State v. WallerState v. Waller
The statе seeks a writ of common law certiorari to review an order of the circuit court rendered in an appeal from a county court proceeding. We grant the petition.
On Aрril 13, 1989, at approximately 10 p.m., undercover officers from the Clearwater Police Department went to Sweethearts Lounge. According to the officers, Jamie Lee Waller wаs employed as a dancer at this lounge. She was wearing a Tback bikini. She escorted one of the officers to a chair in a location away from the main seating area and performed a “private lap dance” for several minutes in exchange for five dollars. During this activity, she allegedly simulated sexual intercourse and rubbed various parts of her anatomy against the fully clothed officer‘s genital area.
Ms. Waller was arrested and charged with a violation of
In county court, Ms. Waller filed a motion to dismiss pursuant to
The county court entered a lengthy order granting the motion to dismiss under the analysis in Campbell, Chesebrough, and Egal. It concluded that the defendant‘s alleged conduct at the time, place, and under thе circumstances, could not permit a jury in Pinellas County, applying the then-existing moral and social values, to find the defendant guilty of engaging in lewdness. The county court declined to apply the First Amendment analysis of obscenity announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), because the defendant had not argued that her conduct was a protected art form.
The state appealed that order оf dismissal to the circuit court, which reversed the order and remanded the case to county court with instructions concerning the law applicable to this case. The state is pleased with the order of reversal, but maintains the circuit court departed from the essential requirements of the law because it ordered the county court to use an incomplete dеfinition of “lewdness,” and to apply a First Amendment analysis of obscenity when no First Amendment issue had been presented to the county court.
Ms. Waller has not sought review of the circuit court ordеr. Nevertheless, we note our agreement with the circuit court that the determination of lewdness in this case is not a matter for resolution on a motion to dismiss. There are circumstancеs in which a judge may dismiss such charges. See Campbell, 331 So.2d at 290. In this case, however, the evidence before the trial court on the motion to dismiss did not eliminate a jury question. We do not foreclose the possibility that the trial court could properly dismiss this action at a later stage in these proceedings. We note, however, that this court has expressly affirmed an administrative determination that lap dancing in this same lounge was lewd for purposes of
On the other hand, we conclude that the circuit court erroneously instructed the county court to employ an incorrect definitiоn of “lewdness.” The circuit court explained that Campbell, Chesebrough, and
A brief discussion of the earlier cases is warranted. In Campbell, the defendant was convicted under
In Chesebrough and Egal, each defendant was convicted of а lewd and lascivious act in the presence of a child under
the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity. It is generally used to indicate gross indecency with respect to the sexual relations... .
The words “lewd” and “lascivious” behavior when used in a statute to define an offense has been held to have the same meaning, that is, an unlawful indulgence in lust, eager for sexual indulgence.
In Chesebrough the supreme court relied on an earlier statement in Boles v. State, 158 Fla. 220, 27 So.2d 293 (1946), that “lewd,” “lascivious,” and “indecent” connote “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator.” Chesebrough, 255 So.2d at 677 (quoting Boles v. State, 158 Fla. at 221, 27 So.2d at 294). Egal followed Chesebrough and noted that sinсe the legislature had not defined “lewd and lascivious,” it was the task of the judiciary to apply those words based upon a common understanding. Egal, 469 So.2d at 197.
In Schmitt v. State, 590 So.2d 404 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992), the supreme court reviewed the constitutionality of
The Florida Standard Jury Instructions in Misdemeanor Cases for use in actions involving section 796.07 define “lewdness” with language derived from both the statute and Campbell and Chesebrough. The instructions do not contain any Miller analysis. The state is concerned that the circuit court order may have the effect of invalidating thesе instructions at least in this case.
When the legislature in 1943 defined “lewdness” as “indecent or obscene” for purposes of section 796.07, it did not suggest that it intended a narrower definition than the commоn understanding courts have employed to explain that term as a crime involving the concept of indecency. Although section 796.07 has been amended on several occasiоns, the legislature has continued to define lewdness in terms of either indecency or obscenity. Thus, a jury
The circuit court‘s mandate that the county court apply the analysis of obscenity in Miller is, at best, premature. In Miller, the Supreme Court addressed the constitutionality of a state statute regulating the sale or distribution of obscene matter. In Miller, the allegedly obscene matters were brochures that contained very explicit drawings depicting sexual activity. The Supreme Court recognized that obscene materials could be regulated by the states, but imposed three tests to assure that such regulation wоuld not violate the First Amendment. Those tests require an analysis of: (1) whether an average person, applying contemporary community standards, would find that the material appealеd to the prurient interest; (2) whether the materials depict sexual conduct in a patently offensive way; and (3) whether the work, as a whole, lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615, 37 L.Ed.2d at 431.
The Supreme Court has stated recently that barroom nude dancing “may involve only the barest minimum of protected expression ... that might be entitled to First and Fourteenth Amendment рrotection under some circumstances.” Barnes v. Glen Theatre, Inc., 501 U.S. ___, ___, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504, 511 (1991) (quoting earlier cases). At this point, however, Ms. Waller has yet to maintain that this private lap dance is speech protected by the First Amendment. Not every act that is obscene is also speech. We have expressly rejected an argument that similar dancing in the same lounge was protected by First Amendment for purposes of an administrative hearing in which a liquor license was revoked. Hoskins, 592 So.2d at 1146. We have not been directed to any precedent requiring First Amendment protection for such private activity with one customer on the edge of a dimly lighted room, as compared to dances performed on stage to entertain a group of customers. See generally Erwin S. Barbre, Annotation, Topless or Bottomless Dancing or Similar Conduct as Offense, 49 A.L.R.3d 1084 (1973) (discussing nude dancing as public offense); People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272 (1975) (disсussing standards to determine whether nude dancing is protected expression).
We do not rule out the possibility that Ms. Waller‘s conduct in this case is protected by the First Amendment. If she raises this issue in county court and that court determines the First Amendment applies to these activities, then the circuit court is correct, and the issue of lewdness in this case should be analyzed to include the Miller three-prong test. Such analysis, however, cannot be mandated at this time by the circuit court in its appellate capacity.
Petition for writ of certiorari granted.
FRANK, C.J., and DANAHY, J., concur.