Opinion
No. 80-2283.
March 23, 1982.
Appeal from the Circuit Court, Dade County, Arden M. Siegendorf, David L. Levy and James R. Jorgenson, JJ.
A. John Goshgarian and Howard Hochman, Miami, for petitioners.
Jim Smith, Atty. Gen., for respondent.
Before BARKDULL and BASKIN and DANIEL S. PEARSON, JJ.
The petitioners were charged in the county court with a violation of Ordinance 3-12 of the City of Miami, commonly known as the "B-Girl" ordinance. The matters were consolidated before the trial court for trial and each of the defendants filed or joined in a motion to dismiss, which motion was grounded upon the proposition that Ordinance 3-12 was unconstitutional on its face and unconstitutional in its application as applied to similar employees. The motion to dismiss was denied by the trial court.
The City of Miami Code, Section 3-12 states:
"Employees Not To Mingle With Customers. It shall be unlawful for employees or entertainers in places dispensing alcoholic beverages for consumption on the premises to mingle or fraternize with customers or patrons of such establishment (Code 1947, Section 411; Ord. No. 8426, Section 6)."
The evidence before the trial judge indicated that the three individuals were fraternizing or mingling with patrons of an alcoholic beverage establishment. The trial judge found them guilty of a violation of the ordinance and sentenced them accordingly. They appealed to the circuit court, which appeal resulted in a decision affirming the convictions in the following language:
No evidence was adduced to show how the ordinance was enforced in order to support the charge that the ordinance, as applied, was unconstitutional.
"Affirmed. See City of Miami v. Kayfetz, 92 So.2d 798 (Fla. 1957); City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961)."
Certiorari was filed in this court to review the action of the circuit court, sitting in its appellate capacity. Upon such a petition, it is incumbent on this court to examine the record presented to it to determine if the circuit court exceeded its jurisdiction or departed from the established principles of law. State v. Smith, 118 So.2d 792 (Fla. 1st DCA 1960); Dresner v. City of Tallahassee, 164 So.2d 208 (Fla. 1964); Blacharski v. Watts, 268 So.2d 465 (Fla. 4th DCA 1972); City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980). In State v. Smith, supra, we find the following:
"4-7] Certiorari is a common-law writ which issues in the sound judicial discretion of the court to an inferior court, not to take the place of an appeal, but to cause the entire record of the inferior court to be brought up in order that it may be determined from the face thereof whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of law. Confined to its legitimate scope, the writ may issue within the court's discretion to correct the procedure of courts wherein they have not observed those requirements of the law which are deemed to be essential to the administration of justice. It is important, however, that the court should not broaden or extend the scope of the writ. A judgment void for lack of jurisdiction, or a proceeding characterized by a complete failure to observe essential requirements of law is subject to correction at the discretion of the court vested with the power to issue the writ. Failure to observe the essential requirements of law means failure to accord due process of law within the contemplation of the Constitution, or the commission of an error so fundamental in character as to fatally infect the judgment and render it void. Certiorari is confined to a limited review of the proceedings of an inferior jurisdiction. It is an original action in the sense that the subject matter of the suit or proceedings which it brings before the court are not there reinvestigated, tried and determined upon the merits generally as upon an appeal." [footnotes omitted]
Examining the record in light of these principles, we find the ordinance in question to be constitutionally valid on its face, and we deny the relief sought. The substance of the ordinance was before the Supreme Court in City of Miami v. Kayfetz, 92 So.2d 798 (Fla. 1957), and even though the court declined to rule on the facial invalidity we believe that the ordinance in question adequately apprises an employee of an alcoholic beverage establishment of the proscribed conduct, i.e., the employee is not to mingle or fraternize with patrons. This does not mean that an employee of such an establishment cannot respond to an order placed by a patron for food or beverage; however, it is clear on its face that it proscribes an employee or an entertainer from engaging in conduct with a patron which is social in nature.
The business of distribution of liquor is one which is particularly burdened with public concern, which may be limited and regulated by the State as a privilege. Inman v. City of Miami, 197 So.2d 50 (Fla. 3d DCA 1967). In enacting such regulation, the State is not considering ordinary trades, businesses, occupations or professions. State v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947).
Therefore, for the reasons above stated, the relief sought by the petition for certiorari be and the same is hereby denied.
I think the petitioners' attack on the ordinance on the ground of vagueness is unavailing because of City of Miami v. Kayfetz, 92 So.2d 798 (Fla. 1957). There the Supreme Court, although avowedly not deciding the validity of a substantially similar mingling and fraternizing ordinance in respect to the actual mingler or fraternizer, did decide that the terms "mingle" and "fraternize" are not vague.
The petitioner Pryor was also convicted of violating Section 3-11 of the City of Miami Code, which prohibits an employee in a place dispensing alcoholic beverages from being served beverages paid for by a customer or patron. I would deny certiorari in respect to her challenge to the constitutionality of this ordinance, since I believe this challenge to be foreclosed by City of Miami v. Jiminez, 130 So.2d 109 (Fla. 3d DCA 1961) (holding constitutional a similar predecessor ordinance). Moreover, I do not believe any constitutional right of Pryor is implicated by an ordinance which precludes her from drinking beverages bought by patrons or customers in her place of employment.
Kayfetz rejected an attack by the licensee of the establishment where alcoholic beverages are sold. The court's holding was that in respect to the licensee, who had no constitutional right to have his employees or entertainers mingle or fraternize beyond ordinary conduct in the performance of their duties, the ordinance was constitutional.
I do not share the majority's view "that the ordinance in question adequately apprises an employee of an alcoholic beverage establishment of the proscribed conduct." However, I am bound to follow Kayfetz's conclusion that the ordinance as there narrowed by the court is not vague. Were it not for Kayfetz, the vagueness challenge could not so easily be dismissed.
"The words `mingle' and `fraternize' when read in context with the whole of said ordinance have a clear meaning. It is obvious that they mean something more than the ordinary conduct of an employee or entertainer in the performance of duties usually and generally assigned to employees or legitimate entertainers in such establishments. See People v. King, 1952, 115 Cal.App.2d Supp. 875, 252 P.2d 78, for a discussion of the meaning of the word `mingle' in a similar ordinance." 92 So.2d at 802 (emphasis supplied).
This narrowing construction of the words "mingle" and "fraternize," while, arguendo, avoiding the constitutional difficulty of vagueness, hardly disposes of, and indeed brings into focus, petitioners' distinct and separate claim that the ordinance, as now authoritatively construed, is overbroad in that it reaches and impinges upon speech and conduct protected by the First and Fourteenth Amendments to the United States Constitution. As the majority notes, a business like exchange involving an order placed by a patron for food or beverage is not the type of mingling and fraternizing prohibited by the ordinance as construed. But the problem here is that all other mingling and fraternizing is prohibited. Thus, within the ambit of the ordinance is, for example, all social intercourse, all political dialogue and all interpersonal association beyond the call of duty. In sum, the ordinance as authoritatively construed in Kayfetz criminalizes any speech and conduct except that engaged in by "an employee or entertainer in the performance of duties usually and generally assigned to employees or legitimate entertainers in such establishment." Most assuredly, this construction serves to ban speech and conduct which could be said to affect "adversely . . . the morals of the citizens of [Miami] and its visitors, and is harmful to the general welfare of the community." City of Miami v. Kayfetz, supra, at 802. But banned along with this evil is that which the government has no right to ban, namely, constitutionally protected speech and conduct.
What the majority totally overlooks when it says "that the ordinance in question adequately apprises an employee of an alcoholic beverage establishment of the proscribed conduct" is that while that may meet the objection on vagueness grounds, it does not come close to addressing the objection that included within proscribed conduct is constitutionally protected speech and conduct. Vagueness and overbreadth are not the same things. See, e.g., Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Sawyer v. Sandstrom, 615 F.2d 311, 315 (5th Cir. 1980) ("The objectionable quality of overbreadth . . . does not depend upon absence of fair notice to a criminally accused. . . .").
While the broad power of the states to regulate the sale of liquors conferred by the Twenty-First Amendment may outweigh any First Amendment interest in acts of gross sexuality, California v. La Rue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); compare Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975), or even topless dancing in establishments licensed by the state to serve liquor, New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981), I do not think anyone would suggest that in the name of the Twenty-First Amendment, "a state may ban any protected activity on such premises, no matter how innocuous or, more importantly, how clearly protected," New York State Liquor Authority v. Bellanca, supra, 452 U.S. at 719, 101 S.Ct. at 2602, 69 L.Ed.2d at 362 (Stevens, J., dissenting).
It is axiomatic that where a legislative enactment is susceptible of application to protected speech or conduct, it is constitutionally overbroad and therefore facially invalid. Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Brown v. State, 358 So.2d 16 (Fla. 1978); Spears v. State, 337 So.2d 977 (Fla. 1976); Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980). In this case, as in any other where the claim is overbreadth, it is not necessary that the petitioners show that their speech or conduct could not be regulated by a legislative enactment drawn or construed with the requisite narrow specificity. Gooding v. Wilson, supra. The petitioners are permitted to raise the unconstitutional overbreadth as applied to others, since the vice of legislation which is susceptible of application to constitutionally protected speech or conduct is that
". . . persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a [law] susceptible of application to protected expression." Gooding v. Wilson, supra, 405 U.S. at 521, 92 S.Ct. at 1105, 31 L.Ed.2d at 413.
In other words, if the ordinance would be unconstitutionally overbroad as applied to anybody, the petitioners, no matter what they did, cannot be punished under it. Spears v. State, supra.
"The details of the offense could no more serve to validate [the] ordinance than could the details of an offense charged under an ordinance suspending unconditionally the right of assembly and free speech." Coates v. Cincinnati, supra, 402 U.S. at 616, 91 S.Ct. at 1689, 29 L.Ed.2d at 219.
Even if we accepted the suggestion, see Coates v. Cincinnati, supra (White, J., dissenting) that we look to the conduct actually involved, the total proof in the present case was that the petitioners were observed engaging in conversations of varying lengths (from 1 to 22 minutes) with patrons. None of the conversations were overheard. If the content of the imagined conversations was the solicitation of drinks from patrons, then the petitioners could have been charged and convicted under Section 3-13 of the City of Miami Code, a separate ordinance which expressly prohibits this solicitation. Ironically, it could be argued that such activity does not violate Section 3-12 as narrowed by Kayfetz, since soliciting drinks, while otherwise condemned, might be considered activity "in the performance of duties usually and generally assigned to employees." The very existence of Section 3-11, see n. 4, supra, and Section 3-13, each of which prohibits certain unprotected speech and conduct, illustrates the catchall nature of Section 3-12, the problem with which is that it catches too much.
The separation of legitimate from illegitimate speech and conduct "calls for more sensitive tools than [ Kayfetz] has supplied," see Gooding v. Wilson, supra, 405 U.S. at 528, 92 S.Ct. at 1109. Based upon the Kayfetz authoritative construction, I think we have no choice but to hold that the ordinance in question is unconstitutionally overbroad, to grant certiorari, and to quash the decision of the Circuit Court which affirmed the petitioners' convictions for mingling and fraternizing.