LABARGA, J.
This case is before the Court on appeal from a decision of the Second District Court of Appeal, State v. Catalano, 60 So.3d 1139 (Fla. 2d DCA 2011), which declared section 316.3045, Florida Statutes (2007), to be invalid. We have jurisdiction.
Richard Catalano (Catalano) and Alexander Schermerhorn (Schermerhorn) were cited by law enforcement officers in separate incidents in Pinellas County, Florida, for violating the sound standards of section 316.3045(1)(a), Florida Statutes (2007). Catalano, 60 So.3d at 1141.
§ 316.3045, Fla. Stat. (2007).
As required by subsection (4), the Department of Highway Safety and Motor Vehicles (DMV) promulgated the following rule:
Fla. Admin. Code R. 15B-13.001 (2011). Both Catalano and Schermerhorn entered not guilty pleas and moved to dismiss their citations in county court, arguing that section 316.3045 is facially unconstitutional. The county court denied their respective motions based on the Fifth District's decision in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998), which found section 316.3045, as originally written prior to the 2005 amendment, constitutional. Catalano, 60 So.3d at 1142.
Thereafter, Catalano and Schermerhorn changed their pleas to nolo contendere, reserving the right to appeal the constitutionality of section 316.3045. The county court accepted their pleas and withheld adjudication. Each then appealed to the circuit court of Pinellas County, arguing that section 316.3045 is facially unconstitutional because the "plainly audible" standard is vague, overbroad, invites arbitrary enforcement, and impinges on their free speech rights. The circuit court issued virtually identical opinions holding that the decision in Davis conflicts with the Second District's decision in Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863, 867 (Fla. 2d DCA 1996), which held that a county's general sound ordinance's "plainly audible" standard was unconstitutionally vague and overbroad. Catalano, 60 So.3d at 1143-44. Accordingly, bound by the decision in Easy Way, the circuit court reversed the trial court's orders denying the motions to dismiss the citations.
Subsequently, the State filed a petition for writ of certiorari in the Second District Court of Appeal, arguing that the circuit court departed from the essential requirements of law because section 316.3045 comports with free speech rights, does not invite arbitrary enforcement, is not vague, overbroad, or content based, and the circuit court failed to follow Davis, which upheld the constitutionality of section 316.3045. The Second District denied the State's petition for certiorari relief, holding that the circuit court did not depart from the essential requirements of the law in applying the binding Second District precedent of Easy Way, which held that the "plainly audible" standard of a noise ordinance was unconstitutional.
The State appealed the declaration of invalidity of section 316.3045 and asks this Court to determine whether: (a) the statutory "plainly audible" standard in section
A court's decision regarding the constitutionality of a statute is reviewed de novo as it presents a pure question of law. See Caribbean Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So.2d 492, 500 (Fla.2003). There is a strong presumption that a statute is constitutionally valid, and all reasonable doubts about the statute's validity must be resolved in favor of constitutionality. See DuFresne v. State, 826 So.2d 272, 274 (Fla. 2002). "This Court has noted, however, that in a vagueness challenge, any doubt as to a statute's validity should be resolved in favor of the citizen and against the State." Id. (citing State v. Brake, 796 So.2d 522, 527 (Fla.2001)). Accordingly, in order to withstand such a challenge, a statute must provide persons of common intelligence and understanding adequate notice of the proscribed conduct. Id. at 527. As we explain below, we find that section 316.3045(1)(a), which prohibits the amplification of sound from within a vehicle so that it is "plainly audible" beyond twenty-five feet, is not unconstitutionally vague.
When considering the constitutionality of a statute, we first look at the language of the statute itself. See State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996); Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). Specifically, section 316.3045(1)(a) states as follows:
§ 316.3045, Fla. Stat. (2007). Catalano and Schermerhorn argue that the "plainly audible" language is unconstitutionally vague on its face because whether a police officer can hear amplified sound beyond twenty-five feet is necessarily subject to each particular police officer's auditory faculties, leading to arbitrary enforcement based on whether a police officer personally
To withstand constitutional scrutiny, however, statutes do not have to set determinate standards or provide mathematical certainty. See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (observing that we cannot expect mathematical certainty from the use of words); Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (explaining that the English language has limitations with respect to being both specific and brief, but noting that statutes must set out standards in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest). Applying the rationale from Grayned and Broadrick, the "plainly audible" standard provides persons of common intelligence and understanding adequate notice of the proscribed conduct: individuals operating or occupying a motor vehicle on a street or highway in Florida cannot amplify sound so that it is heard beyond twenty-five feet from the vehicle. Although it is true that each police officer may have different auditory sensitivities, the "plainly audible" beyond twenty-five feet standard provides fair warning of the prohibited conduct and provides an objective guideline — distance — to prevent arbitrary and discriminatory enforcement so that basic policy matters are not delegated to policemen, judges, and juries for resolution on an ad hoc and subjective basis. See Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294. This is not a standard that calls for police officers to judge whether sound is excessive, raucous, disturbing, or offensive; if the officer can hear the amplified sound more than twenty-five feet from its source, the individual has violated the statute.
Indeed, several jurisdictions both in Florida and around the country have upheld similar statutes in the face of vagueness challenges. See, e.g., Montgomery v. State, 69 So.3d 1023, 1032 (Fla. 5th DCA 2011) (holding section 316.3045(1)(a) is not unconstitutionally vague, but finding the statute unconstitutionally overbroad as an impermissible content-based restriction); Davis v. State, 710 So.2d 635, 636 (Fla. 5th DCA 1998) (upholding pre-2005 amendment version of section 316.3045(1)(a), which required that amplified sound be plainly audible more than one-hundred feet from the vehicle, as not unconstitutionally vague); State v. Medel, 139 Idaho 498, 80 P.3d 1099, 1103 (Ct.App. 2003) (upholding ordinance as not unconstitutionally vague where it prohibited operating a vehicle's sound system so that it is audible at a distance of fifty feet); Davis v. State, 272 Ga. 818, 537 S.E.2d 327, 328-29 (2000) (finding that a statute which prohibits amplified sound from a vehicle which is "plainly audible" at 100 feet is not vague and stating that it would belie credibility to find that persons of ordinary intelligence do not know what it means for amplified sound to be "plainly audible" at a distance greater than one-hundred feet); People v. Hodges, 70 Cal.App.4th 1348, 83 Cal.Rptr.2d 619, 622 (1999) (ordinance prohibiting a vehicle's sound system from operating where it could be heard twenty-five feet away not unconstitutionally vague); Moore v. City of Montgomery, 720 So.2d 1030, 1032 (Ala.Crim.App.1998) (holding ordinance that prohibited sound audible five feet from vehicle not unconstitutionally vague and stating that finding otherwise belies credibility); Holland v. City of Tacoma, 90 Wn.App. 533, 954 P.2d 290, 295 (1998), review denied, 136 Wn.2d 1015,
The overbreadth doctrine applies when legislation criminalizes constitution-ally protected activities along with unprotected activities, by sweeping too broadly and infringing upon fundamental rights. See Firestone v. News-Press Publ'g Co., 538 So.2d 457, 459 (Fla.1989) (citing State v. Gray, 435 So.2d 816, 819 (Fla.1983)). In the context of the First Amendment, "[t]he overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); see City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985). The government may regulate expression only with narrow specificity. NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); see also Firestone, 538 So.2d at 459 ("Restrictions on first amendment rights must
Here, the State argues that Catalano and Schermerhorn do not have a constitutionally recognized right to play loud music, thus the statute is not subject to an overbreadth analysis. However, the right to play music, including amplified music, in public fora is protected under the First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 788-90, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (noting that regulation of amplified music in public park was protected by the First Amendment); Saia v. New York, 334 U.S. 558, 562, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948) ("The police need not be given the power to deny a man the use of his radio in order to protect a neighbor against sleepless nights."). This right, nevertheless, is subject to reasonable limitations on the time, place, and manner of the protected speech. Limitations are reasonable if they are "justified without reference to the content of the regulated speech, ... narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Ward, 491 U.S. at 791, 109 S.Ct. 2746. If the time, place, and manner of the limitations are content based, a strict standard of scrutiny is applied. See, e.g., Simmons v. State, 944 So.2d 317, 323 (Fla.2006).
"The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. 2746. If the government's purpose has no relation to the content of the speech, the statute will be deemed neutral even if the restriction affects some speakers or messages and not others. See id. Initially, it would appear that section 316.3045(1)(a) does not regulate expression based on the content of the message as it bans all amplified sound coming from within the interior of a motor vehicle that is "plainly audible" beyond twenty-five feet from the source. In short, the statute proscribes excessive sound emanating from vehicles on public thoroughfares. Subsection (3), however, excepts "motor vehicles used for business or political purposes, which in the normal course of conducting such business use [sound-making] devices" from this broad proscription.
The State argues that this exception is based on the type of vehicle, and not the content of the message, because these vehicles do not present the same safety and noise pollution concerns as other vehicles. Thus, according to the State, the justification for the differential treatment, and the statute as a whole, is content neutral. The regulation, however, treats commercial and political speech more favorably than noncommercial speech. Additionally, the statute does not have to intentionally suppress certain ideas to be constitutionally suspect as a content-based restriction. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)
The State argues that this statute serves the State's interest in traffic safety and protecting the public from excessively loud noise on public streets. Protecting the public from excessively loud noise is a compelling state interest. See Grayned, 408 U.S. at 116, 92 S.Ct. 2294 ("If overamplified loudspeakers assault the citizenry, government may turn them down.") (citing Kovacs, 336 U.S. at 80, 69 S.Ct. 448, and Saia, 334 U.S. at 562, 68 S.Ct. 1148). Traffic safety, however, which the State argues is the overarching purpose of the statute, is generally not considered a compelling state interest.
Even assuming the asserted interests are compelling, it is unclear how the statute advances those interests by allowing commercial and political speech at a volume "plainly audible" beyond twenty-five feet, but not allowing noncommercial speech to be heard at the same distance. See Montgomery, 69 So.3d at 1032 ("We fail to see how the interests asserted by the State are better served by the statute's exemption for commercial and political speech."). The State simply argues that noncommercial vehicles are more dangerous to the public because they are ubiquitous. This argument, however, fails to explain how a commercial or political vehicle amplifying commercial or political messages audible a mile away is less dangerous or more tolerable than a noncommercial vehicle amplifying a religious message audible just over twenty-five feet away from the vehicle. Further, the statute protects commercial speech to a greater degree than noncommercial speech; commercial speech, however, is generally afforded less protection. See U.S. v. Edge Broad. Co., 509 U.S. 418, 430, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993) (noting that commercial speech is afforded less protection than other forms of speech); see also Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477-78, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) ("Our jurisprudence has emphasized that `commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,'" quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978)). Accordingly, we find that the statute is an unreasonable restriction on First Amendment rights. Likewise, the restriction of the constitutionally protected right to amplify sound, despite the State's acknowledgement that this level of noise is tolerable and safe if the source is a commercial or political vehicle, is not narrowly tailored to achieve the government's interests in improving traffic safety and protecting the citizenry from excessive noise. Thus, we also find that the statute is unconstitutionally overbroad because it restricts the freedom of expression in a manner more intrusive than necessary. We now proceed with a discussion of whether severance of the offending provisions is an appropriate remedy in this situation.
"Severability is a judicially created doctrine which recognizes a court's obligation to uphold the constitutionality of legislative enactments where it is possible to remove the unconstitutional portions." Florida Dept. of State v. Mangat, 43 So.3d 642, 649 (Fla.2010) (citing Ray v. Mortham, 742 So.2d 1276, 1280 (Fla.1999)). It is "derived from the respect of the judiciary for the separation of powers, and is `designed to show great deference to the legislative prerogative to enact laws.'" Ray, 742 So.2d at 1280 (quoting Schmitt v. State, 590 So.2d 404, 415 (Fla.1991)). The portion of a statute that is declared unconstitutional will be severed if: "`(1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other, and (4) an act complete in itself remains after the invalid provisions are stricken.'" Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 518 (Fla.2008) (quoting Cramp v. Bd. of Pub. Instruction, 137 So.2d 828, 830 (Fla.1962)); see also Schmitt, 590 So.2d at 415. Here, the key determination is whether the overall
Section 316.3045(1)(a) prohibits individuals from amplifying sound inside their motor vehicles that is "plainly audible" more than twenty-five feet away from the vehicle. At first glance, the broad purpose of the statute could be accomplished absent the invalid provisions. The statute, however, was not intended to apply uniformly to all classes of vehicles or content; subsection (3) of the statute and legislative history clearly indicate that the Legislature intended to exempt commercial and political vehicles from the statute's proscription. Severing the provision from the statute would expand the statute's reach beyond what the Legislature contemplated. Accordingly, in striving to show great deference to the Legislature, this Court will not legislate and sever provisions that would effectively expand the scope of the statute's intended breadth.
Accordingly, for the reasons set forth above, we affirm the Second District's declaration that the statute is invalid. Section 316.3045(1)(a) is an unreasonable restriction on the freedom of expression and is unconstitutionally overbroad, but is not unconstitutionally vague. Additionally, we find that severance of the constitutionally infirm provisions is not an appropriate remedy.
It is so ordered.
PARIENTE, LEWIS, and PERRY, JJ., concur.
POLSTON, C.J. and CANADY, J., concur in result.
QUINCE, J., concurs in result only.