State v. Catalano: The Constitutionality of Florida’s Automobile Noise Statute

State v. Catalano: The Second District Court of Appeal’s Analysis on the Constitutionality of Florida’s Automobile Noise Statute § 316.3045, Fla. Stat.

The Florida Supreme Court recently heard oral arguments on a case out of the Second District Court of Appeal holding the Florida Statute regulating automobile stereo noise unconstitutional. In State v. Catalano, 60 So. 3d 1139 (Fla. 2d DCA 2011), the Second District Court addressed two separate constitutional challenges to § 316.3045, Fla. Stat. (2007) in its opinion affirming the Circuit Court. First, the Court denied the State’s petition for writ of certiorari and held the circuit court did not depart from the essential requirements of law by relying on Easy Way of Lee County v. Lee County to find the “plainly audible” standard unconstitutionally vague and overbroad. Second, the Court held § 316.3045 is an unconstitutional content-based speech restriction because it exempts commercial and political vehicles, but states no compelling governmental interest to justify the disparate treatment.

Vagueness

The Court first addressed the challenge that the “plainly audible” standard in the statute is unconstitutionally vague and overbroad. Specifically, the statute prohibits sound emanating from inside a motor vehicle at a volume that is “plainly audible at a distance of 25 feet or more from the motor vehicle[.]” § 316.3045(1)(a), Fla. Stat. Two Florida District Courts have reviewed the constitutionality of the “plainly audible” standard with conflicting results. The Second District Court in Easy Way held that the “plainly audible” language, as used in a county noise ordinance, was unconstitutionally vague and overbroad. 674 So. 2d at 867. In contrast, the Fifth District Court in Davis v. State, upheld a previous version of § 316.3045 as constitutional against a challenge of being vague and overbroad. 710 So. 2d 635 (Fla. 5th DCA 1998). Regarding Davis, the court noted that § 316.3045 was amended after that decision to reduce the distance of the “plainly audible” standard from one-hundred feet to twenty-five feet. According to the Court, this calls into question whether Davis is applicable to the current version of section 316.3045. Catalano, 60 So. 3d at 1142 n. 2 (citing Cannon v. City of Sarasota, — F. Supp. –, No. 8:09–CV–739–T–33TBM, 2010 WL 962934, at *3 (M.D. Fla. March 16, 2010).

In Catalano, the District Court agreed with the circuit court’s determination that it was bound by Easy Way because the circuit court is located within the Second District. Therefore, the circuit court was required to find the “plainly audible” standard to be unconstitutionally vague and overbroad in accordance with Easy Way. Ultimately, the Court denied the State’s petition for writ of certiorari and certified the issue as a question of great public importance: “Is the ‘plainly audible’ language in section 316.3045 (1)(a), Florida Statutes, unconstitutionally vague, overbroad, arbitrarily enforceable, or impinging on free speech rights?”

Content-Based Speech Restriction

According to Catalano, Section 316.3045 is an unconstitutional content-based restriction on protected speech. Catalano, 60 So. 3d at 1146. The Court first concluded that broadcasting recorded music is speech protected by the First Amendment, citing Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). Next, the Court held § 316.3045 is content-based because it favors commercial and political speech over other messages by allowing those types of speech to be broadcast at a higher volume. Catalano, 60 So. 3d at 1146. As a result, the Court concluded the statute must meet the strictest form of constitutional scrutiny: it must be narrowly tailored to serve a compelling government interest. Id. The Court ultimately decided the State had not provided a compelling government interest being served by exempting commercial and political speech from the requirements of the statute. Id.

he Florida Supreme Court held oral arguments in the case on February 9, 2012, and a decision is forthcoming. Although this case has statewide implications because the Court is deciding the constitutionality of a state statute, it is also important to note that its impact will be felt in many counties and cities across Florida that use a virtually identical standard to enforce local noise ordinances. If the Florida Supreme Court finds § 316.3045 unconstitutional, many local governments will be required to amend its noise ordinance—to change the plainly audible standard or to remove the content based speech restriction—to continue enforcement of its local noise ordinance.