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
Appellee.
______________________/
Opinion filed:____________.
Appeal from the County Court
for
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
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
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
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