JLS v. State

947 So. 2d 641, 2007 WL 172126
Procedural entryThis page is a short order in JLS v. State. Read the opinion of the Court — 2007 Fla. App. LEXIS 707
District Court of Appeal of Florida·Decided January 24, 2007·No. 3D05-2604·Published

Opinion

947 So.2d 641 (2007)

J.L.S., a juvenile, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D05-2604.

District Court of Appeal of Florida, Third District.

January 24, 2007.

*643 Bennett H. Brummer, Public Defender and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, and Erik M. Figlio, Assistant Attorney General, for appellee.

Before GERSTEN, GREEN, and SUAREZ, JJ.

GREEN, J.

J.L.S. appeals his delinquency adjudication for trespass in a school safety zone in violation of Section 810.0975(2)(b), Florida Statutes (2005), on the basis that this statute is facially unconstitutional for overbreadth, vagueness, and substantive due process. We find no constitutional infirmity to this statute on these grounds and affirm.

I.

J.L.S., a juvenile and student at Douglas MacArthur High School North, was spotted walking through Miami Central High School's ("Central") safety zone at 7:25 a.m. on a school day by a police officer. On two prior separate occasions, J.L.S. had been warned not to return to Central's school safety zone. J.L.S. was arrested and a petition of delinquency was filed charging him with one count of trespass within a school safety zone in violation of Section 810.0975(2), Florida Statutes and one count of resisting arrest without violence in violation of Section 843.02, Florida Statutes (2005).

J.L.S. moved to dismiss the petition for delinquency on the grounds that Section 810.0975(2)(b) of the statute was unconstitutional on its face. After a hearing on the motion, the trial court denied the same. J.L.S. then pled no contest to both charges in the petition, but reserved his right to appeal the denial of his dispositive motion to dismiss. J.L.S. was adjudicated delinquent and placed on probation with certain special conditions.

On this appeal, J.L.S. seeks our de novo review of his facial constitutional challenges to Section 810.0975(2)(b) of the statute. That section provides that:

During the period from 1 hour prior to the start of a school session until 1 hour after the conclusion of a school session, it is unlawful for any person to enter the premises or trespass within a school safety zone or to remain on such premises or within such school safety zone when that person does not have a legitimate business in the school safety zone *644 or any other authorization, license, or invitation to enter or remain in the school safety zone. Any person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

J.L.S. essentially argues that this section is facially unconstitutional because it is impermissibly overbroad, vague, and violates substantive due process.

A. OVERBREADTH

J.L.S. first argues that Section 810.0975(2)(b), is impermissibly overbroad because: (1) it restricts a substantial amount of constitutionally protected conduct such as freedom of speech, peaceable assembly with others for political or social purposes, or freedom to move about freely; (2) in the absence of a scienter requirement, it prohibits entirely innocent activities such as leisurely walking or driving about in the school zone; and (3) it is not narrowly tailored to effectuate its purpose of protecting school aged children. We disagree.

Initially, we recognize that both the First Amendment to the United States Constitution and Article 1, Section 4, of the Florida Constitution protect the rights of individuals to express themselves in many ways. See Wyche v. State, 619 So.2d 231, 233 (Fla.1993). "The Constitutions protect not only speech and the written word, but also conduct intended to communicate." Id. The rights of individuals to associate with whom they please and to assemble with others for political or social purposes are also protected by these constitutional provisions. Id.

A statute is deemed to be overbroad if it seeks to control or prevent activities properly subject to regulation by means which sweep too broadly into an area of constitutionally protected freedom. See Firestone v. News-Press Publ'g Co., Inc., 538 So.2d 457, 459 (Fla.1989). Any restrictions on first amendment rights must be supported by a compelling governmental interest, and must be narrowly drawn to insure that there is no more infringement than is necessary. Id.

The doctrine of overbreadth permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Sult v. State, 906 So.2d 1013, 1019 (Fla.2005) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). In other words, the issue of overbreadth is one of the few exceptions to the traditional rules that courts will not consider factual questions beyond the scope of the case at hand. See Schmitt v. State, 590 So.2d 404, 411-12 (Fla.1991). "`Hypothetical consequences' are considered in the case of allegedly overbroad statutes precisely because this is the only way to give effect to the constitutional right of free speech." Id. at 411.

The deleterious result of overbroad statutes often is described as a "chilling effect." . . . The overbreadth doctrine and its requirement of considering hypothetical consequences is intended to eliminate this chilling effect and thus allow for the free, unhindered exercise of constitutional rights.

Id. at 412 (citations omitted). It is said, however, that in the arena of free speech and expression, the overbreadth doctrine is an unusual remedy which is to be used sparingly, particularly where the challenged statute is primarily meant to regulate *645 conduct and not merely pure speech. Id.

In the instant case, J.L.S.'s own conduct is clearly proscribed by Section 810.0975(2)(b), and we recognize that he has standing to challenge this statute for facial overbreadth. We nevertheless cannot conclude that this statute is substantially overbroad and therefore facially unconstitutional. This statute is designed to primarily regulate conduct (i.e. trespass within a school safety zone) rather than pure speech. We believe that any applications of this statute that violate the First Amendment can be remedied through as-applied litigation.

Initially, we note that J.L.S. bears the burden of demonstrating from both the text of the statute and from actual facts that substantial overbreadth exists. See Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). On the record before us, we find that J.L.S. has not met that burden. J.L.S. argues that the statute is impermissibly overbroad because it impedes the right of speech, association, movement, and peaceful political and/or social assembly within the designated school zone. Under the plain language of this statute, however, a person is not in violation if that person (1) has legitimate business in the school zone, or (2) otherwise has authorization, license, or invitation to enter or remain in the school zone.[1] J.L.S.

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JLS v. State, 947 So. 2d 641, 2007 WL 172126 (Fla. Ct. App. 2007).

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