WALTER C. HEADLEY, CHIEF OF POLICE, CITY OF MIAMI, APPELLANT,

v.

STATE OF FLORIDA EX REL. EMANUEL SELKOWITZ, APPELLEE

Fla. 3d DCA | 1964-04-07

No. 63-410

Before BARKDULL, C. J., and CARROLL and TILLMAN PEARSON, JJ., TILLMAN PEARSON, J., concurs in the above opinion.

163 So. 2d 13 Florida District Court of Appeal, Third District (1964) Caution

Cited by 4 cases

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Holding

The court held that the municipal ordinance was unconstitutionally vague and indefinite, affirming the trial court's decision to quash the conviction.

Facts & Procedural History

Emanuel Selkowitz was convicted of violating a municipal ordinance prohibiting "standing, loitering, or strolling about in any place in the city, and …

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Topics

Municipal Ordinances Vagueness Doctrine Writ Of Habeas Corpus Due Process

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Opinion of the Court

BARKDULL, Chief Judge.

The appellee, Emanuel Selkowitz, was charged with violating a municipal ordinance of the City of Miami, which read as follows:

“ * * * standing, loitering, or strolling about in any place in the city, and not being able to give a satisfactory account of himself * *

He was subsequently convicted and’ sentenced for the violation thereof. He then filed a petition for writ of habeas corpus, contending that the ordinance in question was unconstitutional, as being too vague and indefinite, and failing to apprise an ordinary citizen of its effect. The matter came on to be determined by the trial court, who found that the 'ordinance was in fact too broad, vagufe and indefinite; .issued the writ of habeas corpus arid quashed the -conviction and sentence. . .

This action is now brought on for review, and the sole point preserved is the finding by the trial court that the ordinance was too vague and indefinite. We affirm. The ordinance in question fails to define the area involved within the municipality; fails to define or limit the time of day it is applicable and, by its broad terms, subjects any citizen [who may be engaged in lawful pursuits] to possible arrest merely because he cannot give what is a “satisfactory account”.

Therefore, we affirm the action of the trial court in the issuance of the writ of habeas corpus, in accordance with the views expressed in McCall v. State, 156 Fla. 437, 23 So.2d 492; Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102.

Affirmed.

CARROLL, Judge

(concurring specially).

I concur in the opinion and judgment in this case, but recognize the importance and need for an ordinance of this kind in a metropolitan area.

I agree that the provision in question of the Miami ordinance is too broad. It fails to meet the standard for such ordinances, as set out in City of St. Petersburg v. Calbeck, Fla.App.1959, 114 So.2d 316, and does not accord due process.

*15Certain distinctions between the Hollywood ordinance and the Miami ordinance should be noted. As to places other than on the streets, the former applies to persons “loitering” in designated public places. The latter, the Miami ordinance, is not so limited, but covers all persons (not restricted to those loitering or wandering) and not limited to named public places but everywhere throughout the city. The former is not made to apply to all persons on the streets, but to those “wandering” there. The latter applies to all persons standing or strolling, as well as those loitering, and not just on the streets, but “any place in the city.” Those distinctions would appear material.

TILLMAN PEARSON, J., concurs in the above opinion.

Concurrence

CARROLL, Judge

(concurring specially).

I concur in the opinion and judgment in this case, but recognize the importance and need for an ordinance of this kind in a metropolitan area.

In the Calbeck case the court said the ordinance involved there was an abbreviated form of the Hollywood ordinance shown in the Capehart case, which the Supreme Court previously had held valid. In the Hollywood disorderly conduct ordinance, shown in the latter case (State ex rel. Green v. Capehart, 138 Fla. 492, 189 So. 708) the acts it listed included “all persons, found loitering about' any hotel, block, barroom, dram-shop, gambling house or disorderly house, or wandering about the-streets either by night or by day without any known lawful means of support, or without, being able to give a satisfactory-account of themselves”' (Emphasis added.) . . . Certain distinctions between the Hollywood ordinance and the Miami ordinance should be noted. As to places other than on the streets, the former applies to persons “loitering” in designated public places. The latter, the Miami ordinance, is not so limited, but covers all persons (not restricted to those loitering or wandering) and not limited to named public places but everywhere throughout the city. The former is not made to apply to all persons on the streets, but to those “wandering” there. The latter applies to all persons standing or strolling, as well as those loitering, and not just on the streets, but “any place in the city.” Those distinctions would appear material.

TILLMAN PEARSON, J., concurs in the above opinion.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

State v. Llopis, 257 So. 2d 17 (Fla. 1971)

…ommon intelligence are not required to guess at its meaning? The imposition of such liability violates the very fundamental precepts of due process, Locklin v. Pridgeon [158 Fla. 737], 30 So. 2d 102 (Fla.1947) ; Headley v. State [ex rel. Selkowitz], 163 So. 2d 13 (Fla.1964) reh. den.; Headley v. Selkowitz, 171 So. 2d 368 (Fla.1965) reh. den. Webster’s Seventh New Collegiate Dictionary, 1970, at page 537, defines ‘might’ in a variety of terms, among them ‘possibility’ and ‘probability’. “The foregoing consid…
Headley v. Selkowitz, 171 So. 2d 368 (Fla. 1965)

…trolling about in any place in the City and not being able to give a satisfactory account of himself, or who is without any lawful means of support.” The District Court of Appeal affirmed. See Walter C. Headley v. State ex rel. Selkowitz, Fla.App., 163 So. 2d 13. It said: “ * * * The ordinance in question fails to define the area involved within the municipality; fails to define or limit the time of day it is applicable and, by its broad terms, subjects any citizen (who may be engaged in lawful pursuits) t…
Reeves v. State, 187 So. 2d 403 (Fla. 3d DCA 1966)

…tted into evidence. The principal thrust of the appellant’s argument as to the validity of the arrest in the first instance is that the ordinance in question has been declared unconstitutional. See: Headley v. State ex rel. Selkowitz, Fla.App.1964, 163 So. 2d 13; Headley v. Selkowitz, Fla.1965, 171 So. 2d 368. We do not agree that the police officers were without the authority to arrest for vagrancy for one or any of the following reasons: (1) The effect of the circuit court order holding the ordinance unco…

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Authorities Cited

Locklin v. Pridgeon, 158 Fla. 737 (Fla. 1947)
City OF ST. Petersburg v. Calbeck, 114 So. 2d 316 (Fla. 2d DCA 1959)
McCALL v. The State of Fla. Ex rel. E. R. Daniels, 156 Fla. 437 (Fla. 1945)
State ex rel. William Green v. Capehart, 138 Fla. 492 (Fla. 1939)

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WALTER C. HEADLEY, CHIEF OF POLICE, CITY OF MIAMI, APPELLANT, v. STATE OF FLORIDA EX REL. EMANUEL SELKOWITZ, APPELLEE

Cases With Similar Vibessemantic neighbors from the corpus

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Authorities Cited

WALTER C. HEADLEY, CHIEF OF POLICE, CITY OF MIAMI, APPELLANT,

v.

STATE OF FLORIDA EX REL. EMANUEL SELKOWITZ, APPELLEE