HomeMy WebLinkAboutM-78-0260Honorable Members of the
Ci .Commission
eorae . Knox, r
City A torney
April
Prostitution, Loitering, and
Disorderly Conduct
This memorandum is a compilation of all current Florida law
concerning prostitution and related subjects. Included herein are
the relevant statutes and cases from Miami, Dade County, and the
State of Florida. as well as the status of similar legislation in
other jurisdiction.
I. Florida Statutes and Cases on Prostitution
Florida Statutes Section 796.07, attached hereto sets forth
various prohibited activities. Miami City Code Section 38-45 which
prohibits prostitution and solicitation for prostitution is virtually
identical to the state statute. The standards as set forth in
Section 796.07 were recently upheld as constitutional in'State v. 8a.ee's,
343 So. 2d 9 (Fea 1977). Here the Supreme Court of Florida held
that the statutes prohibiting offer to commit or commission of prosti-
tution, lewdness or assignation were neither vague nor overbroad.
Id at 13. See also Beet v. State, 289 So 2d 388 (F.Ea. 1973).
This is, however, some dissention on the Supreme Court. In
Bates, supra, Justice England dissented citing the 1976 Supreme Court
decision of Camobeef v. State, 331 So 2d (F.ea. 1976). The Campbete
supra, decision in reversing a conviction for lewd and lacivious
behavior noted the presence of increasing pressure to ''cleanse Florida's
statutes of anachronistic moral codes." Id at 2.91. Thus, the
Court may be entering upon a new philosophy toward sexual offenses.
The decision in S.A.A. v. State, So 2d (F.ea. 1978),
Case No. 49,992, the. Court quashed a Third Distr ci t Court of Appeal
decision and reversed a loitering conviction. The Supreme Court
specifically rejected the Third District Court's finding that
repeated stopping of cars by a female was a breach of peace. The
Supreme Court found instead that there were:
"no specific and articulable facts which would
reasonable warrant a finding that the public
peace and order were threatened or that safety
of persons or property was jeopardized by the
actions of the juvenile."
Honorable Members of the
City Commission
April
Page 2
Prostitution, Loitering, and
Disorderly Conduct.
The Supreme Court did not, however, hold the loitering Statute
unconstitutional. Rather, the decision held that Florida Statute
Section 85-.021, "is a specific prohibition against specific conduct."
So long as all the element of the crime are present, a conviction
is entitled to be upheld. The elements which must be satisfied, as
set forth in State v. Fch.en, 311 So 2d 104 (FCcc, 1975) are:
the defendant loitered or prowled in a place, at a
time, or in a manner not usual for law-abiding indi-
viduals; (2) such loiterinc and prowling were under
circumstances that warranted a justifiable and
reasonable alarm or immediate concern for the safety
of persons or property in the vicinity. This alarm
is presumed under the statute if, when the law officer
appears, the defendant flees, conceals himself, or
refused to identify himself. Prior to any arrest,
the defendant must be afforded an opportunity to
dispel any alarm or immediate concern by identifying
himself and explaining his presence and conduct. If
it appears at trial that the explanation is true
and would have dispelled the alarm or immediate concern,
then the defendant may not be convicted under this
statute."311 So. 2d 104,106.
Thus, if a police officer observes an individual under circumstances
as described above, he may make a lawful arrest. As the Supreme Court
noted in &.A.A., supra:
"If there was evidence of such solicitation, it
should have been charged against her."
Lastly, there is a Florida Statute, Section 877.03 which prohibits
as disorerly conduct "acts as of a nature to corrupt the public morals
or outrage the sense of public decency." This statute was held
unconstitutional by a U.S. Circuit Court, although such a decision
is not binding on the State Circuit Court. See (Jienand v. Seaven
504 F2d 303 (5th Wt. 1974) and State v. Dewyek, 332 So 2d 333 (Ha 1976).
Honorable t•lembers of the
City Commission
April
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Prostitution, Loitering, and
bisorde'rly Conduct
Although §877.03 was recently upheld as applied to topless
bathing in Pio66ett v. State., 340 So 2d 1155 (tfa 1977) it is to be
very narrowly construed.
"For a statute such as that governing disorderly
conduct and breach of the peace, to withstand
attack on grounds of vagueness and overbreadth,
it must be so construed that it is not subject
to unconstitutional interpretation." White v. State
330 So 2d 3 (fita 1976).
Thus, under the present law of Florida there still exist several
statutes by which prostitution may be controlled. What is required
however, is that, the arresting officer have before him facts and
circumstances sufficient to meet the tests set out by the Courts,
II. Control of Vehicular and Pedestrial Traffic
In order to ensure the safe passage of vehicles and pedestrians
in public streets, roads, and sidewalks, there have been enacted
various statutes and ordinances designed to ensure the free and
unobstructed flow of traffic.
Chapter 316 of the Florida Statutes reserves to the State the
power to require uniformity of traffic ordinances throughout the
various counties and municipalities of the State. Thus. it is unlawful
for any municipality to pass or enforce any ordinace in conflict with
Chapter 316. See §316.002; §316.007. This chapter does, however,
charge municipal police officers with the power to enforce these laws
within their jurisdiction. §316.640 (3).
Section 316.130 sets out those regulations particularly applicable
to pedestrian traffic. Section 316.130(5) prohibits any person from
standing in the portion of the road paved for vehicular traffic for
the purpose of soliciting a ride, employment, or business from any
occupant of a vehicle. Further, pedistrians may cross the street
only within crosswalks, at right angles to the curb, or by the shortest
route possible to the opposite curb. Violation of any of these sections
Honorable Members of the
City Commission
April
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Prostitution, Loitering, and
bisorderly Conduct
is a non -criminal infraction punishable by a fine,
It should be noted, however, that if a police officer gives a
lawful order to a person relating to obedience of the traffic laws
and that person fails to obey, then such failure constitutes a
second degree misdemeanor. §316.072. The penalty for such a viola-
tion is a definte terms of imprisionment, not in excess of 60 days.
Chapter 318, Florida Statutes, which decriminalized most traffic
offenses contains a specific exception for the willful failure or
refusal to obey a police officer under §316.072.
Locally, the Dade County Code reserves to the County the power
to make all local traffic ordinances. In Section 30-221, the County
adopted virtually identical language as appears in Chapter 316,
relative to pedestrian traffic. In addition, Sections 30-255 and
30-388.12 make it unlawful to willfully obstruct the free and con-
venient and normal use of any public street, highway or road by
impeding traffic or endangerina the safe movement of vehicles and
pedestrians. Violation of these sections is punishable under
Section 30-208 with penalties up to a fine of $500 and/or 60 days
imprisonment.
Section 21-31.1(b)(1) creates an offense of knowingly loitering
on a public street or sidewalk so as to hinder or impede or tend to
hinder hinder or impede the passage of pedestrians or vehicl.es. This
section carries a penalty for violation of 60 days in jail and/or
a $500 fine.
The language of this loitering statute was also construed in
Cticcu&cCCL v. City o6 Key (ics , 321 So 2d 472 (3d DCA F.Ca 1975)
Here the Third District Courtof Appeals struck down that loitering
ordinance for failure to contain restrictive standards limiting its
application to impediments to passage that threaten public safety
or a breach of the peace.
This decision was re -affirmed in the B.A.A. v. State ruling
issued by the Florida Supreme Court in March, 1978. Thus, for the
impeding of traffic to constitute an offense, the police officer
must find:
Honorable Members of the
City Commission
April
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Prostitution, Loitering, and
Disorderly Conduct
"specific and articulable facts which would
reasonably warrant a finding that the public
peace and order were threatened or that
safety of persons by property was jeopardized."
III. Case Precedents - Vagueness, Overbreath, Etc.
The most serious challenges to penal ordinances is that they
are vague or overbroad. That is, a vague ordinance is defective in
that persons of common intelligence are unable to determine what
conduct is criminal. Similarly, a statute is defective as overbroad
when its language is so sweeping that it prohibits conduct which is
otherwise lawful,
Most recently, a Phoenix, Arizona City Ordinance which created
an offense of loitering based on stopping cars, waving arms, etc.,
was struck down as unconstitutional by the U.S. District Court.
While the Cityof Dallas has a similar ordinance on its books, it is
unenforced. A Detroit City ordinance making it a crime to "accost
for any lewd, immoral act" was held unconstitutional in Monn v.
Ctitu o6 Detno.it, 389 F Supp 922 (E.D. M:i.i.clh 1975) . That decision was
successfully employed in a civil suit against the City of Detroit in
Steponaitis v. City 06 Det`o it, Civil Action No. 76-614-365-cz.
In Gandan v. Schino, 310 F Supp 884 (E.D. La 1970) the U.S. District
Court reviewed a New Orleans City Ordinance relating to obstruction
of free passage on sidewalks. The Court in relying on the U.S.
Supreme Court decision in Shuttfnteo:7th v. city 06 iit.nm-in ham,
382 U.S. 87 (1965), noted that such an ordinance may not be used to
say that persons can be removed from public sidewalks at the whim
of the police. There must be a showing that the person told to
move is blocking free passage. Given that narrow construction, the
Court upheld the ordinance. (See C iccaneCC..L v. Key G1est, ci ted in
Sction II.)
A West Palm Beach loitering ordinance was overturned in United
States v. Kaegen, 431 F2d 627 (5th Ct.n 1970). Here, the Fifth
Circuit Court of Appeals held that where a loitering ordinance draws
Honorable Members of the
City Commission
April 27, 1978
Prostitution, Loitering and
Disorderly Conduct
Page 6
no distinction between conduct which is calculated to cause harm and
conduct which is essentially innocent is defective. That is, terms
of a penal statute must be sufficiently explicit to inform those
who are subject to it what conduct on their part will render them
liable to its penalties.
Various Federal and State Courts have rendered similar decisions
involving Daytona Beach (U.S. District Court), Jacksonville (U.S.
Supreme Court), Columbus, Ohio (State Court), Colorado (U.S. District
Court), Scottsdale, Arizona (U.S. Court of Appeals), and Raleigh,
N.C. (U.S. District Court).
Most recently, the City Attorney of Phoenix, Arizona conducted
an informed survey of loitering and prostitution laws in the major U.S.
Cities. The unanimous trend was movement away from loitering
ordinances with a trend toward stricter enforcement of existing
solicitation and prostitution laws. The Cities surveyed included
New York City, Los Angeles, Las Vegas, San Antonio, New Orleans,
San Diego, Houston, Tuscon, Dallas, Kansas City, Phoenix, Atlanta,
Albequerque, and Salt Lake City.
IV. Pre-emption Doctrine
Permeating this entire area of regulation is the concept of
pre-emption. That is, where the higher soverign has legislated in
a particular area, all subordinate governing bodies are precluded
from regulating that area in the absence of an express grant from
the State. See, In n.e Lane, 372 1' 2d 897 (Cat. 1962).
The Florida Supreme Court in the case of C.ttcs' oS Miami.. Beach
v. FCee.#xvood Ho.te.C, 261 So 2d 801 (FCa 19721, aea1 t at length with
this subject. Nfost specifically, the Court held if reasonable doubt
arises to the existence of municipal power to legislate in a parti-
cular area, that doubt is to be resolved against the municipality.
Thus, in light of the presence of state laws regulating loitering
and prostitution, any further local ordinances may be subject to
challenge on this ground.
Honorable Members of the
City Commission
April 27, 1978
Page 7
Prostitution, Loitering, and
Disorderly Conduct
V. Current Status
This office has been in communication with its counterparts
from the various states in order to tap the knowledge and experience
of other municipal attorneys. In addition, consultations have
been had with the Attorney General's Office and the Office of
Dade State Attorney. The consensus, in light of the recent
Supreme Court pronouncements, it that the existing prostitution
law, coupled with vigorous enforcement is the most valuable
alternative.
So as to not foreclose the possibility of some new legislative
approach, the Law Department is requesting Mr. Tom Coleman,
Director of the Sexual Law Reporter, to act as consultant on this
matter, The Sexual Law Reporter specialized in the compilation of
state and local laws and decisions relative to pornography,
prostitution, etc. In addition, the offices of the National
Institute of Municipal Law Officers (NIMLO) provides similar
information. As their reports become available, it shall be
reported to this Commission.
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