive
conduct within the ambit of the First Amendment or is protected by other
fundamental rights). But see Pottinger v. City of
Joel, 232 F.3d at 1357. The act of sleeping
in a public place, absent expressive content, is not
constitutionally-protected conduct. Whiting v. Town of
The Present Case
St. Petersburg City Ordinance 21-40(1)(a) prohibits persons from entering or remaining in a city park from 11:00 p.m. until 30 minutes before sunrise. A “fundamental right” was not impacted by this ordinance in the present controversy. Secondly, as a matter of constitutional law, homeless persons are not a suspect class. Therefore, in the present case, the trial court correctly determined that the rational basis test was appropriate. This Court approves and incorporates herein the following portion of the trial court’s order explaining the application of the rational basis test to the present case:
The
first step in determining whether the statute survives rational basis scrutiny
is to determine whether there is a legitimate government purpose served by the
enactment of the statute. Haves v. City of
The
second step in determining whether the statue survives rational basis scrutiny
is to determine whether a rational basis exists for the enacting body to
believe that the legislation would further the hypothesized purpose. “The proper inquiry is concerned with the
existence of a conceivably rational basis, not whether the basis was actually
considered by the enacting body.”
The Defendants also argue that the ordinance violates Equal Protection because of arbitrary enforcement, and ostensibly, that the ordinance is disproportionately enforced against the homeless. In support of this contention, the Defendants presented sworn testimony that two of the Defendants, who were not homeless, have violated this ordinance for many years at parks other than Williams Park, without repercussion. Further, they testified that when they purposefully violated the ordinance in question as part of a homeless demonstration (along with a third co-defendant who was actually homeless), they were cited with violating the statute.
However, in order to find the ordinance violative of the Due Process clause, a discriminatory purpose in enacting the ordinance must be proved. State v. Joel, 232 F.3d 1353 (11th Cir. 2000). In Joel, the Defendants presented evidence that at least 98 percent of those prosecuted under the challenged ordinance in that case were homeless. The court held that it was not enough to show that the ordinance had a “disproportionate effect” on the homeless, and that a discriminatory purpose had not been proven. Joel at 1359. In this case, the Defendants presented far less evidence of disproportionate enforcement against the homeless, and a discriminatory purpose was likewise not proven.
Therefore, This Court finds that St. Petersburg City Code section 21-40(a) does not violate the Equal Protection Clause of the United States Constitution.
Conclusion
In
summary, as a matter of constitutional law, homeless persons are not a suspect
class and the involved ordinance did not impair the exercise of a fundamental
right by the Appellant. The trial court correctly
applied the “rational basis test” to decide if St. Petersburg City Ordinance
21-40(1)(a) was constitutional. Accordingly,
the trial court’s order denying Appellant’s Motion to Dismiss must be affirmed.
IT IS THEREFORE ORDERED that the order denying Appellant’s Motion to Dismiss is affirmed.
ORDERED at
_____________________________
Michael F. Andrews Circuit Court Judge
_____________________________
Raymond O. Gross
Circuit Court Judge
____________________________
R. Timothy Peters
Circuit Court Judge
Copies furnished to:
Honorable Robert Dittmer
Bruce G. Howie, Esquire
John C. Wolfe, Esquire
Jeanne Hoffman, Esquire