Brown v. StateBrown v. State
Urging the unconstitutionality of
The statute under which appellant was tried and convicted provides, in pertinent part:
Except as authorized by this chapter, it is unlawful for any person to sell, purchase, manufacture, or deliver, or to possess with the intent to sell, purchase, manufacture, or deliver, a controlled substance in, on, or within 200 feet of the real property comprising a public housing facility, within 200 feet of the real property comprising a public or private college, university, or other postsecondary educational institution, or within 200 feet of any public park.
(Emphasis added). The statute increases the degree of the offense where the prohibited activity takes place within the specified areas. Thus, appellant‘s sale of cocaine is increased from a second to a first degree felony by virtue of his proximity to a public housing facility. See
Appellant first asserts that the phrase “public housing facility” as used in the statute is unconstitutionally vague. We disagree. The proper standard for testing vagueness under Florida law is whether the language gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The language of the statute must “provide a definite warning of what conduct” is required or prohibited, “measured by common understanding and practice.” Warren v. State, 572 So.2d 1376, 1377 (Fla. 1991) (quoting State v. Bussey, 463 So.2d 1141, 1144 (Fla. 1985)). Based upon dictionary definitions of the individual words, appellant suggests that the average person of common intelligence would interpret the phrase “public housing facility” as including any type of housing where the public is able to reside. In this manner, Brown ignores the fact that the phrase itself has a meaning more narrow than that gleaned from the definitions of its component words. Although the definition of “public housing facility” might not be included in a dictionary, a person of ordinary intelligence should know what was intended by the phrase.
Appellant also maintains that the challenged statute violates the equal protection clause because its distance classification is not rationally related to any legitimate objective. He claims that no ascertainable legislative intent is furthered by the adoption of a distance classification. Again, we disagree. In State v. Burch, 545 So.2d 279 (Fla. 4th DCA 1989), approved, 558 So.2d 1 (Fla. 1990), the court upheld a similar distance classification that increased the penalty for drug activity conducted within 1000 feet of a school. The court noted that the purpose of the statute — to reduce drug use by children — was reasonably served by the creation of a drug-free zone around schools that would be enforced by stiff penalties for drug pushers. It was not fatal to the statute that it could apply to drug activity conducted after school hours or in places within the zone not frequented by children, or between persons not involved in making drugs available to children. Similarly, the statute at issue protects children and other tenants of public housing projects from drug-related crime that is, by all accounts, rampant in such areas. See
Next, appellant argues that the challenged statute violates due process protections because it does not require proof that the defendant had knowledge of his proximity to the prohibited area. He asserts that where no valid malum in se
Lastly, appellant urges that the statute in question is an invalid exercise of the police power because the prohibition against selling drugs within 200 feet of a public housing facility has no conceivable purpose of benefit to the general public. We find no merit in this argument. Florida law provides that prohibitions rooted in the exercise of the police power must relate to public health, morals, safety, or welfare. Failing this, the prohibition will be deemed arbitrary and capricious. Conner v. Cone, 235 So.2d 492 (Fla. 1970). The Burch court found a rational connection between the police power and the Florida statute banning drug sales within 1000 feet of a school, and quoted with approval United States v. Agilar, 612 F. Supp. 889, 890 (S.D.N.Y. 1985): “Congress has a legitimate and powerful interest in protecting school children ... presumably on the assumption that a drug dealer who knew that an enhanced penalty would be imposed is less likely to distribute narcotics near a school.” Burch, 545 So.2d at 284. We believe the statute at issue provides similar protection for children and adult tenants of public housing.
Accordingly, we affirm appellant‘s conviction and sentence except that we herewith strike the one dollar assessment appellant was ordered to pay to First Step of Bay County.
ERVIN and WOLF, JJ., concur.