State v. WarrenState v. Warren
Manuel A. Machin, Tampa, for appellees.
ALTENBERND, Judge.
The state appeals an order dismissing an infоrmation charging Kathleen Warren and Thomas Secchiari with keeping a house of ill fame in violation of
We hold that “prostitution” and “lewdness” are not unconstitutionally vague as used in this statute. Although we have substantial doubt concerning the constitutionality of a statute which makes “ill fame” an undefined essential element of a crime, we decline to invalidate this statute because the Florida Supreme Court has repeatedly enforced it. Instead, we expressly declare the validity of
on the 24th day of May, 1988, in the County of Hillsborough and State of Florida, did keep a house of ill fame resorted to [for] the purpose of prostitution or lewdness, contrary to the form of the statute in such cases made and provided, and against the peacе and dignity of the State of Florida.
Both defendants pled not guilty and moved to dismiss the information because of the statute‘s alleged unconstitutional vagueness. From the record, it is unclear what evidence the state intended to introducе to establish a prima facia violation of this statute. A bill of particulars indicates that the state intended to prove that the offense occurred between 3:05 p.m. and 9:05 p.m. on May 24, 1988, and that it took place within a three-mile rаdius of 3023 West Kennedy Boulevard in Tampa, Florida. From comments made by the prosecutor at the hearing on the motion to dismiss, it appears that the defendants were operating a nude dancing establishment at which some dancers made physical contact with the patrons.
A historical perspective of this statute helps explain our holding. In 1868, the Florida Legislature first enacted a statute against keeping “a house of ill fame, resorted to for the purpose of prostitution or lewdness.” Ch. 1637, Sub-Ch. 8, Acts 1868, § 13. The offense was punishable as a misdemeanor. Until 1943, this statute was the primary statute in Florida concerning the crime of prostitution. The statute books typically categorized the crime as an “offense against morality and decency.” Fifth Div., Pt. I, Tit. 2, Ch. VII, Rev. Stat. of Fla. (1892). This offense was created at the same time as the “abominable and detestable crime against nature.” Ch. 1637, Sub-Ch. 8, Acts 1868, § 17. The two offenses were typically organized adjacent to or near one another in the statute books. §§ 2614, 2615, Rev.Stat. of Fla. (1892); §§ 3534, 3535, Gen.Stat. of Fla. (1906); §§ 5424, 5433, Rev.Gen.Stat. of Fla. (1920); §§ 7567, 7576, Comp. Gen. Laws of Fla. (1927).
In King v. State, 17 Fla. 183 (1879), the Florida Supreme Court first approved an information charging this offense. The court concluded that testimony of the establishment‘s reputation for “ill fame” was not only permissible, but also necessary to prove the offense.3See also Atkinson v. Powledge, 123 Fla. 389, 167 So. 4 (1936). In 1938, the court held that the words “prostitution” and “lewdness” each had a meaning so well known that it was not necessary for their meanings to be stated in the information. State ex rel. Libtz v. Coleman, 130 Fla. 410, 177 So. 725 (1937). Four years later, the court affirmed a conviction under the statute and clearly announced that the offense required the state to prove: (1) ill fame of the place in question; (2) its use for prostitution or lewdness; and (3) its maintenance by the defendant. Campbell v. State, 149 Fla. 701, 6 So.2d 828 (1942). In Campbell, the state established ill fame through the testimony of the county sheriff, who stated that he knew the “general reputation of the place” and that “it was bad.” Campbell, 149 Fla. at 701, 6 So.2d at 828.
Soon after Campbell, the legislature enacted a statute which prohibited the keeping of a house of prostitution or lewdness, without reference to its reputation. Ch. 21664, §§ 1-5, Laws of Fla. (1943) (currently
In 1971, the Florida Supreme Court considered the constitutionality of
This statute and others relating to a variety of sex offenses need immediate legislative review and action. We urgently commend this important area of great soсial concern for appropriate remedial legislation.
Despite the “urgency” perceived by the supreme court, the legislature did not amend
In 1981, the supreme court considered a case in which the defendant had been convicted of racketeering based upon his operation of a house of prostitution in violation of
A statute is unconstitutionally void for vagueness if it fails to give a person of ordinary intelligence fair notice of what conduct is forbidden by the statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989, (1954). Criminal statutes must be written with sufficient specificity so that citizens are given fair warning of the offending conduct, and law enforcement officers are prevented from engaging in arbitrary and erratic enforcement activity. Papachristou; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939).
We do not believe that the undefined words, “prostitution” and “lewdness,” in this statute render it unconstitutionally vague. Prostitution is defined as “the giving or receiving of the body for sexual activity for hire.”
The undefined, essential element of “ill fame,” however, presents a more troubling issuе. Because this undefined element distinguishes a misdemeanor from a felony, there is a greater need for the public to have fair notice of the distinction it creates. Not only does the statute fail to provide a definition of ill fame, but there are no standard jury instructions or precedents which attempt to clarify this element.
Since statutes must be so well written as to provide fair notice to ordinary citizens, it is significant that police officers, attorneys, and jurists have difficulty recognizing the essence of “ill fame.”4 When does a police officer have probable cause to believe that a house of prostitution has earned an ill reputation? What proof must the state prеsent to establish a prima facia case of ill fame? The population of most of Florida‘s counties is now so large that a sheriff would have difficulty providing sworn testimony on the general reputation of the houses within his or her jurisdictiоn. Assuming the prosecutor were successful in establishing prima facie proof of ill fame, one finds it hard to envision a defense attorney presenting proof that the defendant is guilty of only the lesser included misdemeanor becausе the defendant‘s house is merely a quiet little bordello with a sterling reputation. Perhaps the statute is intended to create a greater penalty concerning a house that has a long history as a public nuisance.5 Without additional statutory language and specific jury instructions, however, it is difficult to believe that any jury would decide that a house of prostitution or lewdness, whose owner had been arrested for engaging in criminal conduct, had an acceptable reputation.
We would affirm the trial court‘s decision concerning the unconstitutional vagueness of “ill fame” except for the several decisions of the Florida Supreme Court upholding or applying this statute over the last 120 yеars. In light of those cases, it is preferable for us to expressly uphold the validity of the statute and permit the supreme court to review the issue. See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973) (decision of the supreme court shall prevail until overruled by a subsequent decision оf the supreme court).
Repeating the suggestion in Franklin, we encourage the legislature to review this timeworn statute. It may be that the felony provision in Florida‘s Racketeer Influenced and Corrupt Organization Act makes
Reversed and remanded for further proceedings consistent herewith.
FRANK, A.C.J., and PARKER, J., concur.