$5,000 fine for Solicitation to Commit Prostitution declared Unconstitutional

high heels.jpgIt’s time, again, to compare Florida’s laws to the rest of the world. Here in Florida, beating your wife–in front of your young kids yelling “stop hurting mommy”–carries a maximum fine is $1,000 and possibly jail time (of course, therapy for the kids will cost more than that). But, asking an undercover cop for $40 worth of sex will get you a $500 fine plus a mandatory $5,000 civil fine. That’s right. Consenting adults, a $5,000 mandatory fine. Kid’s yelling “stop hurting mommy” = $1,000 fine (max).

Technically, there isn’t a misdemeanor in Florida that carries a greater financial penalty than soliciting sex. A $5,000 mandatory fine sounds like something out of Middle Eastern country, maybe Turkey. No, prostitution is legal in Turkey (it’s the Middle East, how can that be?). How about those uptight Brits? Nope, prostitution is legal in the UK. Well, surely this $5,000 fine could be imposed by the predominantly Catholic Mexicans south of the border, right? Wrong, prostitution is legal in Mexico. Hum. Maybe the Russians would impose $5,000 mandatory fine? Sorry. In Russia, prostitution is like a speeding ticket, carrying a maximum fine of $65; it’s not criminal. But, as luck would have it, the good old State of Florida has a $5,000 mandatory fine attached to asking for sex from a prostitute. Florida has managed to make it into the top ten for our incarceration rate (worldwide), so it should come as no surprise that our fines are just as excessive as our incarceration rates. But, the times, they are a changin’.

Recently, a rare dose of common sense has sprung up out of Broward County. In the case of State v. Javares Jones (12-21991MM10A), Judge Kenneth Gottlieb found that the mandatory $5,000 civil fine attached to a Solicitation of Prostitution was unconstitutional. The facts of the case are pretty straight forward. Jones entered a plea to a second-degree misdemeanor Solicitation of Prostitution on January 21, 2014, and the court imposed a “mandatory civil penalty of $5,000”, pursuant to Section 796.07(6) of the Florida Statutes. Yes, this is a lot of money, especially when you consider the fact that a second degree misdemeanor carries a maximum fine of $500, and up to 60 days in jail. We all know that $5,000 is a bit excessive, but how do you prove such?

To determine whether a fine is “excessive”, the United States Constitution is a good place to start (actually, the Constitution is always a good place to start). The Eighth Amendment mandates that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The Florida Constitution has similar language in Article 1, Section 17, mandating that “excessive fines, cruel and unusual punishment … are forbidden.” The problem here is, of course, that we’re dealing with lawyers and legislatures who think that the Constitution is a “living breathing document” that can be manipulated to the whims of today’s legislature’s whims. And this is true, so long as We The People go through the trouble of amending the Constitution. But why amend the Constitution(s), when you can get around the “excessive fines” language by adding a “civil penalty”? The legislature figured that because they labelled the $5,000 something other than a “fine”, the fine won’t run afoul of the constitution, because it “is” a civil penalty–not a “fine”. Well, as Bill Clinton famously reasoned, it depends upon what the definition of “is” is (yes, Bill really said that, and meant it).

When the Florida Constitution and the United States Constitution both prohibit excessive fines–the state was confident that something called a “civil penalty” would fly under the radar. It did fly under the radar. Prior to 2012, the civil fine for solicitation was $500. That’s a still a bit much, when you consider the fact that two consenting adults are agreeing on a price for sex, but $500 is not excessive. Then the legislature increased $500 civil fine $5,000 effective January 1, 2013. Yes, this was passed by our legislature, and signed by our governor. I wonder if the congressperson who proposed this tenfold increase would also claim to be for less government and less taxes. Listen folks, you can’t claim to want less government on the one hand, and grant the government the power to financially molest it’s citizens on the other.

So, is a $5,000 mandatory fine disproportionate to a request for $40 worth of sex? Disproportionality cases are usually the focus of Florida’s forfeiture laws. We won’t go too deep into forfeiture here, but suffice it to say that the government may seize your car or home if they can show that it was used during the commission of a criminal offense.
To determine whether or not a government forfeiture “fits the crime”, the court looks at the facts of criminal offense versus the value of the forfeited property to determine disproportionality. A bust for $20 worth of crack cocaine will not support the forfeiture of a $100,000 Mercedes (AMG, 500 series, at this value). Recently, I had a case involving $300 worth of oxycodone, and my client’s paid off $50,000 Acura was seized (cops like to seize paid off vehicles). Unfortunately, Florida law does not provide mathematical guidelines as to what is considered reasonable. So, a forfeiture analysis examines the facts before determining the legality of the amount forfeited. Not so for solicitation’s $5,000 civil penalty. The $5,000 civil penalty is always $5,000–regardless of what happened in the case. Remember, Jones offered an undercover cop $40 for sexual intercourse, and walked out of court owing over $5,500 in fines and fees.

Judge Gottlieb found the $5,000 civil fine to be unconstitutional, reasoning that, due to “the recent tenfold increase in the civil fine, and because the fine is over one-hundred times higher than the financial consideration offered for the transaction, the fine imposed by Fla. Stat. 796.07(6) (2013) is unreasonable and excessive when considering the nature of the underlying criminal offense the Defendant was charged with committing.” Id. at 7. Of course, this judge knows his order will be appealed, so he certified the following question for the Fourth District Court of Appeal: “Is the $5,000 fine mandated by Fla. Stat. 796.07(6) (2013) for a first violation of Fla. Stat. 796.07 (2013), a second-degree misdemeanor under Florida law, unconstitutionally excessive, in light of the nature and gravity of the criminal offense being punished?

Hopefully, Judge Gottlieb’s ruling will have a positive effect on the rest of the state, so that we can put an end to these outrageous $5,000 fines. It’s sad that our court system must strike down the actions of our legislature, and it’s sad that it’s taken almost 2 years for one brave judge to step forward and limit our government’s power. I only wish our court system had more judges like Gottlieb, putting the brakes on outrageous government conduct.