author: ROTHSTEIN-YOUAKIM, Judge.

text:
    IN RE GUARDIANSHIP OF Leon BLOOM, an incapacitated person.
    James L. Essenson, Petitioner, v. Dorothy B. Bloom; Marshall Bloom; and Robert M. Elliott, as Trustee of the Leon Bloom Revocable Living Trust u/a/d 11/18/1988, as Restated on 10/22/2009, Respondents.
    Case No. 2D16-4994
    District Court of Appeal of Florida, Second District.
    Opinion filed July 27, 2018
    James L. Essenson, Barbara J. Welch, and Matthew J. Kelly, of the Law Firm of James L. Essenson, Sarasota, for Petitioner.
    Allan F. Baily of the Law Offices of Baily & Baily P.A., Sarasota; and Marc J. Soss, Lakewood Ranch, for Respondent Dorothy B. Bloom.
    No appearance for remaining Respondents.
   ROTHSTEIN-YOUAKIM, Judge.

In this certiorari proceeding, Attorney James L. Essenson seeks review of a trial court order granting Dorothy B. Bloom's (Dorothy) motion to compel production of Essenson's billing records in connection with his representation of Marshall Bloom (Marshall) in the underlying proceeding relating to the guardianship, estate, and trust of Leon Bloom (Leon). This court stayed this certiorari proceeding pending the outcome of a related appeal, and Essenson has filed a notice of voluntary dismissal because his petition has become moot in light of subsequent proceedings on remand from that appeal. Before this court stayed the proceeding, however, Dorothy had filed a "motion for attorney's fees and costs on appeal." Consequently, along with his notice of voluntary dismissal, Essenson has also filed a "motion to preclude costs on appeal.

We accept Essenson's notice of voluntary dismissal, dismiss Essenson's petition, and deny Dorothy's motion for appellate attorney's fees without further comment, but we explain why, pursuant to Florida Rule of Appellate Procedure 9.400(a), we strike Dorothy's motion for appellate costs and grant Essenson's motion to preclude the trial court from taxing appellate costs in favor of Dorothy.

Background

This court's opinion in In re Guardianship of Bloom, 227 So.3d 165 (Fla. 2d DCA 2017), details the procedural history of Marshall's and Dorothy's involvement in Leon's guardianship and trust proceedings and, following Leon's death, his probate proceedings. During the pendency of Dorothy's claim for reimbursement from Leon's trust for funds she allegedly had used to care for Leon, Marshall successfully removed the successor trustee of Leon's trust. Based on the successful removal, Marshall sought an award of attorney's fees and asserted three bases for relief. The trial court denied the fee motion but in doing so only addressed two of Marshall's three bases for relief. Marshall's appeal of the order denying fees was the subject of Bloom, 227 So.3d 165.

While that appeal was pending, Dorothy moved to compel Essenson to produce billing records that she claimed were relevant to Marshall's previously denied request for attorney's fees. Essenson objected, arguing, in part, that his billing records were not relevant because the court had denied Marshall's fee motion. He acknowledged, however, that they would become relevant if Marshall's appeal were successful and if the trial court were to determine on remand that he was entitled to fees. Essenson represented that were that to happen, then he would produce the requested billing records without objection. Nonetheless, the court granted Dorothy's motion to compel and ordered Essenson to produce his billing records, as redacted for attorney-client and work-product privileges. Essenson timely sought certiorari review.

In his petition, Essenson contends that the trial court departed from the essential requirements of law by compelling production of billing records that were not relevant to anything in the proceeding in light of that court's determination that Marshall was not entitled to an award of attorney's fees. Essenson acknowledged, however, that if this court reversed the trial court's determination on entitlement and if the trial court ultimately determined that Marshall was entitled to fees, this certiorari proceeding would become moot, and he again represented that, in such a case, he would willingly produce the records that Dorothy had requested. Accordingly, this court stayed this certiorari proceeding pending the outcome of Marshall's appeal of the order denying entitlement to fees.

Thereafter, in Bloom, 227 So.3d at 170, this court remanded for the trial court to consider Marshall's previously overlooked third basis for fees, and we continued the stay of this certiorari proceeding. On remand, the trial court determined that Marshall was entitled to attorney's fees.

As promised, Essenson acknowledges that his billing records are now relevant, and he has filed a notice of voluntary dismissal of his certiorari petition as moot. But pursuant to rule 9.400(a), he also moves for this court to preclude the trial court from awarding Dorothy costs related to the certiorari proceeding. Dorothy opposes the motion.

Discussion

Essenson argues that we should preclude the trial court from granting Dorothy her costs in this proceeding because the mootness of his petition did not resolve whether the trial court had departed from the essential requirements of law in compelling the production of documents that, at the time that it ordered the production, were irrelevant in light of that court's prior determination that Marshall was not entitled to attorney's fees. Acknowledging that appellate costs are to be awarded to the party prevailing in the proceeding in this court, Essenson argues that the only reason Dorothy prevailed in this court is because this court stayed his certiorari proceeding and allowed his petition to become moot.

Generally, if a party to an appeal files a motion in this court for an award of costs on appeal, this court will strike the motion because such costs are properly sought in the first instance in the trial court. See Superior Prot., Inc. v. Martinez, 930 So.2d 859, 860 (Fla. 2d DCA 2006) (" 'Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.' Thus, the motion for appellate costs cannot be filed in the district court but must be filed in the lower tribunal after jurisdiction has been returned to that body by our mandate." (quoting Fla. R. App. P. 9.400(a) (2006) ) ). The trial court determines who prevailed on appeal-as opposed to who prevailed in the underlying litigation-and then awards appellate costs upon proof by the prevailing party. See Fla. Power & Light Co. v. Polackwich, 705 So.2d 23, 25 (Fla. 2d DCA 1997) ("[T]he trial court must determine which party prevailed on the significant issues on appeal, not at trial."). Although "[a] trial court's decision on issues involved in a motion to tax appellate costs is largely discretionary," id. (citing Gen. Capital Corp. v. Tel Serv. Co., 239 So.2d 134 (Fla. 2d DCA 1970) ), it must tax those costs in favor of the prevailing party upon a timely motion "unless the [district] court orders otherwise," Fla. R. App. P. 9.400(a). See also Perez v. Fay, 198 So.3d 681, 683 (Fla. 2d DCA 2015) (noting generally that "[t]he circuit court does not have discretion to refuse to award appellate costs when the appellate court has not ordered that costs be denied"); Polackwich, 705 So.2d at 25 n.1 (noting in dicta that "[i]n a very unusual case, an appellee who received an unfavorable outcome in a district court might file a motion for rehearing requesting that the costs either not be taxed or that taxation be deferred to a later time in the case" but explaining that no such motion had been filed); Am. Med. Int'l, Inc. v. Scheller, 484 So.2d 593, 594 (Fla. 4th DCA 1985) ("[T]he district court of appeal-this court-must order otherwise in order for a trial court to refuse to tax costs in the named categories.").

In his "motion to preclude costs on appeal," Essenson requests that this court "order[ ] otherwise." And although the rule clearly states that we may do so, there is little authority addressing how a party should request such an order and the circumstances in which a district court might issue one. Accordingly, we discuss both below.

As an initial matter, we conclude that Essenson properly moved for an order precluding costs before Dorothy even served her motion for costs in the trial court following disposition of this certiorari proceeding. We address the timing of Essenson's motion because we can infer from previous decisions no consistent position regarding when a district court can consider whether to "order[ ] otherwise." Compare Spector v. Spector, 226 So.3d 256, 262 (Fla. 4th DCA) (suggesting that the district court could consider whether to preclude costs before the prevailing party moved for costs in the trial court when it explained, "unless we specifically state otherwise, our denial of a motion to tax appellate costs filed in this court is presumed to be without prejudice to refile the motion in the circuit court"), review denied, No. SC17-1085, 2017 WL 5247737 (Fla. Nov. 13, 2017), with Okeelanta Corp. v. Bygrave, 727 So.2d 950, 951 (Fla. 4th DCA 1997) (suggesting that a request for order disallowing costs should be made in conjunction with motion seeking review of trial court's order taxing costs pursuant to rule 9.400(c) because "[t]he first time we have the opportunity to address the taxation of costs is by motion for review of the order taxing appellate costs, as the motion for assessment of such costs is made to the trial court, not the appellate court" (citing Stearman v. Intergraph Corp., 585 So.2d 466, 467 (Fla. 2d DCA 1991) ) ).

The notion that we may preclude costs before a party even moves for costs in the trial court, however, is consistent with dicta in Polackwich, 705 So.2d at 25 n.1, contemplating that "an appellee who received an unfavorable outcome in a district court might file a motion for rehearing requesting that the costs either not be taxed or that taxation be deferred to a later time in the case." Essenson's motion to preclude costs, which accompanied his notice of voluntary dismissal acknowledging the mootness of his certiorari petition, is akin to such a request on rehearing. Thus, consistently with Spector and Polackwich, we hold that we can consider Essenson's motion at this juncture; we need not wait for him to seek review of a trial court order taxing costs under rule 9.400(c).

With Essenson's motion properly before us, we must determine what we should consider in deciding whether to preclude the trial court from taxing costs in favor of Dorothy. The Fourth District has interpreted rule 9.400(a) to grant a district court the discretion to order that costs not be taxed immediately but rather deferred to the end of the litigation. See Okeelanta, 727 So.2d at 951 ("[B]ecause it has not been established which members of the class might ultimately be liable for these costs, we reverse the order [taxing costs] and direct that it be deferred until the conclusion of the case."). Then-Judge Pariente would have "adopt[ed] a broader interpretation of [the court's] discretion" and would have ordered that the award of costs be conditioned on ultimately prevailing in the underlying litigation. Id. at 951-52 (Pariente, J., concurring specially); see also Stringer v. Katzell, 695 So.2d 369, 370 (Fla. 4th DCA 1997) (Pariente, J., dissenting) ("[T]he language 'unless the court orders otherwise' vests discretion in the court to award appellate costs conditioned upon the party's ultimately prevailing at the conclusion of the litigation.").

In light of the absence of limiting language in the rule, we agree with then-Judge Pariente that that discretion is broader than merely as to timing, but we do think that that discretion must be informed by the purpose of the rule itself, which is to tax costs in favor of the party that prevailed on the significant issues litigated on appeal, see N. Am. Van Lines, Inc. v. Ferguson Transp., Inc., 662 So.2d 1275, 1276 (Fla. 4th DCA 1995). We also think it should be exercised only in exceptional circumstances when presented with "a very unusual case." Cf. Polackwich, 705 So.2d at 25 n.1 (giving an example of "a very unusual case" in which a district court might order that costs not be taxed or that taxation be deferred to a later time).

The rule itself provides no guidance for this court's exercise of its discretion, but the first part of the rule vests in the trial court the responsibility for determining in the first instance who prevailed on the significant issues in this appellate proceeding. See id. at 25. As the phrase "unless the court orders otherwise" merely provides an exception to awarding costs to the prevailing party, we think that our exercise of discretion to preclude such an award cannot be predicated upon deciding ourselves who qualifies as the "prevailing party"; such an analysis would invade the province of the trial court. Instead, this court must predicate its analysis on the assumption that the trial court would have determined that the party opposing the motion to preclude costs is the prevailing party, and each case will require this court to examine factors external to that determination. For example, if directed to whether appellate costs should be taxed at all rather than when they should be taxed, we think the analysis might focus on why that party would be determined to have prevailed on the significant issues litigated on appeal.

In this case, Dorothy would be the prevailing party only by virtue of Essenson's voluntary dismissal, which Essenson filed in light of the outcome of Marshall's related appeal and the trial court's decision on remand, because but for our having stayed this proceeding-specifically pending the outcome of those proceedings-we would have granted Essenson's petition. See, e.g., Eagle FL VI SPE, LLC v. Cypress Creek Plaza, LLC, 128 So.3d 950, 952 (Fla. 2d DCA 2013) ("The trial court's order departs from the essential requirements of the law because it compels extensive discovery when there is no pending claim or defense."); Tampa Pipeline Corp. v. CF Indus., Inc., 693 So.2d 580, 582 (Fla. 2d DCA 1997) (recognizing generally that production of irrelevant materials does not necessarily cause irreparable harm but general rule will not "prevent appropriate curtailing of overbroad discovery orders entitling a party carte blanche to discovery which has been affirmatively established to be irrelevant, or which will not lead to the discovery of relevant information" (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla. 1995) ). And, as a third-party to the underlying litigation, Essenson had no choice but to seek certiorari review; he could not wait for a negative outcome in Marshall's appeal before challenging the discovery order. See Rappaport v. Mercantile Bank, 17 So.3d 902, 905 (Fla. 2d DCA 2009) (citing Price v. Hannahs, 954 So.2d 97, 100 (Fla. 2d DCA 2007) ).

Given the circumstances in which this proceeding arose and the external-though-related proceedings that were integral to our sua sponte decision to stay this proceeding and that, in turn, resulted ultimately in the mootness upon which Dorothy's presumed status as the prevailing party necessarily would have to be based, we conclude that this is one of the rare and exceptional circumstances that warrants exercising our discretion to preclude any subsequent award of costs to Dorothy as the prevailing party. Therefore, we preclude the trial court from awarding Dorothy costs that she incurred in this certiorari proceeding.

Conclusion

Based on the foregoing, we accept Essenson's notice of voluntary dismissal, dismiss Essenson's petition, deny Dorothy's motion for appellate attorney's fees, strike Dorothy's motion for appellate costs, grant Essenson's motion to preclude costs, and order that the trial court shall not award Dorothy appellate costs related to this certiorari proceeding.

SALARIO, J., Concurs.

KHOUZAM, J., Concurs specially.

KHOUZAM, J., Concurring specially.

I agree with the majority's conclusion to strike Dorothy Bloom's motion for appellate costs and to grant James Essenson's motion to preclude the trial court from awarding her appellate costs in this proceeding. I write only to explain that but for Dorothy's action in filing her premature motion to compel, which was erroneously granted by the trial court, Essenson would not have filed his petition for writ of certiorari with our court. And but for our court's issuance of a stay on the writ of certiorari, Essenson would have been the prevailing party, as there was no basis for the trial court to grant Dorothy's motion to compel the billing records where there was a denial of entitlement to fees. For these reasons, I concur with the decision reached by the majority.

      Dorothy is Leon's wife, and Marshall is Leon's nephew.

      For purposes of this opinion, the terms "appellate" and "appeals" include original proceedings in this court.

      Stearman only concerned the proposition that the party seeking costs must first apply below; it did not concern a party who opposed costs seeking an order from this court precluding costs. Stearman, 585 So.2d at 467-68. This court and others routinely strike motions for appellate costs filed in this court at the first instance. See, e.g., B.K. v. S.D.C., 122 So.3d 980, 983 (Fla. 2d DCA 2013) ("We strike the motion for costs without prejudice to S.D.C. filing a motion in the circuit court in accordance with Florida Rule of Appellate Procedure 9.400(a)."); Garcia v. Collazo, 178 So.3d 429, 430 (Fla. 3d DCA 2015) ("[W]e strike Collazo's request for costs on appeal, which she first filed in this Court, without prejudice to Collazo's right to file a timely motion pursuant to rule 9.400(a) in the circuit court ....").

      In making such an assumption, we do not actually decide whether Dorothy was the prevailing party. That is a decision for the trial court to make in the first instance, and one that this court would subsequently review pursuant to rule 9.400(c).

      Interestingly, and though contrary to Rappaport and other opinions from this court, the First District and Third District have suggested that orders compelling nonparties to produce discovery are final, appealable orders because a decision on the discovery issue concludes judicial labor between the nonparty and the parties to the underlying litigation. See, e.g., United Servs. Auto. Ass'n v. Law Offices of Herssein & Herssein, P.A., 233 So.3d 1224, 1230 n. 6 (Fla. 3d DCA 2017) ; Fla. House of Representatives v. Expedia, Inc., 85 So.3d 517, 520-21 (Fla. 1st DCA 2012). Regardless, the posture in which Essenson sought review does not affect the ultimate disposition of either this proceeding, see Fla. R. App. P. 9.040(c), or Essenson's motion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Malcolm GAINEY, Appellant, v. WASHINGTON COUNTY, Florida, Appellee.
    No. 1D16-2499
    District Court of Appeal of Florida, First District.
    August 1, 2018
    Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for Appellant.
    Margaret Philips Zabijaka and Jack R. Wallace of Constangy, Brooks, Smith & Prophete, LLP, Jacksonville, for Appellee.
    ON MOTION FOR CLARIFICATION
   Per Curiam.

We grant Appellee's motion for clarification, withdraw our previously-issued opinion and substitute the following revised opinion.

Malcolm Gainey was a systems administrator for Washington County from 2002 until his position was eliminated by a 3-2 vote of the county commission in September 2013, in the midst of budgetary difficulties. Gainey was involved in an ongoing dispute with County Commissioner, Lynn Gothard. He complained about indecorous and increasingly improper treatment by Gothard, whom he believed wanted to get him fired, in part, due to his relationship with two male commissioners on the five member body. Gainey filed a written complaint with the county, which outlined the conflict between him and Commissioner Gothard, including the remarks about his job performance, his gender, and his unwillingness to comply with her request to look further into live-streaming county commission meetings.

Gainey sued, claiming a Florida whistleblower violation against the county for its retaliatory action against him after his disclosure of Gothard's behavior. After discovery was complete, the county moved for summary judgment, which the trial court granted in its favor, finding that Gainey failed to establish a causal connection between his dismissal and his whistleblower report and that the commission's action was supported by a legitimate, non-retaliatory reason, that being the county's budgetary problems.

On appeal, no dispute exists that Gainey engaged in a protected activity and that he "suffered an adverse employment action," which are the first two parts of the three-part whistleblower test.

Florida Dep't. of Children and Families v. Shapiro , 68 So.3d 298, 305-06 (Fla. 4th DCA 2011). The third part of the test is whether a causal relationship existed between Gainey's protected activity and his termination. This is in dispute. Gainey's termination occurred in reasonable temporal proximity to the time where evidence existed that the commissioners may have become aware of the whistleblower complaint. Such evidence appears to be sufficient to allow a jury to make the determination of causation. Id at 306.

Gainey thus presented a prima facie case, for which the commission could avoid liability by showing a legitimate, nondiscriminatory reason for elimination of Gainey's position. The county claimed that Gainey's termination was due solely to budgetary problems, which is a legally sufficient justification, shifting to Gainey the responsibility of presenting evidence that those problems were pre-textual. The record, however, contains sufficient evidence from which a jury may determine that the elimination of Gainey's job was pre-textual. For instance, after Gainey was terminated, the majority voted to deny him the full amount of accrued annual and sick leave when the prior common practice had been to approve full payment. In addition, remarks were made to an outside company that Gainey was being forced to retire rather than that his position was being eliminated for budget concerns. Other evidence concerning the actual seriousness of the budget crisis was presented, including alternative proposals from the budget committee which would not have eliminated Gainey's position. Gainey presented evidence sufficient to permit a jury to disbelieve the proffered explanations, making summary judgment inappropriate because "issues of fact and sufficiency of evidence are properly reserved for the jury." Combs v. Plantation Patterns , 106 F.3d 1519, 1530 (11th Cir. 1997) ; see also Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1362-63, n.2 (11th Cir. 1999) (a jury can reasonably infer discriminatory animus from circumstantial evidence).

Because Gainey established a prima facie case and produced evidence of pretext that may rebut the County's claim that his position was eliminated for budgetary reasons, summary judgment was improper.

We affirm, without comment, the trial court's award to Appellee of attorney fees and costs associated with the Motion for Protective Order.

AFFIRMED in part, REVERSED in part.

Wolf, Makar, and M.K. Thomas, JJ., concur.


author: EDWARDS, J. SAWAYA, J., dissenting.

text:
    Racheal GOULD, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-684
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 3, 2018
    James S. Purdy, Public Defender, Sean Kevin Gravel, and Robert E Wildridge, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   EDWARDS, J.

Appellant, Racheal Gould, appeals her convictions for conspiring to traffic and trafficking in twenty-eight grams or more of cocaine. She argues that the court erred by (1) denying her motion for judgment of acquittal as there was insufficient evidence of a conspiracy and (2) allowing speculative testimony from a police officer that interpreted and explained her actions as consistent with the behavior of others involved in drug deals. Gould also described several events that occurred during her jury trial, which she claims constitute ineffective assistance of counsel that led to her conviction. Gould properly conceded that it would be more appropriate to raise her claims of ineffective assistance of counsel in a rule 3.850 motion; therefore, we will not rule on those issues. We affirm the admission of the police officer's testimony without further discussion. For the reasons set forth below, we reverse the conspiracy conviction.

The evidence presented at trial, which included Gould's testimony, showed that her boyfriend, without any involvement on her part, had previously sold relatively small amounts of cocaine to a police confidential informant ("CI"). For the instant transaction, the boyfriend made arrangements with the CI for the sale of a larger amount of cocaine-one ounce-to take place in the parking lot of a shopping center. Gould's boyfriend came to her house and insisted that she drive him to the store in his car, even though her own car was available and fully operational. The CI, as agreed between the CI and the boyfriend, was parked in the lot in an easily recognizable, customized Hummer. Upon arriving at the shopping center, Gould circled the parking lot, drove by the Hummer twice, exited the lot, and then returned to circle again. Gould then stopped the car several empty spaces down from the Hummer, after which her boyfriend got out of the car and went to the Hummer. Gould, now alone in the car, moved the car further away from the Hummer, but where it was still within her line of sight. As she sat in the car, Gould appeared to be looking intently at the Hummer while also repeatedly scanning the surrounding parking lot.

All of Gould's actions in the parking lot were observed by police officers who were surveilling the scene, and were parked directly beside Gould. The boyfriend was arrested after he completed the transaction with the CI. Gould was arrested immediately afterwards. The police searched the boyfriend's car and found (1) cash in the front passenger door pocket, (2) the boyfriend's cell phone in the console, (3) the boyfriend's backpack with his wallet in the back seat, (4) Gould's purse which contained no contraband, and (5) a paper bag from Burger King containing sixty-eight grams of cocaine in the front passenger floor space. Gould and her boyfriend were placed in the back of a patrol car equipped with a microphone during which Gould answered the boyfriend's question in the negative, as to whether she had any of "that shit" on her or in her purse.

In addition to an objective description of Gould's activities in the parking lot, one of the police officer's testified that Gould's behaviors were similar to and consistent with what he described as counter-surveillance activity that he had repeatedly observed in many other drug deals. The officer explained further that with a large drug sale, such as this, the drug dealer would often bring an associate to serve as another set of eyes to watch out for police or efforts by the buyer's associates to rip-off the dealer. The officer testified that he watched Gould during and after the boyfriend's transaction and arrest, and she did not appear to make any effort to hide anything within the car.

There was evidence presented at trial that could support Gould's guilt as a principal for the sale of cocaine, as her actions were clearly consistent with aiding and abetting her boyfriend in carrying out this transaction. However, defense counsel did not move for a judgment of acquittal regarding the trafficking charge, generally nor specifically, as to the apparent lack of proof that Gould had the intent to assist her boyfriend in possessing, selling or transferring the amount of cocaine required to support the trafficking charge. Gould's testimony was that she was completely unaware of her boyfriend's intention to sell cocaine and that she had no idea that the Burger King bag contained cocaine, much less knowledge that it contained the additional sixty-eight grams of cocaine. Trial counsel's failure to make this motion or otherwise raise those issues below prevents our review here, but forms the basis of one of her claims for ineffective assistance of counsel which she may raise later in a rule 3.850 motion.

As to the conspiracy charge, Gould's counsel did move for judgment of acquittal, specifically arguing that there was no evidence that she had the intent or reached any agreement to possess, supply, or sell cocaine. "A conspiracy is an express or implied agreement or understanding between two or more persons to commit a criminal offense." Sheriff v. State , 780 So.2d 920, 921 (Fla. 4th DCA 2001). "To prove the crime of conspiracy, the state must prove an agreement and an intention to commit an offense." Id.

The first conspiracy element required the State to prove there was an agreement between Gould and her boyfriend to commit an offense. The offense in this case was trafficking cocaine, which requires a person to "knowingly sell[ ], purchase[ ], manufacture[ ], deliver[ ], or bring[ ] into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine ...." § 893.135(1)(b)1., Fla. Stat. (2017). Thus, the State was required to prove that Gould and her boyfriend agreed to traffic in at least twenty-eight grams of cocaine. At trial, the State did present sufficient evidence to prove an agreement to sell twenty-eight grams of cocaine-but that agreement was only between her boyfriend and the CI. The State did not present any evidence to indicate that Gould participated in the planning of this drug deal. In fact, the CI specifically said he had never seen nor communicated with Gould before. The only evidence relevant to Gould's participation were her actions of providing transportation and counter-surveillance as well as the paper bag containing cocaine in her boyfriend's side of the car.

While that evidence may be sufficient for a conviction of trafficking based on aiding and abetting her boyfriend, it is insufficient to prove a prior agreement or that Gould participated either expressly or impliedly in any preplanning. See Rodriquez v. State , 643 So.2d 111, 111 (Fla. 2d DCA 1994) (holding that evidence of defendant's actions as driver and knowledge of drug deal were insufficient to prove conspiracy); Gray v. State , 526 So.2d 1020, 1021 (Fla. 5th DCA 1988) (holding there was no conspiracy when there "was no proof of any prearrangement, any prior discussions or plans or anything else done in preparation"); Ashenoff v. State , 391 So.2d 289, 291 (Fla. 3d DCA 1980) (holding that, while acts may present a prima facie case of aiding and abetting, they do not constitute conspiracy where there is no showing of both an agreement and an intent to commit offense). See also McCants v. State , 587 So.2d 673, 673 (Fla. 1st DCA 1991) ("Although such proof [of conspiracy] may sometimes encompass circumstantial evidence, a conspiracy may not be inferred solely from conduct which merely aids and abets an offense.").

Without proof that Gould participated in the planning of any aspect of this transaction, there is insufficient evidence to prove an agreement existed between Gould and the boyfriend to traffic in twenty-eight grams of cocaine. Without the presence of an agreement, there can be no conspiracy. See, e.g. , Sheriff , 780 So.2d at 922 (reversing conviction for conspiracy when state failed to prove essential elements); Gray , 526 So.2d at 1021 (reversing conviction for conspiracy when there was no proof the defendant conspired). Because of this finding, we do not need to consider whether Gould had the intent to commit a substantive offense.

Given the lack of evidence of any agreement on Gould's part, the lower court erred in denying her motion for judgment of acquittal. Accordingly, we reverse her conviction for conspiracy to traffic cocaine and instruct the trial court to resentence Gould based upon an updated scoresheet. We affirm as to all remaining issues without prejudice to Gould asserting claims of ineffective assistance of counsel in a timely rule 3.850 motion.

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

ORFINGER, J., concurs.

SAWAYA, J., dissents with opinion.

SAWAYA, J., dissenting.

I believe that the State presented competent, substantial evidence to support the jury verdict of guilty regarding the charge of conspiracy to traffic in cocaine and that the trial court did not err in denying Gould's motion for judgment of acquittal. I, therefore, respectfully dissent.

      See Fernandez v. State , 199 So.3d 500, 502 (Fla. 2d DCA 2016) ("In general, when the vacation of a conviction would result in changes to the defendant's scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet.").


author: CRENSHAW, Judge.

text:
    PROFESSIONAL GOLF GLOBAL GROUP, LLC and Lynn Van Archibald, Appellants, v. Ann HUYNH, Appellee.
    Case No. 2D17-4602
    District Court of Appeal of Florida, Second District.
    Opinion filed August 3, 2018
    Jesse L. Ray and Elizabeth M. Fernandez of Jesse Lee Ray Attorney at Law, P.A., Tampa (withdrew after briefing), for Appellants.
    Lynn Van Archibald, pro se.
    No appearance for Appellant Professional Golf Global Group, LLC.
    Brendan R. Riley of Riley Law Group New Port Richey, for Appellee.
   CRENSHAW, Judge.

Professional Golf Global Group, LLC ("PGGG") and Lynn Van Archibald ("Archibald") appeal the trial court's nonfinal order denying their motion to set aside the judicial default and default final judgment filed under Florida Rule of Civil Procedure 1.540(b). We have jurisdiction. See Fla. R. App. P. 9.130(a)(5). Because PGGG and Archibald established excusable neglect, raised meritorious defenses, and acted with due diligence, we reverse.

On June 23, 2017, Archibald was served with the summons and complaint in his individual capacity and as an officer of PGGG. The two count complaint seeks damages for breach of contract (count I) and money lent (count II). The complaint alleges that: Ann Huynh ("Huynh") lent Archibald $70,000 for the purpose of operating and making improvements to PGGG, a golf course; PGGG and Archibald breached the contract by failing to pay the debt; and PGGG and Archibald are jointly and severally liable for the $70,000.

On July 11, 2017, prior to the expiration of the twenty-day period in which PGGG and Archibald had to file their response, Archibald sent a letter to Huynh and her counsel advising that he was seeking counsel to represent both parties and that he needed additional time to respond to the complaint. The letter was also mailed to the court and docketed on July 13, 2017, the day the responses were due.

That same day, July 13, 2017, Huynh filed a motion for clerk's default, which was denied. On Tuesday, July 18, 2017, Huynh filed her motion for judicial default and mailed a copy to PGGG and Archibald. The motion for judicial default misstated that the date for PGGG and Archibald to respond was July 9, 2017, and did not mention the letter sent by Archibald requesting more time to respond to the complaint. The order granting the motion for judicial default was rendered Friday, July 28, 2017, and a copy was mailed to PGGG and Archibald.

On Tuesday, August 1, 2017, Huynh filed her motion for default final judgment and mailed a copy to PGGG and Archibald. The order granting the default final judgment was rendered on August 8, 2017. A copy was mailed to PGGG and Archibald.

Counsel for PGGG and Archibald filed their notice of appearance the following Friday, August 18, 2017. On Tuesday, August 22, 2017, counsel filed the motion to vacate default and default final judgment. The motion was initially unsworn; however, the trial court allowed PGGG and Archibald additional time to prepare and file an affidavit in support of their motion. The affidavit in support of the motion to vacate provided that PGGG and Archibald had been served with two lawsuits and an action for receivership, all around the same time. Archibald had contacted an attorney to represent PGGG and himself, but after Archibald received notice of the other lawsuits, and discussed them with the attorney, the attorney determined that he was unable to represent PGGG and Archibald. Archibald was looking for another attorney and had not yet retained an attorney when the responses in this case were due. Accordingly, Archibald wrote the letter to Huynh's attorney and to the court advising that he was looking to retain an attorney and needed more time to file a response to the complaint.

The affidavit also raised a number of defenses to the complaint. Specifically, the affidavit stated that the agreement between the parties was never intended to be a loan and that Huynh never loaned PGGG or Archibald $70,000. The affidavit also stated that according to the terms of the agreement, lack of payment was not a breach of the agreement. Finally, the affidavit provided that Huynh breached the agreement first by failing to move out of a residence on the property, as required by the agreement. PGGG and Archibald also raised legal defenses in their motion to vacate, including that PGGG did not sign the agreement and was not a party to the agreement. After a hearing, the trial court denied the motion to set aside the default and the final default judgment.

It is well settled that courts should liberally set aside defaults so that lawsuits may be determined on their merits. A party seeking to vacate a default must demonstrate that the failure to file responsive pleadings was the result of excusable neglect, that there existed a meritorious defense, and that the party was reasonably diligent in seeking to vacate the default after he learned that the default had been entered. Szucs v. Qualico Dev., Inc., 893 So.2d 708, 710 (Fla. 2d DCA 2005). Any reasonable doubt is to be resolved in favor of PGGG and Archibald. Id.

The affidavit of Archibald, an officer of PGGG, established that he had been speaking with an attorney, whom he wanted to hire, but that the attorney was ultimately unable to accept representation. At the time the responses were due in this case, Archibald was still looking for counsel. Archibald wrote a letter to counsel for Huynh and to the court explaining that he was looking to retain counsel and that he needed more time to respond to the complaint. This letter was timely filed within twenty days after service of the complaint and was sufficient to put Huynh on notice that PGGG and Archibald intended to defend the lawsuit. The facts alleged in the affidavit are enough to constitute excusable neglect for failing to timely respond to the complaint.

In considering whether a party acted with due diligence in moving to vacate a default, the court must consider both the extent of the delay and the reasons for the delay. Coquina Beach Club Condo. Ass'n, Inc. v. Wagner, 813 So.2d 1061, 1064 (Fla. 2d DCA 2002). If, under the circumstances, the delay was not unreasonable, the default should be vacated. Id. The record reflects that PGGG and Archibald acted diligently once they were served with the lawsuit and again when they learned of the default. PGGG and Archibald timely requested additional time in which to file their responses to the complaint. Moreover, counsel for PGGG and Archibald filed the motion to vacate three weeks after the judicial default was rendered and two weeks after the final default judgment was rendered. Under these circumstances, the delay was not unreasonable and PGGG and Archibald demonstrated due diligence.

Finally, we conclude that PGGG and Archibald sufficiently alleged a meritorious defense. A meritorious defense must be asserted either by a pleading or in an affidavit. Merrill Lynch Mortg. Capital, Inc. v. Hallmark Indus., Inc., 627 So.2d 12, 13 (Fla. 2d DCA 1993). If a defendant is relying on a factual defense to obtain relief from a default judgment, the ultimate facts establishing the defense must be set forth in a verified answer, sworn motion, or affidavit, or by other competent evidence. Geer v. Jacobsen, 880 So.2d 717, 721 (Fla. 2d DCA 2004). An unverified pleading may be sufficient to establish a legal defense to support relief from a default judgment. Id.

Here, the affidavit provided that the agreement between the parties was never intended to be a loan, that Huynh never loaned either PGGG or Archibald the $70,000 alleged, that neither PGGG or Archibald breached the agreement where the agreement provides that non-payment does not constitute a breach, and that Huynh breached the agreement first by failing to move out of a residence located on the property, as required by the agreement. Moreover, the motion to vacate asserted that the agreement was not signed by PGGG and that PGGG was not a party to the agreement. These facts are sufficient to set forth material issues of fact and establish legal grounds that constitute meritorious defenses.

Because PGGG and Archibald carried their burden of establishing excusable neglect, due diligence, and a meritorious defense, the trial court abused its discretion in denying the motion to vacate default and final default judgment. We, therefore, reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and MORRIS, J.J., Concur.


author: LAMBERT, J.

text:
    Julian PLUCK, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1742
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018
    Christopher T. Cochran, Merritt Island, for Appellant.
    No Appearance for Appellee.
   LAMBERT, J.

Appellant challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record conclusively refutes the claims raised by Appellant in his motion, we affirm.

In February 2017, Appellant was charged with possession of a controlled substance with the intent to sell or deliver. Six months later, pursuant to a negotiated plea agreement, the trial court accepted Appellant's no contest plea, withheld an adjudication of guilt, and placed Appellant on eighteen months of probation.

Appellant thereafter timely filed the present motion alleging that his trial counsel was ineffective for failing to properly advise him of the possible deportation consequences of his plea. Appellant asserted that he is now being deported as a result of his plea and that if he had been properly advised by his counsel, he would not have tendered this plea. Appellant further alleged that the deportation warning provided to him by the trial court was "defective," and he moved that his plea be vacated and that he be allowed to proceed to trial. In denying the motion, the postconviction court attached to its order a copy of the transcript of the change of plea hearing and held that this transcript conclusively refuted Appellant's claim that his plea was involuntary because he was not properly advised of the potential deportation consequences. We agree.

Before accepting a plea of guilty or nolo contendere, Florida Rule of Criminal Procedure 3.172(c) requires that a trial judge make certain inquiries of defendants and issue standard warnings to them to ensure the voluntariness of their plea. Prior to January 1, 2016, subsection (c)(8) of this rule required that a judge advise a defendant that if he or she is not a United States citizen, a plea of guilty or nolo contendere may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. In Hernandez v. State , 124 So.3d 757 (Fla. 2012), the Florida Supreme Court held that this equivocal warning that a guilty or nolo contendere plea "may subject you" to deportation does not bar ineffective assistance of counsel claims in every instance, especially where deportation consequences are "truly clear." 124 So.3d at 762. Under such circumstances, the court concluded that "an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel's deficiency." Id. at 763.

Following the court's opinion in Hernandez , rule 3.172(c) was amended effective January 1, 2016, as to the various requirements placed upon the trial judge before accepting a guilty or nolo contendere plea. See In re Amendments to the Fla. Rules of Criminal Procedure , 188 So.3d 764, 766-71 (Fla. 2015). The judge, when determining the voluntariness of a plea, must now place the defendant under oath, address the defendant personally, and determine on the record that the defendant understands certain rights enumerated in this rule. Id. at 766. The former subsection (c)(8) of the rule, including the brief admonition given to the defendant that a plea of guilty or nolo contendere "may subject" him or her to deportation, was deleted in its entirety and replaced with the following expanded version:

(8) Deportation Consequences.
(A) If the defendant is not a citizen of the United States, a finding of guilt by the court, and the court's acceptance of the defendant's plea of guilty or no contest, regardless of whether adjudication of guilt has been withheld, may have the additional consequence of changing his or her immigration status, including deportation or removal from the United States.
(B) The court should advise the defendant to consult with counsel if he or she needs additional information concerning the potential deportation consequences of the plea.
(C) If the defendant has not discussed the potential deportation consequences with his or her counsel, prior to accepting the defendant's plea, the court is required, upon request, to allow a reasonable amount of time to permit the defendant to consider the appropriateness of the plea in light of the advisement described in this section.
(D) This admonition should be given to all defendants in all cases, and the trial court must not require at the time of entering a plea that the defendant disclose his or her legal status in the United States.

Fla. R. Crim. P. 3.172(c)(8).

Returning to the present case, the transcript of the plea hearing attached to the order on appeal conclusively shows that counsel was not ineffective and that the trial court and counsel complied with the new requirements of rule 3.172(c)(8). First, Appellant's counsel represented to the trial court that the case had in fact been continued several times to provide Appellant with the opportunity to consult separately with immigration attorneys to discuss the potential effect that his plea may have regarding his possible deportation. Second, Appellant was placed under oath and, in response to the court's direct inquiry, testified that he understood that entering his plea may have deportation consequences. Appellant also testified that he had separately consulted with an attorney about these deportation consequences and that he still believed that it was in his best interest to enter his plea. Lastly, the trial court found that Appellant understood that by tendering his no contest plea, he was giving up certain constitutional rights previously addressed at the hearing and that Appellant had entered into the plea freely and voluntarily with the understanding of the consequences of the plea.

To establish an ineffective assistance of counsel claim, a defendant must first show that counsel's performance was deficient and, second, that the deficient performance prejudiced the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where, as here, no evidentiary hearing is held on the rule 3.850 motion, the defendant's factual allegations in the motion must be accepted as true to the extent that they are not conclusively refuted by the record. Peede v. State , 748 So.2d 253, 257 (Fla. 1999). As outlined above, Appellant's claims were conclusively refuted by the record attachments to the order on appeal. Accordingly, we affirm the postconviction court's denial of Appellant's rule 3.850 motion.

AFFIRMED.

EDWARDS and EISNAUGLE, JJ., concur.

      Counsel volunteered to the trial court that Appellant is not a United States citizen.


author: PER CURIAM.

text:
    Camilo Jose DIAZ, Appellant, v. DEPARTMENT OF REVENUE CHILD SUPPORT PROGRAM and Adriana Cecilia Braschi, Appellees.
    No. 3D18-968
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Camilo Jose Diaz, in proper person.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General (Tallahassee), for appellee Department of Revenue.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error."); Boylan v. Boylan, 571 So.2d 580 (Fla. 4th DCA 1990) ("Appellant has the burden of bringing before the appellate court an adequate record to support his appeal."); § 409.2563(7)(b), Fla. Stat. (2017) ("If the parent from whom support is being sought does not file a timely request for a hearing, the parent will be deemed to have waived the right to request a hearing.").


text:
    A.F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1694
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER and LUCK, JJ.
   PER CURIAM.

Affirmed. See W.M. v. State, 34 So.3d 146 (Fla. 3d DCA 2010).


author: CLARK, Justice

text:
    CITY OF NEW ORLEANS v. Lawrence CLARK
    No. 2017-KK-1453
    Supreme Court of Louisiana.
    September 7, 2018
   CLARK, Justice

Defendant, Lawrence Clark, was issued a citation for displaying his art for sale on the neutral ground at Decatur Street and Esplanade Avenue in New Orleans, in violation of New Orleans Municipal Code § 110 -11. Mr. Clark moved to quash the charging affidavit, asserting the ordinance is unconstitutional. We granted this writ application to consider whether New Orleans Municipal Code § 110 -11, which regulates the outdoor retail sale of art, is unconstitutional as a violation of Mr. Clark's First Amendment rights. For the following reasons, we find the ordinance is unconstitutional. Therefore, we reverse the lower courts' rulings and grant the motion to quash the charging affidavit against Mr. Clark.

FACTS AND PROCEDURAL HISTORY

On March 22, 2016, Mr. Clark was issued a citation as a prohibited vendor for violating Municipal Code § 110 -11. The citing officer wrote on the citation "art on display table; display on the neutral ground at Decatur & Esplanade." Mr. Clark filed a motion to quash the charging affidavit and to declare Municipal Code § 110 -11 unconstitutional, asserting it infringes upon his First Amendment right of expression. Following a hearing in New Orleans Municipal Court, the judge denied defendant's motion to quash. Defendant sought review from the Criminal District Court for the Parish of Orleans. The Appellate Division of Criminal District Court affirmed the ruling, finding no abuse of discretion in the municipal court's ruling. Subsequently, the court of appeal granted defendant's writ and vacated the lower courts' judgments, finding the issue of the constitutionality of the ordinance was not properly before the lower courts, because the attorney general had not been properly notified and served. City of New Orleans v. Clark , 16-K-0838 (La. App. 4 Cir. 9/22/16).

Following proper service on the attorney general, defendant reasserted his motion to quash, which was again denied by the municipal court judge. The Appellate Division of Criminal District Court affirmed the ruling, finding the restrictions imposed by the ordinance to be reasonable and constitutional. The court of appeal then denied defendant's writ application, finding the motion to quash "meritless." City of New Orleans v. Clark , 17-K-0563 (La. App. 4 Cir. 7/31/17). On defendant's application, we granted supervisory review. City of New Orleans v. Clark , 17-1453 (La. 12/5/17), 231 So.3d 625.

DISCUSSION

The New Orleans Municipal Code regulates outdoor retail sales conducted on city property. In general, Section 110-11, entitled "Prohibited street vendors," provides:

(a) It shall be unlawful for any person to engage in any retail sales or permit any displays, signs, or advertisements for retail sales outside of any enclosed building within the city, unless expressly provided in another section of the Code of the City of New Orleans.
(b) Whoever violates the provisions of this section shall be punished by a fine not exceeding $500.00 or by imprisonment for not more than six months, or both such fine and imprisonment.

Pursuant to the directive of subsection (a), the Municipal Code expressly provides for the sale of art in other sections. See New Orleans, La., Municipal Code §§ 110-121 to 110-132. Specifically, through a series of ordinances, the City of New Orleans provides a permitting process that allows artists to sell their work in certain defined areas: an "A" permit allows the "permittee to paint and sell original works of art in that area defined as 'the Jackson Square setup area.' " New Orleans, La., Municipal Code § 110-121(d). The Jackson Square setup area" is defined as "a) the area extending 20 feet from the Jackson Square fence on St. Peter Street; b) the area extending 20 feet from the Jackson Square fence on Chartres Street; c) the area extending 20 feet from the Jackson Square fence on St. Ann Street; and d) the area extending five feet from the Jackson Square fence on Decatur Street." New Orleans, La., Municipal Code § 110-121(b). A "B" permit allows artists to "paint and sell works of art in that area defined as the 'vicinity of Jackson Square.' " New Orleans, La., Municipal Code § 110-121(e). " 'Vicinity of Jackson Square' means Pirates Alley and that area of Royal Street bounded by Pirates Alley and Pere Antoine Alley." New Orleans, La., Municipal Code § 110-121(f). Artists holding "A" or "B" permits can also apply to the French Market Corporation "for permission to manually paint, sketch or draw on plain surfaces only" within the French Market promenades and parks. New Orleans, La., Municipal Code § 110-130. In addition to the explicit provision for "A" and "B" permits in the ordinances, the City of New Orleans also provides for an artist "C" license for the sale of art in Edison Park, located off of Bourbon Street in the French Quarter. Although "C" permits are not specifically described in the Municipal Code, the City provides for type "C" permits (Edison Park) in its master application for occupations/general business license. The parties do not dispute the availability of this type of permit. The Municipal Code provides that "A" permits are limited to 200, but provides no cap for "B" or "C" permits. New Orleans, La., Municipal Code § 110-127.

Mr. Clark argues the cumulative effect of these ordinances (collectively, "the ordinance") is a blanket prohibition on the outdoor sale of art in New Orleans other than in these narrowly defined spaces in the French Quarter. He argues this sweeping ban on a core form of artistic expression violates the fundamental free speech guarantees of the First Amendment of the United States Constitution and Article I, Section 7, of the Louisiana Constitution. By contrast, the State of Louisiana and the City of New Orleans (collectively, "the City") argue the ordinance sets forth constitutional regulations on commercial speech. The City also argues the regulations are constitutionally permissible as time, place, and manner regulations on speech.

The determination of the constitutionality of a statute presents a question of law, which is reviewed by this court de novo . State v. Webb , 13-1681 (La. 5/7/14), 144 So.3d 971, 975. "This court interprets a municipal or City ordinance using the same guidelines as those used in construing a statute. An ordinance, like a state statute, is presumed to be constitutional. Whoever attacks the constitutionality of an ordinance bears the burden of proving his allegation." Rand v. City of New Orleans , 17-0596 (La. 12/6/17), 235 So.3d 1077, 1082 (internal citations removed).

The First Amendment prohibits the enactment of laws "abridging the freedom of speech." U.S. Const., amend. I. In a series of decisions beginning with Gitlow v. New York , 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), the Supreme Court has held and reaffirmed "that the liberty of speech ... which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action." First Nat. Bank of Boston v. Bellotti , 435 U.S. 765, 779, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (citing Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495, 500-01, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) ). The Supreme Court has further stated that the Constitution looks beyond written or spoken words as mediums of expression:

Noting that symbolism is a primitive but effective way of communicating ideas, our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even marching, walking or parading in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston , 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487, 132 L.Ed. 487 (1995) (internal quotes and citations removed). It is undisputed that the speech or expression involved in this case is protected by the First Amendment. Although the factual record is limited, based on the summons issued to Mr. Clark and the contentions of the parties, it is apparent that Mr. Clark was selling his artwork from a display table on the neutral ground at Esplanade Avenue and Decatur Street in New Orleans. "It goes without saying that artistic expression lies within this First Amendment protection." Nat'l Endowment for the Arts v. Finley , 524 U.S. 569, 602, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998).

Moreover, the fact that Mr. Clark was selling his art for profit does not change the First Amendment analysis. "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Riley v. National Fed'n of the Blind of N.C., Inc. , 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Speech is protected even though it is carried in a form that is sold for profit and even though it may involve a solicitation to purchase. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Thus, contrary to the City's assertion, we do not find Mr. Clark's action of selling his artwork to be commercial speech. Commercial speech is defined as speech that solely proposes a commercial transaction, not speech for profit. Bd. Of Trustees of State Univ. of New York v. Fox , 492 U.S. 469, 482, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ; Virginia Pharmacy Board , 425 U.S. at 761, 96 S.Ct. 1817. There is nothing in the record to suggest Mr. Clark's work proposed a commercial transaction. Rather, he was selling his artwork for profit.

The application of the ordinance to Mr. Clark's expressive activity undoubtedly raises the question of whether the ordinance abridges his freedom of speech and expression within the meaning of the First Amendment. However, the fact that the ordinance presents a First Amendment issue does not necessarily mean it constitutes a First Amendment violation. See Members of the City Council of City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 808-04, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The Supreme Court has explained:

To ascertain what limits, if any, may be placed on protected speech, we have often focused on the "place" of that speech, considering the nature of the forum the speaker seeks to employ. Our cases have recognized that the standards by which limitations on speech must be evaluated differ depending on the character of the property at issue. Specifically, we have identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum.

Frisby v. Schultz , 487 U.S. 474, 479-80, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (internal citations removed). Public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are generally considered to be traditional public forums. See United States v. Grace , 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). We recognize, and the City does not dispute, that the neutral ground where Mr. Clark was selling his artwork is a public forum for First Amendment purposes.

The government's ability to prohibit expressive activity in public forums is limited. However, it is well settled that the First Amendment does not guarantee the right to communicate one's views at all time and places or in any manner that may be desired. Taxpayers for Vincent , 466 U.S. at 812, 104 S.Ct. 2118 (citing Heffron v. Int'l Soc. for Krishna Consciousness, Inc. , 452 U.S. 640, 647, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) ). The Supreme Court has long held that even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. See, e.g., Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ; Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) ; Consolidated Edison Co., v. Public Serv. Comm'n , 447 U.S. 530, 535-36, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) ; see also In re Warner , 05-1303 (La. 4/17/09), 21 So.3d 218, 244. The City's ordinance must be examined in the context of this framework.

The first criterion for a valid time, place, and manner restriction is that the ordinance be "content neutral." This determination is essential because regulations that burden speech, but that are unrelated to the speaker's viewpoint or to the content of the speech, are subject to an intermediate level of judicial scrutiny, rather than the strict level of scrutiny that is applicable to content based regulations that suppress, disadvantage, or impose differential burdens on speech because of its content. Turner Broad. Sys., Inc. v. F.C.C. , 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ; see also, In re Warner , 21 So.3d at 244. Strict scrutiny makes it less likely that a regulation will clear the constitutional hurdle because the operative test is whether a regulation "is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Arkansas Writers' Project, Inc. v. Ragland , 481 U.S. 221, 231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). However, under intermediate scrutiny, the test is less exacting and requires only that the restriction be narrowly tailored to serve a significant governmental interest, and that it leaves open ample alternative channels for communication of the information. Community for Creative Non-Violence , 468 U.S. at 293, 104 S.Ct. 3065.

"The principal inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government had adopted a regulation of speech because of disagreement with the message it conveys." Rock Against Racism , 491 U.S. at 791, 109 S.Ct. 2746 (citing Community for Creative Non-Violence , 468 U.S. at 295, 104 S.Ct. 3065 ). A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Rock Against Racism , 491 U.S. at 791, 109 S.Ct. 2746. In this case, the ordinance regulates the outdoor locations where artists can sell their artwork. The ordinance is equally applicable to all artists, regardless of medium or message. Thus, we find the ordinance satisfies the content neutrality requirement.

To pass constitutional muster, the ordinance must also serve a significant governmental interest. The City asserts an interest in preserving the "tout ensemble " of the French Quarter and advancing its substantial economic interest by promoting tourism, and an interest in keeping its streets and neutral grounds open and available for movement in a manner that advances public safety. We accept that the City has stated a legitimate and significant interest in preserving the distinct charm, character, and economic vitality of the French Quarter. In enacting the ordinance, the New Orleans City Council recognized the Supreme Court's decision in City of New Orleans v. Dukes , which noted "[t]he Vieux Carre of the city of New Orleans is the heart of [the] city's considerable tourist industry and an integral component of the city's economy." 427 U.S. 297, 299, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). The regulation of sales of merchandise on city property within city limits is part of a city's traditional municipal police powers, and the City has a legitimate interest in controlling commerce on city streets and other public property. The City has made the considered decision to promote its economy by driving outdoor art sales to the heart of the City's tourism industry - the French Quarter - thereby "enhancing the vital role of the French Quarter's tourist-oriented charm in the economy of New Orleans." See id. at 303, 96 S.Ct. 2513. We find that decision advances the City's significant economic and cultural preservation interests. See also, One World Family Now v. City of Miami Beach , 175 F.3d 1282, 1288 (11th Cir. 1999) ("There is also no question that the city's further interest in creating an aesthetic ambiance which will attract tourists to the historic Art Deco district - which it considers 'the economic lifeblood of the city' - is a substantial government interest...."). The Supreme Court has recognized that the government may exercise its police powers to advance esthetic values, reasoning the "concept of public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary." Taxpayers for Vincent , 466 U.S. at 805, 104 S.Ct. 2118 (internal citations removed). Further, there is no question that "[g]overnmental authorities have the duty and responsibility to keep their streets open and available for movement." Cox v. Louisiana , 379 U.S. 536, 554-55, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). The neutral grounds between the streets should be treated no differently. We find the City has the right to regulate the use of its streets, neutral grounds, and other facilities to assure the safety and convenience of the people in their use of the property. See Heffron , 452 U.S. at 650, 101 S.Ct. 2559.

In addition to serving a significant governmental interest, the ordinance must be narrowly tailored to serve that interest. The means chosen by the City to achieve the desired end need not be the least intrusive or least restrictive means of doing so. Rock Against Racism , 491 U.S. at 798, 109 S.Ct. 2746. The Supreme Court has clearly held that "restrictions on the time, place, or manner of protected speech are not invalid 'simply because there is some imaginable alternative that might be less burdensome on speech.' " Id. at 797, 109 S.Ct. 2746 (citing United States v. Albertini , 472 U.S. 675, 689, 105 S.Ct. 2897, 2906, 86 L.Ed.2d 536 (1985) ). Allowing some forms of expression, while denying others, does not signify a violation of the First Amendment. See U.S. v. Kokinda , 497 U.S. 720, 734, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990) (wherein the Court found the activity of solicitation could be signaled out and prohibited because of the disruption it caused). The sale of art in outdoor public spaces invites patrons not only to observe the artwork, but also to stop for longer periods of time to conduct a sales transaction. See, e.g., Heffron , 452 U.S. at 653, 101 S.Ct. 2559 (wherein the Court recognized a distinction between the purely communicative aspect of oral advocacy and the solicitation of contributions, which may be more disruptive on order and crowd flow). As the Court explained in Kokinda :

Solicitation impedes the normal flow of traffic. Solicitation requires action by those who would respond: The individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card. As residents of metropolitan areas know from daily experience, confrontation by a person asking for money disrupts passage and is more intrusive and intimidating than an encounter with a person giving out information. One need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone's hand, but one must listen, comprehend, decide, and act in order to respond to a solicitation. Solicitors can achieve their goal only by "stopping [passersby] momentarily or for longer periods as money is given or exchanged for literature" or other items.

497 U.S. at 733-34, 110 S.Ct. 3115 (internal citations removed). The outdoor sale of art raises the same concerns. Notably the ordinance does not purport to regulate display of art, or other forms of communication. The act of displaying art does not require action by anyone, whereas the sale of art requires action - someone stopping to make a transaction. Art purchases are more time-consuming and more absorbing than observing a display and moving on. Limiting outdoor sale of art to designated areas of the city and prohibiting general retail sale of art on sidewalks and neutral grounds allows drivers to have clear visuals of the roads and pedestrians without distractions and delays, and allows for the free flow of pedestrian and vehicular traffic within the city.

The City maintains that absent the ordinance, unlimited artists could set up shop and conduct retail sales on the neutral grounds, sidewalks, or other public areas throughout the city. Unquestionably, crowds of artists selling their work would affect the City's ability to control public safety and regulate sales on its property. See, e.g., Community for Creative Non-Violence , 468 U.S. at 296-97, 104 S.Ct. 3065 ; Heffron , 452 U.S. at 652-53, 101 S.Ct. 2559. While the ordinance does impose some burden on speech, the ordinance does not prohibit all speech on public property, including the neutral ground chosen by Mr. Clark. The City asserts that restricting outdoor sales of art to its highest tourism area serves its significant governmental interests of public safety and economic benefit, and, without the regulation, it could not effectively accomplish its goals.

Mr. Clark concedes that the City has a valid interest in regulating the conduct of art vendors and that narrowly tailored regulations that ensure safety of drivers and pedestrians comport with the First Amendment. However, he argues, the City has taken no measures to tailor its regulation of the sale of art in public places such as the neutral ground to avoid impermissibly burdening protected speech. Rather, the City has completely banned the sale of art in every public space in New Orleans save the Jackson Square area and Edison Park in the French Quarter.

The decision in ACORN v. City of New Orleans , 606 F.Supp. 16 (E.D.La. 1984), provides guidance on permissible regulations on speech in the neutral ground and other public fora. In ACORN , a non-profit organization challenged a New Orleans city ordinance that prohibited persons from standing in a roadway or on the neutral ground for the purpose of soliciting funds. The court found the total ban on soliciting funds in roadways or on neutral grounds to be an unconstitutional restriction of expression and enjoined its enforcement. The court held that while the City had a valid interest in promoting safety and convenience by enacting time, place, and manner restrictions on expressive activity on the neutral ground, a complete ban was overbroad. Id. at 22. Specifically, the court found the City had not taken into account factors such as "the part of town, the number of cars passing, the speed of traffic, the width of the neutral grounds, the presence of a stop sign or traffic signal, or the color of the light ... the number of solicitors, their visibility, the size of their signs, the time of day or the day of the week." Id.

The record before us indicates the City has taken no measures to tailor its regulation of the sale of art in public places to avoid impermissibly burdening protected speech. In fact, Municipal Code § 110-11 is not even limited to areas next to roadways or solicitation of motorists. Rather, it extends to all outdoor sales to all individuals, including pedestrians. The City could have made "an earnest attempt to accommodate legitimate speech interests through careful drafting" by adopting "less restrictive methods" to ensure public safety-for example, by regulating the distance between an artist and the roadway or by prohibiting artists from distracting behavior. See ACORN , 606 F.Supp. at 24. We find neither of the purported interests identified by the City-public safety and economic benefit-justify the significant burden on speech created by Municipal Code § 110-11. Both of these interests can be achieved by far less restrictive means than the ordinance's citywide prohibition on outdoor sales of art, save the Jackson Square area and Edison Park in the French Quarter. Thus, we conclude the ordinance is overly broad and not narrowly tailored to serve the City's substantial interests.

Furthermore, we find the ordinance does not allow ample alternative channels for artists to communicate their message. The City's ordinance offers no alternative geographic channel for selling art; such sales are completely banned outside the French Quarter.

The guarantee of the right to expression under the Louisiana Constitution must be at least equal-if not greater-to that of the First Amendment. See State v. Franzone , 384 So.2d 409, 411 (La. 1980). However, owing to a ban on artistic expression that is geographically broad in scope, there is no ample alternative channel for artistic expression. Community for Creative Non-Violence , 468 U.S. at 293, 104 S.Ct. 3065. In a city with allegiances to neighborhoods spanning generations, the people who populate Central City, the Garden District, the Irish Channel, Broadmoor, Hollygrove, Gert Town, Mid-City, Treme, City Park, Lakeview, Gentilly Woods, Faubourg Marigny, St. Roch, the Lower Ninth Ward, Little Woods, Village de L'est, Lake Catherine, Algiers Point and English Turn, among other neighborhoods, have limitations imposed on their constitutionally-protected artistic expression. Thus, we find the City's ordinance violates the First Amendment, and the lower courts erred by holding otherwise.

DECREE

Accordingly, we hold New Orleans Municipal Code § 110-11 is unconstitutional. We reverse the lower courts' rulings and grant the motion to quash the charging affidavit against Mr. Clark.

REVERSED; MOTION TO QUASH GRANTED

Hughes, J., dissents for the reasons assigned by Chief Justice Johnson.

JOHNSON, Chief Justice, dissents and assigns reasons.

I respectfully dissent because I find Municipal Code § 110-11, which regulates the outdoor retail sale of art in New Orleans, is constitutional and does not violate Mr. Clark's First Amendment rights.

In this case, Mr. Clark was conducting a retail sale of his artwork on public property without a permit. There is no question that Mr. Clark's conduct is subject to reasonable time, place, or manner restrictions by the City. See Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 293, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984). As recognized by the majority, the City's ordinance is subject to an intermediate level of judicial scrutiny and only requires that the restriction be narrowly tailored to serve a significant governmental interest, and that it leaves open ample alternative channels for communication of the information. See id. In this case, I find the ordinance passes constitutional muster.

The Ninth Circuit's decision in One World One Family Now v. City & Cty. of Honolulu , 76 F.3d 1009 (9th Cir. 1996) is particularly instructive because it concerns a city ordinance regulating sales in public places. In that case, plaintiffs, nonprofit organizations that sold T-shirts imprinted with various philosophical and inspirational messages, challenged a Honolulu ordinance which banned the sale of all "goods, wares, merchandise, foodstuffs, refreshments or other kinds of property or services ... upon the public streets, alleys, sidewalks, malls, parks, beaches and other public places in Waikiki." One World One Family Now , 76 F.3d at 1011. Plaintiffs argued their selling was constitutionally protected expression and the ordinance could not be applied to them. The court agreed that plaintiffs' conduct was protected by the First Amendment. Relying on its earlier decision in Gaudiya Vaishnava Soc'y v. City and County of San Francisco , 952 F.2d 1059 (9th Cir.1990), cert. denied , 504 U.S. 914, 112 S.Ct. 1951, 118 L.Ed. 2d 555 (1992), the court explained "that, when the sale of merchandise bearing political, religious, philosophical or ideological messages is 'inextricably intertwined' with other forms of protected expression (like distributing literature and proselytizing), the First Amendment applies." Id. at 1012. However, the court went on to hold the Honolulu ordinance was a valid time, place and manner restriction and could be applied to prohibit plaintiffs' selling of their merchandise.

The Ninth Circuit recognized that cities have a substantial interest in protecting the aesthetic appearance of their communities by avoiding visual clutter and a substantial interest in assuring safe and convenient circulation on their streets. Id . at 1013. The court further found that Honolulu demonstrated a substantial interest in protecting local merchants from unfair competition. Id . The court held that the ordinance was narrowly tailored to serve these interests because they would be achieved less effectively absent the regulation. Id . The court noted:

Without the ordinance, sidewalk vendors (commercial and charitable alike) would be free to peddle their wares on [the streets] undermining the city's efforts to provide a pleasant strolling and shopping area. A proliferation of sidewalk vendors could also aggravate the congestion on already crowded sidewalks and siphon off sales from local merchants. Because the peddling ordinance addresses these problems without ... significantly restricting a substantial quantity of speech that does not create the same evils, [the ordinance] is narrowly tailored.

Id . at 1014. The court further rejected plaintiffs' argument that Honolulu could adopt less restrictive alternatives to advance its interests, such as limiting the number of vendors, their hours of operation or the size and location of their stands. Id . The court explained a "reasonable time, place and manner regulation, however, need not be the least restrictive or least intrusive alternative. So long as the means chosen are not substantially broader than necessary to achieve the government's interest, ... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. Id . (Internal citations removed). The court held that "Honolulu's peddling ordinance isn't substantially broader than necessary to achieve its interests. The ordinance targets precisely the activity-sidewalk vending-causing the problems the city legitimately seeks to ameliorate, and it doesn't sweep in expressive activity that doesn't contribute to those problems." Id . (Internal quotations and citations removed).

The Ninth Circuit further found that the ordinance left open ample alternative channels of communication, explaining:

The ordinance forecloses one narrow form of expression-sidewalk sales of message-bearing merchandise-and leaves the plaintiffs free to disseminate and seek financial support for their views through "myriad and diverse" alternative channels, such as handing out literature, proselytizing or soliciting donations. In addition, plaintiffs' volunteers may hand out free T-shirts to passers-by, or mingle with Waikiki's tourist throngs wearing T-shirts (thereby acting as human billboards). Plaintiffs may also sell T-shirts through local retail outlets or by opening their own stores, so long as they comply with the regulations generally applicable to merchants.

Id . (Internal quotations and citations removed).

As in One World One Family Now , the ordinance at issue seeks to regulate retail sales on city property. And, as that court concluded, I find the ordinance in this case is narrowly tailored to serve the City's interests. Mr. Clark was conducting a commercial transaction on city property by selling his artwork on the neutral ground. The majority recognizes the City's substantial interest in preserving the distinct charm, character, and economic vitality of the French Quarter. The majority further recognizes the City's interest in controlling commerce within the city limits, and a duty to assure the safety and convenience of the people in their use of the City's property. The ordinance solely regulates sale of art on public property. The ordinance does not prohibit all speech on public property. Although the majority gives passing mention to the potential disruption on order and crowd flow caused by the sale of art in outdoor public spaces, the majority fails to fully recognize and distinguish the effect of such conduct from other forms of expression, such as pure oral advocacy. In my view, there are real differences between distribution of information and sales, as conducting a sale on public property undoubtedly presents greater crowd control problems. As in One World One Family Now , I find the ordinance in this case is not broader than necessary to achieve the City's interests. Without the ordinance, anyone would be free to sell their artwork anywhere in the city, undermining the city's efforts to maintain the character and economic vitality of the French Quarter. A swarm of art sellers on city streets would also increase congestion and impede pedestrian and traffic flow, creating public safety concerns. Further, it is my opinion that a city, by regulation, can protect local merchants who incur substantial costs to sell artwork in the city by controlling and governing outdoor vendors of art who necessarily siphon off some of the sales from these local merchants. Thus, even if there are other ways to accomplish the City's goals, I do not find this ordinance substantially burdens more speech than necessary. The City is entitled to make a judgment that restricting outdoor sales of artwork to its highest tourism area serves the City's significant governmental interests of public safety and economic benefit. The ordinance targets the problems the city legitimately seeks to control, and does not sweep in other expressive activity that does not contribute to those problems.

Likewise, I do not find the majority's reliance on the 1984 federal district court's decision in ACORN v. City of New Orleans persuasive. In ACORN , the plaintiff challenged a city ordinance which prohibited persons from standing in a roadway or on a neutral ground for the purpose of soliciting funds. Unlike this case which deals strictly Mr. Clark's retail sale, ACORN is a non-profit association of low and moderate income people with the purpose of advancing the interests of its membership in areas of social and political concern such as utility rates, hazardous materials and park facilities. One of its methods of information dissemination and fundraising involves distributing information and soliciting funds at roadway intersections. 606 F.Supp. at 18. ACORN argued the ordinance violated the rights of its solicitors because it was overbroad and the City could accomplish its goals by less intrusive means. Id. at 20. The court agreed and found the city's ordinance fell short of being a reasonable time, place and manner regulation, reasoning that "for an ordinance to pass constitutional muster as a time, place and manner regulation, the government has the burden of showing that it has employed the means least restrictive of protected First Amendment activity." Id . at 23 (emphasis added). However, the United States Supreme Court has subsequently made clear that "this less-restrictive-alternative analysis ... has never been a part of the inquiry into the validity of a time, place, and manner regulation."

Ward v. Rock Against Racism , 491 U.S. 781, 797, 109 S.Ct. 2746, 105 L.Ed. 2d 661 (1989) (internal quotations and citations removed). The Supreme Court specifically held that "a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Rock AgainstRacism , 491 U.S. at 798-99 (emphasis added) (internal quotations and citations removed).

Additionally, unlike the majority, I find the ordinance allows ample alternative channels for artists to communicate their message. An alternative forum does not have to be the speaker's first choice. The First Amendment requires only that the government refrain from denying a reasonable opportunity for communication. In Members of the City Council of City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed. 2d 772 (1984), a political candidate challenged the constitutionality of an ordinance which prohibited the posting of signs of public property. In upholding the ban, the Supreme Court found the ordinance allowed for adequate alternative modes of communication:

The Los Angeles ordinance does not affect any individual's freedom to exercise the right to speak and to distribute literature in the same place where the posting of signs on public property is prohibited. To the extent that the posting of signs on public property has advantages over these forms of expression, there is no reason to believe that these same advantages cannot be obtained through other means. To the contrary, the findings of the District Court indicate that there are ample alternative modes of communication in Los Angeles. Notwithstanding appellees' general assertions in their brief concerning the utility of political posters, nothing in the findings indicates that the posting of political posters on public property is a uniquely valuable or important mode of communication, or that appellees' ability to communicate effectively is threatened by ever-increasing restrictions on expression.

466 U.S. at 812 (internal citations removed). In this case, although the ordinance limits the number of outdoor places in the city where artists can sell their art, thus curtailing Mr. Clark's opportunity to communicate in that specific manner, this is a necessary side effect of almost any restriction on speech. The proper focus is not on whether a degree of curtailment exists, but rather on whether the remaining avenues are adequate. Contrary to Mr. Clark's assertions, I do not find the ordinance acts as a sweeping ban on the outdoor sale of artwork in the city. The ordinance does not proscribe the retail sale of art altogether, but simply regulates and designates the permissible locations for such activity. The ordinance does not apply to retail sales of art in indoor spaces, nor does the ordinance impose restrictions on other forms of communication and expressive activity, such as display of artwork. The ordinance permits a general dissemination of a message. The limited nature of the prohibition makes it self-evident that ample alternatives remain. The ordinance does not prevent an artist from displaying his artwork in the same place where the sale of artwork may be prohibited. Notably, the ordinance would not have prevented Mr. Clark from displaying his artwork or distributing fliers about his artwork on the same neutral ground.

For these reasons, I would affirm the rulings of the lower courts and find the ordinance sets forth constitutionally permissible time, place and manner restrictions on the sale of art on public property.

Hughes, J., dissents for the reasons assigned by Chief Justice Johnson.

      Louisiana C.Cr.P. art. 532 provides in relevant part: "A motion to quash may be based on one or more of the following grounds: (1) The indictment fails to charge an offense which is punishable under a valid statute."

      Similarly, the Louisiana Constitution provides in relevant part: "No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom." La. Const. Ann. art. I, § 7.

      Designating speech as commercial or non-commercial is not necessarily outcome determinative. Even pure commercial speech is entitled to significant First Amendment protection. See City of Cincinnati v. Discovery Network, Inc. , 507 U.S. 410, 423, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993).

      See City of New Orleans Ordinance Documents, No. 21787 M.C.S., 10/28/04.

      Police power is the power of a governmental body to impose laws and regulations that are reasonably related to the protection or promotion of a public good such as health, safety or welfare. Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Par. Sch. Bd. , 586 So.2d 1354, 1367 n.20 (La. 1991).


text:
    STATE of Louisiana v. Ontrell WASHINGTON
    No. 2018-KD-0742
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRIT TO THE CRIMINAL DISTRICT COURT, FOR THE PARISH OF ORLEANS
    CRICHTON, J., would grant and assigns reasons:
    I would grant the State's writ application to vacate the trial court's ruling and reinstate the defendant's conviction and sentence.
    WEIMER, J., would grant and docket.
    CLARK, J., would grant and docket.
    CRICHTON, J., would grant and assigns reasons.


text:
    Christopher M. BAGWELL v. Brittany O. BAGWELL
    2018-CJ-1025
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE 26th JUDICIAL DISTRICT COURT FOR THE PARISH OF BOSSIER
    Denied
    Hughes, J., would grant the writ to remand to the trial court for rendition of judgment from the May 2018 hearing.


text:
    STATE of Louisiana v. Donald DICKERSON
    No. 2017-KO-1147
    Supreme Court of Louisiana.
    August 31, 2018
   ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

Denied.

CRICHTON, J., additionally concurs and assigns reasons I agree with the court's decision to decline supervisory jurisdiction. However, I write separately to emphasize that defendant was found guilty of second degree battery based on evidence establishing that he engaged in a violent and unprovoked attack that resulted in serious and substantial injuries to the victim. See State v. Dickerson, 16-1336, pp. 2-3 (La. App. 1 Cir. 4/12/17), 218 So.3d 633, 637 (testimonial evidence established that defendant hit the victim multiple times, resulting in an orbital blowout fracture, a hematoma behind his injured eyeball, a nasal bone fracture, and ten stitches required in his face). The State appropriately filed a habitual offender bill, deeming defendant an adjudicated fourth-felony offender based on predicate felonies that are all crimes of violence (purse snatching, armed robbery, and simple robbery). Although the defendant claims a life sentence is unconstitutionally excessive because the present victim did not die from the injuries he inflicted, I believe the sentence imposed by the trial court is warranted by defendant's repeated recourse to violence, and that the State wisely exercised the discretion to pursue recidivist sentence enhancement to promote public safety.

      In contrast, this Court has found error when the State has improperly utilized La. R.S. 529.1 to punish non-violent offenders. See State v. Mosby, 14-2704 (La. 11/20/15), 180 So.3d 1274 (wherein the Court vacated the thirty-year sentence of a non-violent 72 year-old as unconstitutionally excessive); State v. Guidry , 16-1412 (La. 3/15/17), 221 So.3d 815 (...."[T]he abusive frequency with which a de minimis number of jurisdictions invoke habitual offender laws against non-violent actors appears to do little to protect the people of Louisiana, and depletes the already scarce fiscal resources of this state." Crichton, J., additionally concurring); and State v. Ladd , 14-1611 (La. 3/27/15), 164 So.3d 184 (Knoll, J., and Crichton, J., both concurring in the Court's reversal of sentence of non-violent defendant, where trial court supplied no reasons, as non-compliant with La. R.S. 15:529.1 )


author: PER CURIAM:

text:
    STATE of Louisiana v. Nathan R. DELONG
    No. 2017-KP-0840
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE THIRTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF GRANT
   PER CURIAM:

Denied. Relator fails to show he was denied access to the courts by an arbitrary and unjustified enforcement of the uniform rules governing the filing of applications in the court of appeal, and thus shows no error in the Third Circuit's denial of writs on technical grounds. La.C.Cr.P. art. 912.1(C).

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Cortrell L. BROOKS v. STATE of Louisiana
    No. 2017-KH-0806
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE FORTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF DESOTO
   PER CURIAM:

Denied. Relator fails to show that he was denied the effective assistance of counsel during plea negotiations under the standard of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. James SMITH v. STATE of Louisiana
    No. 2017-KH-0962
    Supreme Court of Louisiana.
    August 31, 2018
    ON SUPERVISORY WRITS TO THE TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF TANGIPAHOA
   PER CURIAM:

Denied. Relator does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. Relator's application was not timely filed in the district court, and he fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator's claims have now been fully litigated in accord with La.C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.