HomeMy WebLinkAbout04-22-2004 Rawlings v. City of Winter SpringsBROWN, SALZMAN, WEISS & GARGANESE, P.A.
A tornee at Law
Usher L. BrownOffices in Orlando, Kissimmee,
Jeffrey P. Buak° Cocoa & Viera
Suzanne D'Agresta°
Anthony A. Garganese° RECISIVEm
Gary S. Salzman*
John H. Ward' n
Jeffrey S. Weiss APR 2 3 2004
'Board Certified Civil Trial Lawyer
°Board, Certified Business Litigation Lawyer
"Board Certified City, County & Local Government Law
Ronald McLemore, City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs, FL 32708
CITY OF citWNRy Manaager RINGS
April 22, 2004
Re: Rawlins v. City of Winter Springs
Case No.: 5D04.765
Our File No.: 315-010
Dear Ron:
Debra S. Babb-Nutcher
Joseph E. Blitch
John U. Biedenharn, Jr.
Lisa M. Fletcher
Douglas Lambert
Katherine Latorre
Michelle A. Reddin
Kimberly F. Whitfield
Erin J. O'Leary
Of Counsel
Enclosed is a copy of the Petitioners' Reply Brief in the above -referenced case.
If you have any questions, do not hesitate to call.
V ly yours,
Anthony A. Garganese
AAG/Img City Attorney
Enclosure
225 East Robinson Street, Suite 660 • P.O. Box 2873.Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566
Website: www.oriandolaw.net • Email: firm@orlandolaw.net
4 1 • I
IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT
STATE OF FLORIDA
Docket No.: 5D04-765
Circuit Court No.: 02-48-AP
SANDRA KOCH RAWLINS and WALTER M. RAWLINS
Petitioners,
VS.
CITY OF WINTER SPRINGS,
Respondent
PETITIONERS' REPLY BRIEF
LAWRENCE G. WALTERS
WESTON, GARROU & DEWITT
Florida Bar No.:776599
781 Douglas Avenue
Altamonte Springs, Florida 32714
(407) 389-4529
(407) 774-6151 (fax)
www.FirstAmendment.com
Attorney for Petitioners RAWLINS
.,QI-YFURNISHED TO: AA
CALENP," Q
TABLE OF CONTENTS
Table of Citations.............................................................................ii
Reply Regarding Standard of Review ...................................................... l
Reply Regarding Respondent's Point I .................................................... l
Reply Regarding Respondent's Point II....................................................7
Reply Regarding Respondent's Point III....................................................9
Reply Regarding Respondent's Point IV.................................................12
Conclusion and Request for Relief........................................................14
Certificate of Service........................................................................14
Certificate of Type Size and Style.........................................................14
F
TABLE OF CITATIONS
CASES
PAGE
Chicagov. Morales.....................................................................11 12
527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)
City of Sarasota v. Calhoun............................................................ l 3
2,
685 So.2d 1338 (Fla. 2d DCA 1996),
rev dismissed, 678 So.2d 1287 (Fla. 1996)
Haines City Cmty' Dev. v. Heggs...........................................................1
658 So.2d 523 (Fla. 1995)
Lawrencev. Texas.........................................................................7, 8
123 S.Ct. 2472, 539 U.S. 558, 156 L.Ed.2d 508 (2003)
-llarks v. United States......................................................................12
430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260
State ter. rel. Helseth v. DuBose.........................................................3, 4
99 Fla. 812, 128 So. 4 (Fla. 1930)
OTHER AUTHORITIES
13 FLA. JUR. Courts & Judges § 179.......................................................4
Seminole County, Fla. Code § 20.19.............................................3, 101 13
Seminole County, Fla. Code § 20.25 ................................................passim
Winter Springs, Fla. Code § 4-1............................................................ 3
Winter Springs, Fla. Code § 20-233........................................................5
III
REPLY REGARDING STANDARD OF REVIEW
While the parties appear to be in agreement that the standard of review is
limited to determining whether the circuit court afforded procedural due process
and whether the circuit court applied the correct law, the parties do not agree as to
the CITY's contention that the determination of whether the circuit court applied
the correct law is synonymous with whether the circuit court complied with the
essential requirements of law. RP 4.1 As set forth further in the initial Petition, the
standard of review is twofold: (1) whether the circuit court afforded procedural
due process, and (2) whether the circuit court applied the correct law. Haines City
Cmty' Dev. v. Heggs, 658 So.2d 523 (Fla. 1995).
REPLY REGARDING RESPONDENT'S POINT I
Respondent CITY OF WINTER SPRINGS, ("CITY"), attempts to dispense
with Petitioners SANDRA KOCH RAWLINS' and WALTER M. RAWLINS',
(collectively "RAWLINS"), overbreadth argument by claiming that the Second
District Court of Appeals decision in City of Sarasota v. Calhoun, 685 So.2d 1338
(Fla. 2d DCA 1996), rev. dismissed, 678 So.2d 1287 (Fla. 1996), controls the result
in this case given its ruling on the constitutionality of a different dog barking
1 References to Respondent's Response to Petition for Writ of Certiorari, filed in
this Court, shall be the letters "RP," followed by the page number(s) of the item
cited.
ordinance.' However, Respondent CITY's argument in this regard reads too much
into the Calhoun decision. Nowhere in the court's opinion is there a reference to
any argument made by Calhoun regarding the First Amendment implications of
animal noise, as part of entertainment such as a circus, a parade, or filming a
family pet. Calhoun, passim. Indeed, the Second Circuit did not feel it necessary
to address such arguments since it based its decision on the issue of standing. Id.
at 1340. In its opinion, the court stated:
Without passing on the question of whether or not this
ordinance prohibits lawful activity; or makes it
unconstitutionally difficult to determine what behavior is
forbidden, it is clear from the facts adduced at trial that
the owners' conduct in allowing the dogs' unrestrained
barking was a violation of the conduct prohibited by the
ordinance even though the ordinance might have been
more narrowly drawn. Id. at 1340.
Thus, the court specifically limited the extent of its holding and specifically
advised that it was not passing on the nature and scope of the activity regulated by
the ordinance. While the court makes a passing reference to the issues of
overbreadth and free speech, no evaluation of these First Amendment claims are
contained in this admittedly narrow holding. Since Petitioners RAWLINS
specifically raised the issue of overbreadth at the trial and appellate levels, and
The Animal Noise Ordinance at issue in Calhoun read: "It shall be unlawful for
any person to keep, harbor or own any dog which, by loud, frequent or habitual
barking, yelping, howling or by constant threat of attacking and biting, shall cause
annoyance to the neighborhood or to people passing upon the streets." Calhoun,
685 So.2d at 1339, n.1.
2
provided illustrative hypothetical situations demonstrating how the subject
ordinance may be applied to restrain protected speech, this Court should pass on
the issues left unresolved by Calhoun and render a decision finding the Seminole
County Animal Noise Ordinance § 20.25,3 Seminole County Code, codified and
incorporated into the City of Winter Springs Code at § 4-1, (hereinafter "Animal
Noise Ordinance"), unconstitutionally overbroad.
Respondent CITY challenges Petitioners RAWLINS to present some
"further proof' of the actual arguments made in the Calhoun case in order for
Petitioners RAWLINS to avoid the allegedly binding effect of the Second
District's decision. RP 9. In light of the specific limitation placed on the holding
expressed by the words of the appellate court itself, no such further proof should be
necessary. Respondent's demand that Petitioners RAWLINS somehow prove that
certain constitutional arguments were not made in order to successfully distinguish
the Second District's opinion is nonsensical and, more importantly, not required.
Initially, no additional evidence can or should be accepted by the Court at this
stage of the proceedings, now that final judgments have been rendered by the trial
and appellate court. Moreover, neither Petitioners RAWLINS, nor this Court, are
bound by issues not actually decided in Calhoun, even if related to the facts of that
case. State ex. rel. Helseth v. DuBose, 99 Fla. 812, 817, 128 So. 4 (Fla. 1930) [no
3 The Ordinance was re -codified at §20.19 prior to the subject Citations.
3
court decision is authority on any question not raised and considered even though
involved with the facts of the case); 13 FLA. JuR. Courts & Judges § 179. Each
constitutional question raised by a litigant must be resolved by the courts
independently, and all constitutional arguments are not magically rendered
unavailable to potential litigants simply because another district court of appeal
passes on limited constitutional questions relating to other ordinances from
different municipalities.
Assuming that Petitioners RAWLINS are entitled to make the overbreadth
argument, Respondent CITY argues that the Animal Noise Ordinance would not
apply to forms of entertainment such as circuses or parades because of the
requirement that the offending animal noise be "repeating" or "objectionable." RP
11-12. Respondent CITY theorizes that animal noises emanating for short periods
of time and heard by a passerby, from animals in a parade or a circus, would not
violate the plain language of the Animal Noise Ordinance. Id. For purposes of
analyzing hypothetical applications of the Animal Noise Ordinance, Respondent
CITY is not in a position to second guess which animal noises might be deemed
"objectionable" to certain Winter Springs police officers. One could readily
envision a scenario where police officers, who did not enjoy, or approve of, animal
captivity or such entertainment in general, might be readily annoyed or offended
4
by virtually any animal noise, but particularly noises that emanated from a herd of
elephants or a pride of lions passing through town.
Respondent CITY attempts to avoid the overbreadth argument by claiming
that the Animal Noise Ordinance must disturb persons "residing in the vicinity,"
which allegedly constitutes a sufficient limitation to satisfy constitutional muster.
RP 12. Therefore, goes the argument, live performances could not disturb Winter
Springs' residents because of various zoning issues that would have to be
overcome before live animal entertainment could occur in or near a residential
zone. RP 12-13. Again, Respondent CITY cannot anticipate future municipal
zoning restrictions that may or may not be in place at some future time, which
might or might not have an impact on the ability to legally present live animal
entertainment in the proximity of certain residents. However, given such zoning
concepts as "grandfathering" and the establishment of "non conforming uses," it is
entirely conceivable that a number of preexisting residences could remain in or
near commercial zones. However, the issue of commercial presentation of animal
noise is not essential to illustrate an appropriate hypothetical, since the Animal
Noise Ordinance does not restrict its broad prohibitions to animal noise conducted
for a commercial purpose. Even a family attempting to create a video clip of their
pet performing for submission to Animal Planet's "The Planet's Funniest
a Winter Springs, Fla., Code § 20-233.
E
AmmalsTM" television show, staged in their backyard or living room, could be
subject to the law's punishments if a disgruntled neighbor or biased police officer
objected. The creation of such media would undoubtedly be protected by the First
Amendment to the United States Constitution, but would also be restricted if an
individual was "disturbed" by the noises generated from the animals participating
in the performance.
Respondent CITY reiterates, "There must be a realistic danger that the
statute itself will significantly compromise recognized First Amendment
protections of parties not before the Court for it to be facially challenged on
overbreadth grounds." RP 11. Petitioners RAWLINS set forth clear hypothetical
situations that would significantly compromise recognized First Amendment
protections, and thus the statute can be challenged on overbreadth grounds. Here,
Respondent CITY did not determine or analyze whether or not substantial
constitutional rights may be compromised; the CITY merely made a blanket
statement that the statute is not overbroad. The CITY cannot require Petitioners
RAWLINS to show how much speech has not occurred in proving that the
ordinance infringes on a "substantial" amount of protected expression. The
constitutionality of an ordinance that impacts First Amendment rights should not
turn on the specific number of individuals who might be affected by the
ordinance's application, since that determination cannot be made by the courts or
I
the parties. Requiring Petitioners RAWLINS to meet some threshold of proving
"substantial" overbreadth by proving how many circuses, parades or other live
animal -oriented entertainment were not presented in the City of Winter Springs
would be impossible, and is not required in the overbreadth analysis. If such were
the applicable test, no law could ever be shown to be overbroad. Therefore, despite
Respondent CITY's valiant attempts to avoid the application of the overbreadth
doctrine, by dissecting Petitioners RAWLINS' hypotheticals and by not offering
further analysis, those attempts must fail and this Court should find the Animal
Noise Ordinance unconstitutionally overbroad on its face.
REPLY REGARDING RESPONDENT'S POINT II
As Respondent CITY correctly points out, the Florida courts have not ruled
on whether the state or federal constitutional Right to Privacy includes a right to be
free from unnecessary governmental intrusion into the keeping of domestic pets.
RP 15. As a matter of first impression, this Court has the honor and distinction to
be the first to recognize the existence of such a right in this unique case.
The constitutional groundwork for such recognition has recently been laid
by the United States Supreme Court in its landmark decision of Lai,vrence v. Texas,
123 S.Ct. 2472, 539 U.S. 558, 156 L.Ed.2d 508. In that case, the Court invalidated
sodomy laws across the country based on a newly -defined fundamental right to
define oneself, and engage in private human conduct in the most private of places;
7
the home. Id. The first two sentences of the opinion should impact this Court's
approach to the instant case:
Liberty protects the person from unwarranted
governmental intrusions into a dwelling or other private
places. In our tradition, the state is not omnipresent in
the home. Id. at 2475.
While Lawrence involved the issue of private sexual behavior, the court's
redefinition of the Right to Privacy should result in a finding by this Court that
such Right to Privacy includes the right to be free from unreasonable governmental
interference with domestic pet keeping. The Lawrence court repeatedly noted that
the government should not attempt to define the meaning of human relationships,
particularly when those relationships occur and are expressed in a private place.
Id. "It suffices for us to acknowledge that adults may choose to enter upon this
relationship in the confines of their homes and their own private lives and still
retain their dignity as free persons." Id. Later, the Court notes: "[The Appellants']
right to liberty under the Due Process clause gives them the full right to engage in
their conduct without intervention of the government. `It is a promise of the
Constitution that there is a realm of personal liberty which the government may not
enter."' Id. at 2484 (citation omitted).
Admittedly, the issue of animal noise does not rise to the magnitude of the
societal disapproval of homosexuality at issue in Lawrence. However, it cannot be
disputed that individuals in this country have meaningful, emotional relationships
D
with their pets. Due Process liberties become endangered when the government is
allowed to punish individuals based on natural noises emanating from their home.
The conscience of this Court would be shocked, and rightly so, if the City of
Winter Springs passed an ordinance punishing parents if their children cried in "an
annoying, repeated and disturbing manner." There is no meaningful distinction
between the noises that can potentially emanate from an animal as compared to
that which comes from an infant. Objectively, the level of annoyance should be
the same, but for the fact that one noise emanates from an animal, and the other
from a human. Pet owners without children may well value their pets similar to
the manner in which parents value their offspring. In either case, the government
has no business unnecessarily interfering in the manner in which either are raised,
or in regulating the sounds emanating from a private dwelling.
REPLY REGARDING RESPONDENT'S POINT III
Respondent CITY argues that Petitioners RAWLINS do not have standing to
mount a vagueness challenge because Petitioners RAWLINS' dogs were "indeed
barking." RP 18. In support of this argument, Respondent CITY claims that
Petitioner SANDRA RAWLINS acknowledged that her dogs were barking.
Apparently, a factual dispute exists regarding the proper inferences to be drawn
from the testimony in this case. Initially. it should be noted that despite opposing
counsel's carefully -chosen words to the contrary, Petitioner SANDRA RAWLINS
9
never testified that her dogs were barking. In fact, Petitioner SANDRA RAWLINS
never testified at all. See: Transcript of Proceedings, Exhibits A and B in
Appendix to CITY's Response. Officer Bill Mayhew acknowledged that he did
not physically see any dogs barking on the date of the alleged violation. See:
Transcript of Proceedings, Exhibit B p. 41 in Appendix to CITY's Response.
Although Office Mayhew claimed that Petitioner SANDRA RAWLINS "told me
that they were her dogs," there is no testimony to indicate that Petitioner SANDRA
RAWLINS admitted that her dogs were barking.
The issue of whether Petitioner SANDRA RAWLINS admitted that her dogs
were barking is of no real consequence in any event, since it is not mere barking
that triggers a violation of the Animal Noise Ordinance. The Animal Noise
Ordinance requires that the animal owner permit an animal to bark in a "continuing
or repeating manner," which must "disturb the comfort, peace, quiet or repose of
any person residing in the vicinity." See: Petitioners' Appendix p. 45, §20.19,
Seminole County Code. Therefore, assuming arguendo that a clear violation of the
subject ordinance prohibits Petitioners RAWLINS from challenging the facial
vagueness of the Animal Noise Ordinance,s the simple fact of dogs barking in this
case does not prevent Petitioners RAWLINS from mounting their vagueness
challenge. Moreover, the standing of each of the Petitioners must be evaluated
' Petitioners RAWLINS do not concede this point.
10
separately. Officer Conley, in the case against Petitioner WALTER RAWLINS,
also testified that he did not actually see any dogs barking. See: Transcript of
Proceedings, Exhibit A p. 47 in Appendix to CITY's Response. Moreover, the
CITY presented no evidence that either Petitioner was in a position to stop the
barking, or that they failed to use due care to prevent the barking. In addition, the
alleged violations were not supported by multiple sworn statements from
neighbors. Given the requirements in the Animal Noise Ordinance that the owner
permit the noise to occur and that three (3) witnesses sign sworn statements stating
that they were offended and that the dogs be physically described before a
violation of the Animal Noise Ordinance can be proved, no clear violation of the
Animal Noise Ordinance has been established against either Petitioner in these
consolidated cases.
In any event, Petitioners RAWLINS stand by their contention made in the
Initial Petition, that in a facial vagueness challenge to an ordinance impacting
constitutional rights, the actions of Petitioners are not relevant, and the Court can
proceed to address the facial vagueness of the statute without regard to whether
Petitioners violated the law. Chicago v. Morales, 527 U.S. 41 (1999), J. Breyer,
concurring. While Petitioners RAWLINS agree that the concurring opinion of one
justice does not constitute the binding opinion of the Court,6 Justice Breyer in the
Morales case merely clarified what the existing law has been since the early
1900's, and did not make new law. Therefore, this Court should proceed to rule on
the merits of the vagueness challenge, without regard to whether Petitioners
RAWLINS' dogs were barking.
REPLY REGARDING RESPONDENT'S POINT IV
As to the merits of the vagueness challenge, Respondent CITY again points
out that "vagueness challenges to laws which do not involve First Amendment
freedoms must be examined in light of the facts of the case at hand." RP 20
(Emphasis added). As demonstrated in the Initial Petition, and in Point I, supra, the
Animal Noise Ordinance does impact First Amendment and other constitutional
rights. Therefore, this Court's analysis should not be limited to the facts of the
case.
Respondent CITY suggests that individuals can obtain guidance as to how to
comply with the Animal Noise Ordinance by using "simple logic and common
sense," or "common understanding and ordinary logic." RP 14 and 21,
respectively. However, one reasonable man's ordinary logic is another's absurdity.
Respondent CITY cannot avoid the application of the facial vagueness doctrine by
6 Unless that single opinion is the narrowest grounds for concurrence under the
Marks Rule. See: Marks v. United States, 430 U.S. 188, 193, 97 S.Ct 990, 993, 51
L.Ed.2d 260 (1977).
12
insisting that reasonable individuals insert some sort of logical tenns, and
supplement the plain language of the Animal Noise Ordinance with common
understanding in order to determine «-hich animal noises are prohibited under the
law, and at what point a pet owner will be held responsible for those animal noises.
Again, it is important to reiterate that not all dog barking is prohibited under the
Animal Noise Ordinance. Only certain types of dog barking should presumably
result in a citation; and only then if the owner acted willfully, or failed to exercise
due care and control to prevent the objectionable or disturbing noises. See:
Petitioners' Appendix p. 45, §20.19, Seminole County Code. Respondent CITY
has provided no compelling reason why the City of Winter Springs could not
regulate animal noise by reference to some objective factors such as decibel limits
or time duration to prevent the arbitrary and capricious application of the law.
Neighbors who have some unrelated problem with each other should not be
permitted to misuse a law such as the Animal Noise Ordinance to further their own
political agenda, and make life miserable for a neighboring pet owner. The
vagueness of the Animal Noise Ordinance is evident on its face, and declaring this
ordinance unconstitutionally vague is consistent with case law interpreting similar
ordinances from around the country.
13
CONCLUSION AND REQUEST FOR RELIEF
WHEREFORE, Petitioners RAWLINS respectfully request that this Court
grant the relief requested in Petitioners RAWLINS' Initial Petition for Writ of
Certiorari.
WESTONOU&-PEWITT
Lawrence G. Walters
Florida Bar No.:776599
781 Douglas Avenue
Altamonte Springs, Florida 32714
(407) 389-4529
(407) 774-6151 (fax)
ti-v14w.Fii•.stAniertdi?ierit.coiri
Attorney for Petitioners RAWLINS
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing has been served by U.S. Mail to
Anthony A. Garganese, Esquire and Erin J. O'Leary, Esquire, Brown Ward
Salsman & Weiss, Two Landmark Center, 225 East Robinson Street, Suite 660,
P.O. Box 2873, Orlando, Florida 32802-2873 this 21" day of April 2004.
e G. Walters
CERTIFICATE OF TYPE SIZE AND STYLE
The type size and style for this Brief is 14 point Tomes -New Roman.
G. Walters
14