Schultz v. StateSchultz v. State
This cause is before us on direct appeal to review the judgments of the County Court of Orange County upholding the constitutionality of
Two issues are presented: first, whether
The defendants were charged by information with possession of gambling paraphernalia
The defendants were associated with Vision Enterprises, Inc., a convention and amusement service company which specialized in theme entertainment for local hotels and corporate association conventions and meetings. At two of the theme shows, entitled “Monte Carlo Night” and “Great Gatsby Night,” party-goers engaged in simulated gambling with play money.
On the evening of May 18, 1977, Vision put on a “Monte Carlo Night” for Union Carbide Corporation and its employees at the Hyatt House Hotel in Osceola County. Orange County Sheriff‘s officers followed a truck from Vision Enterprises’ place of business in Orlando to the Hyatt House, where they watched the truck being loaded with the alleged gambling devices. The officers then followed the truck back into Orange County, where it was stopped and the equipment seized.
The relevant portion of
849.231 Gambling devices; manufacture, sale, purchase or possession unlawful. —
(1) ... [I]t shall be unlawful for any person to manufacture, sell, transport, offer for sale, purchase, own, or have in his possession any roulette wheel or table, faro layout, crap table or layout, chemin de fer table or layout, chuck-a-luck wheel, bird cage such as used for gambling, bolita balls, chips with house markings, or any other device, implement, apparatus, or paraphernalia ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments, excepting ordinary dice and playing cards.
The trial court construed this statute to mean that the items specifically identified in the statute were unlawful per se and instructed the jury that the phrase “ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments” modifies only the terms “or any other device, implement, apparatus or paraphernalia.” We do not agree with the trial court‘s construction, but rather, we find that this phrase also modifies the items expressly enumerated in the statute. With this construction, we hold that
Indisputably, it is within the police power of the State to enact legislation to suppress gambling. Pasternack v. Bennett, 138 Fla. 663, 190 So. 56 (1939); Eccles v. Stone, 134 Fla. 113, 183 So. 628 (1938).
It is equally well established that, when reasonably possible, a statute should be construed in such a manner as to avoid conflict with the Constitution. Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla. 1976); State v. Dinsmore, 308 So.2d 32 (Fla. 1975). A statute is unconstitutionally vague when men of common understanding and intelligence must necessarily guess at its meaning. Zachary v. State, 269 So.2d 669 (Fla. 1972); Aztec Motel, Inc. v. Faircloth, 251 So.2d 849 (Fla. 1971). A statute is overbroad when legal, constitutionally protected activities are criminalized as well as illegal, unprotected activities, or when the Legislature sets a net large enough to catch all possible offenders and leaves it to the courts to step inside and determine who is being lawfully detained and who should be set free. Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); State v. Wershow, 343 So.2d 605 (Fla. 1977).
The construction given
To rule otherwise, would be to hold that the state has the police power to criminalize possession of a simple household tool, i.e., a screwdriver. It does not. It would be an unconstitutional act — in excess of the State‘s police power — to criminalize the simple possession of a screwdriver, just as much as it would be to criminalize the possession of such items as ladies’ hat pins, automobile tire iron kits, et cetera, without first requiring that they first be used as burglary tools. An examination of the burglary tools statute reveals the potential for any number of common household tools to be “illegal” unless the statute is construed, in an appropriate case, such as this, to require that for such a tool to be “illegal“, it must be used as a burglary tool — thus becoming a facet of the burglary, breaking and entering transaction, etc.
Since, when reasonably possible and consistent with legislative intent, we must give preference to a construction which will give effect to the statute over another construction which would defeat it, we hold that the items expressly identified in
Defendants contend that the equipment used at “Monte Carlo Night” and “Great Gatsby Night” was not ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments but, to the contrary, was specifically designed to be different from professional gambling equipment. They assert, and we agree, that whether the equipment was ordinarily or commonly used or designed to be used in the operation of gambling houses or establishments is relevant to the determination of whether the items in question were gambling devices under
Accordingly, we hold that
It is so ordered.
ENGLAND, C.J., and ADKINS, OVERTON, SUNDBERG and HATCHETT, JJ., concur.
BOYD, J., dissents with an opinion.
BOYD, Justice, dissenting.
Since the Legislature may not constitutionally enact a statute which would permit lottery gambling, and since the equipment under consideration here was obviously used for that purpose, I am unable to understand how the construction placed upon the statute by the majority could rest upon sound constitutional grounds.
If the people of Florida consider that such gambling should be permitted by law, the Constitution and statutes should be revised to conform to the public will.