Miami-Dade County public defender tags ordinance as unconstitutional

Friday, November 13, 1998

The Miami-Dade County public defender this week asked the Florida Supreme Court to review a county ordinance forbidding minors from having spray-paint cans and wide-tipped markers when their parents aren't around.

Public Defender Bennett Brummer contends that, while the county drafted the law to combat graffiti, they made no mention of a minors' intent to use the forbidden material to make graffiti.

Such a law, Brummer and free-speech groups contend, violates the free-expression rights of minors.

“Since the ordinance specifically excepts possession of other types of paint materials, it is difficult to reconcile how such a restriction on expression can be justified,” Brummer wrote in his petition to the court. “If the prevention of graffiti is the goal, and graffiti can be made using a myriad of other materials, how does this restriction accomplish that goal?

“And how can the restriction balance out the inhibition on expression?” he asked.

The appeal to the Florida Supreme Court stems from the case of a 15-year-old boy who was arrested last year for keeping spray-paint cans and a marker in the trunk of his grandfather's car. A trial court found the boy guilty of violating the anti-graffiti ordinance, and the Third District Court of Appeal of Florida declined to hear the case.

According to court testimony, Miami police stopped the teenager as he was driving a car from a private school he attends. Police arrested the boy, identified in court as A.S., after a computer check revealed that he did not have a license.

Police impounded the car. During an inventory check, officers found four cans of Krylon spray paint, five paint-nozzle tips, a wide-tipped marker and 17 small stickers. Police charged the boy with violating an ordinance forbidding minors to have such supplies.

In court, the teenager testified that he had used the materials – with permission – to paint a mural at a Dade County middle school. The teenager did not challenge the driving-without-a-license charge.

David Greene, program director for the National Campaign for the Freedom of Expression, said a number of free-speech groups have filed an amicus brief on the teenager's behalf to encourage the court to review the case.

Greene said the law creates problems because it attaches no intent to the possession of the markers and spray paint cans. Even if minors have the art tools for legitimate purposes, the police may arrest them simply for possession.

“The law is analogous to criminalizing the possession of film in order to restrict child pornography,” Greene said. “This is a very classic overbreadth case.”