Headley v. State ex rel. Selkowitz, 163 So. 2d 13

Headley v. State ex rel. Selkowitz

163 So. 2d 13 | Fla. Dist. Ct. App. | 1964

Concurrence Opinion

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.

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.) . . .

*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.

Lead Opinion

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.