Bd. of Co. Com'rs of Palm Beach v. Db

784 So. 2d 585, 2001 Fla. App. LEXIS 6954, 2001 WL 527644
CourtDistrict Court of Appeal of Florida
DecidedMay 16, 2001
Docket4D00-2590
StatusPublished
Cited by8 cases

This text of 784 So. 2d 585 (Bd. of Co. Com'rs of Palm Beach v. Db) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bd. of Co. Com'rs of Palm Beach v. Db, 784 So. 2d 585, 2001 Fla. App. LEXIS 6954, 2001 WL 527644 (Fla. Ct. App. 2001).

Opinion

784 So.2d 585 (2001)

The BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Appellant,
v.
D.B., Appellee.

No. 4D00-2590.

District Court of Appeal of Florida, Fourth District.

May 16, 2001.

*586 Andrew J. McMahon, Chief Assistant County Attorney, West Palm Beach, for appellant.

*587 No appearance for appellee.

HAZOURI, J.

On July 27, 1999, the Board of County Commissioners of Palm Beach County adopted Ordinance No. 99-18 (1999), as amended and codified in the "Adult Entertainment Code." The ordinance states that it was enacted "to ensure that minors are not performing in adult entertainment establishments." The ordinance requires that performers in the adult entertainment business obtain worker identification cards prior to performing. In order to obtain the worker identification card, the applicant must complete an application, which requires that the applicant provide to the Public Safety Department the following information:

(1) The applicant's name and any other names (including "stage" names) or aliases used by the applicant;
(2) The applicant's date of birth;
(3) The applicant's height and weight;
(4) A photograph of the applicant, taken by the Public Safety Department to be affixed to the worker identification card;
(5) The applicant's present residence address and telephone number;
(6) The applicant's Social Security Number; and
(7) Proof that the applicant is at least eighteen (18) years old by submittal of two (2) of the following:
a. Original birth certificate;
b. Original passport or visa which includes date of birth;
c. Original driver's license;
d. Original Florida ID Card;
e. Any other original photo ID which includes the applicant's social security number or date of birth.

Performers are required to keep the identification card on their person or with their personal belongings when performing. A performer who violates the ordinance is guilty of a misdemeanor of the second degree.

The adult entertainment establishment is required to retain a photocopy of all identification cards issued to performers at the establishment. Adult entertainment establishments are also prohibited from allowing persons without an identification card from performing, unless that person is a "featured performer" and 18 years of age or older. Adult entertainment establishments that fail to comply are subject to civil prosecution as provided in Palm Beach County Ordinance No. 90-45.

On September 10, 1999, D.B., an adult entertainment performer, filed a complaint for a declaratory judgment and injunction, challenging the constitutionality of the ordinance on the basis that it violates her right to privacy under article I, section 23, of the Florida Constitution. D.B. alleged that she had a real, present and legitimate fear that those who patronize adult entertainment establishments could contact her outside of her work premises with the desire to harass, harm, sexually assault or stalk her. She alleged that the public disclosure of her stage name, true name and photograph through Florida's Public Records Act, Chapter 119, Florida Statutes (1999), would allow those who may want to harm her to readily ascertain her whereabouts. She alleged that performers have a reasonable, necessary and legitimate expectation of privacy in their personal data and that the County does not have a compelling state interest to intrude upon her privacy, but even if it did, the County has not used the least intrusive manner to achieve that interest.

In its answer, the County argued that D.B. does not have a state constitutional right to keep her identity secret. The *588 County further argued that it has a compelling interest in protecting minors from exploitation and abuse and in maintaining a record of the identities of adult entertainment performers in an industry that has been known to spill over into illegal activities, which outweighs the minimal intrusion on D.B.'s right to privacy.

At the conclusion of a non-jury trial, the trial court found that "although the County has a compelling interest in preventing under age performers from exploitation and harmful sexual conduct," D.B. has a reasonable and legitimate expectation of privacy in her personal information. The trial court held that Palm Beach County Ordinance No. 99-18 (1999), was unconstitutional as a violation of article I, section 23, of the Florida Constitution and permanently enjoined the County from enforcing the ordinance.

On appeal, the County argues that adult entertainment performers do not have a reasonable expectation that they can keep their identity and the documentation verifying their age secret from the government. Thus, the County contends that the ordinance at issue does not infringe upon an adult entertainment performer's right to privacy as set forth in the Florida Constitution. We agree and reverse.

The Florida Constitution sets forth a right to privacy in article I, section 23, which provides:

Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.

Florida's right to privacy is much broader than that found in the Federal Constitution. Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985). The federal right protects only such fundamental interests as marriage, procreation, contraception, family relationships, and the rearing and educating of children. Carey v. Population Serv. Int'l, 431 U.S. 678, 684-85, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977). Florida's right to privacy "embraces more privacy interests, and extends more protection to the individual in those interests, than does the Federal Constitution." In re T.W., 551 So.2d 1186, 1192 (Fla.1989).

Florida's right to privacy is a fundamental right that requires evaluation under a compelling state interest standard. However, before the right to privacy attaches and the standard is applied, a reasonable expectation of privacy must exist. Winfield, 477 So.2d at 547. Therefore, the threshold issue is whether prospective adult entertainment performers have a reasonable expectation that they can refuse to disclose their identity and the documentation verifying their age to the County.

To determine whether D.B., as an applicant for a worker identification card, is entitled to protection under article I, section 23, Florida Constitution, this Court must first determine whether the County, through the ordinance at issue, is intruding into an aspect of D.B.'s life in which she has a "legitimate expectation of privacy." See City of North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla.1995). Whether an individual has a legitimate expectation of privacy is determined by considering all the circumstances, especially objective manifestations of that expectation. Id.

The issue presented in Kurtz was whether applicants seeking government employment have a reasonable expectation of privacy in their smoking habits under article I, section 23. Arlene Kurtz applied *589

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Bluebook (online)
784 So. 2d 585, 2001 Fla. App. LEXIS 6954, 2001 WL 527644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bd-of-co-comrs-of-palm-beach-v-db-fladistctapp-2001.