Opinion
Nos. 96-00304, CONSOLIDATED 96-00926, 96-00955
Opinion filed June 26, 1998.
Appeal from the Circuit Court for Pinellas County; William B. Blackwood, Judge.
Robert A. Butterworth, Attorney General, Tallahassee and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.
Ron Smith, New Port Richey, for Appellees.
The State has challenged the dismissal of three cases in which motorcyclists were issued citations for operating motorcycles while wearing improper helmets. The trial court dismissed each case because it found section 316.211, Florida Statutes (1993), to be unconstitutionally vague. We affirm the trial court's decision to dismiss these cases, but unlike the trial court, we find section 316.211 constitutional. See Cesin v. State, 288 So.2d 473 (Fla. 1974) (holding that the 1971 version of the statute is constitutionally valid). Our basis for affirmance lies in the fact that the motorcyclists were not on notice of that conduct which was illegal — the Department of Highway Safety and Motor Vehicles failed to comply with the statute's command that "[t]he department shall publish lists of protective equipment, and such lists shall be made available by request to all users of such equipment." See § 316.211(5), Fla. Stat. (1993). The only list maintained by the Department is many years out-of-date, and is of no benefit to a motorcyclist who purchases a recently manufactured helmet.
Accordingly, we affirm the trial court's orders of dismissal.
FRANK, A.C.J., BLUE and WHATLEY, JJ., Concur.