              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT



STATE OF FLORIDA,                          )
                                           )
             Appellant,                    )
                                           )
v.                                         )      Case No. 2D14-2679
                                           )
JOSEPH LLOYD COTTON,                       )
                                           )
             Appellee.                     )
                                           )

Opinion filed February 26, 2016.

Appeal from the County Court for
Manatee County; Robert A. Farrance,
Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Dawn A. Tiffin and
Marilyn Muir Beccue, Assistant Attorneys
General, Tampa, for Appellant.

F. Wallace Pope, Jr., Robert V. Potter,
Jr., and Caitlein J. Jammo of Johnson,
Pope, Bokor, Ruppel & Burns, LLP,
Clearwater, for Amicus Curiae
Community Campaign Against Human
Trafficking – West Florida, Inc. and
International Association of Human
Trafficking Investigators.

Chris M. Pratt and Tracy B. Pratt,
Palmetto; and Mark Lipinski, Bradenton,
for Appellee.
Sonya Rudenstine, Gainesville; and
Karen Gottlieb, Coconut Grove, for
Amicus Curiae Florida Association of
Criminal Defense Lawyers.


BLACK, Judge.

              The State appeals a county court order finding section 796.07(6), Florida

Statutes (2013), unconstitutional. Because we conclude that the statute is not facially

unconstitutional and that the $5000 fine is not excessive or "grossly disproportional" as

applied in this case, we reverse.

I.     Background

              Joseph Cotton entered a plea of nolo contendere to a violation of section

796.07(2)(f), solicitation of prostitution. Because this was Cotton's first violation, his

crime is a second-degree misdemeanor. See § 796.07(4)(a). 1 The trial court withheld

adjudication, sentenced him to six months of probation, ordered him to complete twenty-

five hours of public service work within five months, and ordered him to submit to a

sexually transmitted disease screening within thirty days. Cotton was also assessed a

$5000 civil penalty pursuant to section 796.07(6).

              Prior to entering his plea, Cotton filed a motion to declare section

796.07(6) unconstitutional. In his motion, he contended that the $5000 penalty is an

excessive fine in violation of the Excessive Fines Clause in both the United States and




              1
               During the pendency of this appeal, effective October 1, 2015, section
796.07(4) was amended to, among other things, make a first violation of section
796.07(2)(f) a first-degree misdemeanor. Ch. 2015-145, § 1, Laws of Fla.



                                             -2-
Florida Constitutions. 2 See U.S. Const. amend. VIII; art. 1, § 17, Fla. Const. Following

the acceptance of Cotton's plea and the imposition of his sentence, Cotton presented

his argument, sought a declaration that section 796.07(6) is unconstitutional both

facially and as applied to him, and requested an order striking the $5000 penalty.

              The trial court granted the motion, found the statute unconstitutional, and

struck the penalty. The court found the fine at issue is "excessive, unduly oppressive,

and unreasonably harsh, such that it would shock the conscience of reasonable men."

In its order, the court distinguished many of the cases provided by both Cotton and the

State, noting that unlike excessive forfeiture cases, section 796.07(6) requires

imposition of a fine in a predetermined amount regardless of the underlying facts of the

individual case. The trial court also certified a question of great public importance to

this court, which we restate as:

              WHETHER THE $5000 FINE MANDATED BY SECTION
              796.07(6), FLORIDA STATUTES (2013), FOR A FIRST
              VIOLATION OF SECTION 796.07, A SECOND-DEGREE
              MISDEMEANOR, IS AN EXCESSIVE FINE IN LIGHT OF
              THE NATURE AND GRAVITY OF THE CRIMINAL
              OFFENSE BEING PUNISHED.

              The State appeals the court's ruling. See Fla. R. App. P. 9.030(b)(1)(A)

(invoking the appeal jurisdiction of this court to review county court final orders declaring

a state statute unconstitutional). 3 The State initially challenged the trial court's implicit



              2
              Cotton's motion also included the statement that "[t]he distribution of the
$5000 civil penalty funds is not reasonably related to the crime it is derived from."
              3
               The State contends that this court has discretionary jurisdiction pursuant
to Florida Rule of Appellate Procedure 9.030(4)(a), providing for review of final orders of
the county court "that the county court has certified to be of great public importance,"
and therefore our review is limited to the certified question. However, our review is
mandatory because the county court declared a statute invalid. See § 26.012, Fla. Stat.


                                              -3-
determination that the civil penalty is punitive in nature—making it subject to the

excessive fines analysis—along with the determination that the fine is unconstitutional.

However, at oral argument the State properly conceded that although the civil penalty

was apparently intended to be primarily remedial it is, in practice, punitive. Cf. Austin v.

United States, 509 U.S. 602, 622 n.14 (1993) ("[A] fine that serves purely remedial

purposes cannot be considered 'excessive' in any event."). We therefore refer to the

$5000 civil penalty as a fine, recognizing that it is punitive and therefore subject to an

Excessive Fines Clause analysis. See also State v. Jones, No. 4D14-3019, 2015 WL

7752702, at *2 (Fla. 4th DCA Dec. 2, 2015) ("[I]n this case the civil penalty is subject to

the Excessive Fines Clause because it constitutes a punishment for the crime of

solicitation of prostitution.").

II.    Statute

               Section 796.07, under which Cotton was charged and convicted, prohibits

prostitution and related acts, including offering another person for the purpose of

prostitution; engaging in prostitution; soliciting another to commit prostitution;

purchasing the services of a person engaged in prostitution; and aiding or participating

in any of the prohibited acts enumerated within the statute. § 796.07(2)(b), (e), (f), (i),

(h). Section 796.07(4) delineates the level of offense committed depending on whether

it is the defendant's first, second, or third or subsequent violation. Under the 2013




(2014); Fla. R. App. P. 9.030(b)(1)(A). Moreover, even if our jurisdiction were
discretionary, the State fails to recognize that rule 9.160(f), governing our scope of
review in discretionary proceedings to review county court decisions, expressly provides
that upon acceptance of such appeal, this court "will decide all issues that would have
been subject to appeal if the appeal had been taken to the circuit court." Fla. R. App. P.
9.160(f)(1).


                                             -4-
version of the statute, a first violation of any provision of the statute is a second-degree

misdemeanor, a second violation is a first-degree misdemeanor, and a third or

subsequent violation is a third-degree felony, regardless of which subsection is violated.

§ 796.07(4)(a), (b), (c). A defendant convicted of a violation of section 796.07(2)(f),

prohibiting solicitation, inducement, enticement, or procurement of another person to

commit prostitution, lewdness, or assignation—regardless of the degree of the

offense—must be assessed the $5000 fine. 4 § 796.07(6). That is, no matter whether

the defendant committed a third-degree felony or a second-degree misdemeanor

solicitation violation, the court is required to impose the $5000 fine.

              Prior to January 1, 2013, section 796.07(6) mandated the imposition of a

$500 fine for violations of section 796.07(2)(f). In 2012 the legislature adopted an

amendment to the statute to increase the fine from $500 to $5000. Ch. 2012-105, § 7,

Laws of Fla. The increased fine was part of the Florida Safe Harbor Act, which was

"intended to provide a more coordinated response to address the child welfare services

needs of sexually exploited children who are dependent." Fla. S. Budget Comm.,

Budget subcomm. on Criminal and Civil Justice Appropriations; Children, Families, and

Elder Affairs Comm., CS for SB 202 (2012), Staff Analysis 1 (March 3, 2012). The 2013

statute mandates that the first $500 of the fine be used to pay administrative costs of

treatment-based drug court programs and the remaining $4500 be used for funding safe

houses and safe foster homes for sexually exploited children. 5



              4
                  Interestingly, there is no fine for violations of the other provisions of the
statute.
              5
               The Act is specific to sexually exploited children and "[i]ncreases the civil
penalty for crimes related to prostitution from $500 to $5,000." Staff Analysis, supra, at


                                                -5-
III.   Discussion

              The Eighth Amendment to the United States Constitution provides:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted." U.S. Const. amend. VIII. The Florida Constitution also

similarly forbids excessive fines. Art. I, § 17, Fla. Const. ("Excessive fines, cruel and

unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and

unreasonable detention of witnesses are forbidden."). However, there is a "dearth of

caselaw" applying these prohibitions on excessive fines. Gordon v. State, 139 So. 3d

958, 960 (Fla. 2d DCA 2014) (citing United States v. Bajakajian, 524 U.S. 321, 327

(1998)). This is particularly true outside of the context of forfeitures. Cf. Bajakajian, 524

U.S. at 327 (stating—in the forfeiture context—that the Court "has had little occasion to

interpret, and has never actually applied, the Excessive Fines Clause").

              In undertaking our de novo review of the constitutionality of the statute at

issue, we are mindful of two touchstones of the inquiry before us: "the principle of

proportionality," Bajakajian, 524 U.S. at 334, and our "obligat[ion] to accord legislative

acts a presumption of constitutionality," State v. Adkins, 96 So. 3d 412, 416-17 (Fla.

2012) (quoting Fla. Dep't of Revenue v. City of Gainesville, 918 So. 2d 250, 256 (Fla.

2005)). "A defendant who challenges the constitutional validity of a statute bears a



2. Effective October 1, 2014, those sections of chapter 796 pertaining to child-related
prostitution crimes were repealed. Ch. 2014-160, § 10, Laws of Fla. Section 796.001
was added and provides that "[i]t is the intent of the [l]egislature that adults who involve
minors in any behavior prohibited under this chapter be prosecuted under other laws of
this state, such as, but not limited to, s. 787.06, chapter 794, chapter 800, s. 810.145,
chapter 827, and chapter 847. The [l]egislature finds that prosecution of such adults
under this chapter is inappropriate since a minor is unable to consent to such behavior."
Ch. 2014-160, § 9, Laws of Fla. The fine remains.



                                            -6-
heavy burden of establishing its invalidity." Wright v. State, 739 So. 2d 1230, 1231 (Fla.

1st DCA 1999) (citing Milliken v. State, 131 So. 2d 889, 892 (Fla. 1961)). And "[e]ven in

those few Florida cases which have considered the intention and application of the

excessive punishments provision as applied to 'fines,' there is a 'strong presumption that

the amount of a fine is not unconstitutionally excessive if it lies within the range of fines

prescribed by the legislature.' " Browning v. Angelfish Swim Sch., Inc., 1 So. 3d 355,

359 (Fla. 3d DCA 2009) (quoting Moustakis v. City of Ft. Lauderdale, No. 08-60124,

2008 WL 2222101, at *1 (S.D. Fla. May 27, 2008)). Further, "reviewing court[s] should

grant substantial deference to the legislature's determination of the appropriate

punishment for an offense." Riopelle v. Dep't of Fin. Servs., 907 So. 2d 1220, 1223

(Fla. 1st DCA 2005) (citing Bajakajian, 524 U.S. at 336).

              "Well-settled Florida decisional authority provides that a statutorily

authorized civil fine will not be deemed so excessive as to be cruel or unusual unless it

is so great as to shock the conscience of reasonable men or is patently and

unreasonably harsh or oppressive." Locklear v. Fla. Fish & Wildlife Conservation

Comm'n, 886 So. 2d 326, 329 (Fla. 5th DCA 2004) (citing Amos v. Gunn, 94 So. 615

(Fla. 1922)); accord Moustakis, 2008 WL 2222101, at *1; see also State v. Jackson, 417

So. 2d 1097, 1098 (Fla. 4th DCA 1982) ("With respect to appellee's excessive fine

argument, the standard to be applied was enunciated by the Florida Supreme Court in

Amos . . . [that] 'the courts will not declare a statutory fine to be excessive in violation of

the Constitution unless it is plainly and undoubtedly in excess of any reasonable

requirements for redressing the wrong.' This standard was later clarified in State v.

Champe, 373 So. 2d 874, 879 (Fla. 1979) wherein the [c]ourt stated, '. . . the




                                             -7-
[l]egislature is free to set civil fines and penalties in amounts which are not so excessive

as to be cruel or unusual . . . .' "). The requirement that a fine "shock the conscience of

reasonable men" or be "patently and unreasonably harsh or oppressive" before it can

be declared excessive subsumes the principle of proportionality because it necessarily

incorporates consideration of whether the fine "is plainly and undoubtedly in excess of

any reasonable requirements for redressing the wrong," see Amos, 94 So. at 641, or

whether it "is reasonably and uniformly proportionate to the gravity of the offense, and

therefore constitutionally sound," see Champe, 373 So. 2d at 880. See also Gordon,

139 So. 3d at 960 (applying the proportionality-based forfeiture excessiveness factors in

a pure excessive fines context).

                      A facial constitutional challenge considers only the
              text of the statute, not its application to a particular set of
              circumstances. Abdool v. Bondi, 141 So. 3d 529, 538 (Fla.
              2014). A determination that a statute is facially
              unconstitutional means that no set of circumstances exists
              under which the statute would be valid. United States v.
              Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d
              697 (1987); [Fla. Dep't of Revenue v.] City of Gainesville,
              918 So. 2d [250,] 256 [Fla. 2005]. "If any state of facts,
              known or to be assumed, justify the law, the court's power of
              inquiry ends." State v. Bales, 343 So. 2d 9, 11 (Fla. 1977)
              (citing United States v. Carolene Prods. Co., 304 U.S. 144,
              154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938)). A facial
              challenge fails when a statute has a "plainly legitimate
              sweep." Wash. State Grange v. Wash. State Republican
              Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 170 L. Ed. 2d 151
              (2008) (citation omitted).

Smalley v. Duke Energy Fla., Inc., 154 So. 3d 439, 441 (Fla. 2d DCA 2014). "A facial

challenge considers only the text of the statute, not its application to a particular set of

circumstances, and the challenger must demonstrate that the statute's provisions pose

a present total and fatal conflict with applicable constitutional standards." In re Senate




                                             -8-
Joint Resolution of Legislative Apportionment 1176, 83 So. 3d 597, 690 (Fla. 2012)

(quoting Ogborn v. Zingale, 988 So. 2d 56, 59 (Fla. 1st DCA 2008)). "A facial challenge

to a statute is more difficult than an 'as applied' challenge because the challenger must

establish that no set of circumstances exists under which the statute would be valid."

DIRECTV, Inc. v. State, Dep't of Revenue, 40 Fla. L. Weekly D1375, D1376 (Fla. 1st

DCA June 11, 2015) (quoting Cashatt v. State, 873 So. 2d 430, 434 (Fla. 1st DCA

2004)).

              Section 775.083(1), Florida Statutes (2013), provides a reference point for

fines in criminal proceedings. The statutorily designated fines "shall not exceed" $5000

for a third-degree felony conviction, $1000 for a first-degree misdemeanor conviction,

and $500 for a second-degree misdemeanor conviction. § 775.083(1)(c), (d), (e).

However, section 775.083(1)(g) also authorizes "higher amount[s] specifically

authorized by statute." A fine within the permissible range otherwise authorized by the

legislature is presumptively constitutional. See United States v. Chaplin's, Inc., 646

F.3d 846, 852 (11th Cir. 2011) (discussing forfeitures and stating that "[t]he Sentencing

Guidelines reflect institutional expertise and monetize culpability 'with even greater

precision than criminal legislation'; 'a defendant would need to present a very

compelling argument' to suggest that a forfeiture within the guideline range is

constitutionally excessive" (quoting United States v. 817 N.E. 29th Drive, Wilton

Manors, Fla., 175 F.3d 1304, 1310 (11th Cir.1999))); see also Agresta v. City of

Maitland, 159 So. 3d 876, 878 (Fla. 5th DCA 2015) ("[C]onsideration of the fines

approved by the legislature indicates the monetary value society places on the harmful

conduct."). The $5000 fine imposed by section 796.07(6) is constitutional as to third or




                                           -9-
subsequent violations of the prostitution solicitation statute because they are third-

degree felonies. And as a result, the statute cannot be facially unconstitutional. See

Smalley, 154 So. 3d at 441. Moreover, caselaw supports the "constitutional propriety"

of fines that double and treble the amount of money involved in a violation of the law.

See, e.g., Baeumel v. State, 7 So. 371, 373 (Fla. 1890); Ferre v. State, 478 So. 2d

1077, 1083 (Fla. 3d DCA 1985).

              Cotton's challenge to the constitutionality of the fine as applied to Cotton,

while a closer issue, also fails. As in the forfeiture context, fines of a greater amount

than authorized by section 775.083 should receive closer scrutiny. See Chaplin's, 646

F.3d at 852 (discussing scrutiny in forfeiture cases). While there is no bright-line ratio to

determine whether a fine is excessive, strict proportionality is not the standard. See

Bajakajian, 524 U.S. at 336. Under the proportionality analysis, we must consider the

nature of the criminal offense being punished and whether the $5000 fine exceeds "any

reasonable requirements for redressing the wrong." See Amos, 94 So. at 641. Even

under such careful consideration, Cotton has not established that the fine, as applied to

him, rises to the level required to be deemed unconstitutional.

              The fine at issue is part of the statute prohibiting prostitution and related

acts. § 796.07. "Forty-nine of the fifty states today prohibit all sales of sexual services.

The federal government acknowledges the link between prostitution and trafficking in

women and children, a form of modern day slavery." Coyote Publ'g, Inc. v. Miller, 598

F.3d 592, 600 (9th Cir. 2010) (citing U.S. Department of State, The Link Between

Prostitution and Sex Trafficking (November 24, 2004)). "Solicitation of prostitution,

lewdness, public indecency, and other sexual vice crimes of the types material to the




                                           - 10 -
subject litigation may impact adversely the health, safety, welfare, and morals of the

affected neighborhood and the larger community." Ross v. Duggan, 113 Fed. App'x 33,

45 (6th Cir. 2004) (unpublished).

              While section 796.07(4)(a) provides that a first-time violator of the statute

commits a second-degree misdemeanor and may therefore be sentenced up to sixty

days in jail or placed on probation for up to six months, see §§ 775.082(4)(b), 948.15(1),

Fla. Stat. (2013), the adverse impact of vice crimes on the community is recognized, in

part, by the imposition of fines up to the amount in question here, see Jones, 2015 WL

7752702, at *3. See also Milwaukee, Wisc., Ordinance 106–35(2) (2014) (providing

that "[a]ny person who loiters or drives in any public place in a manner and under

circumstances manifesting the purpose of inducing, enticing, soliciting or procuring

another to commit an act of prostitution shall forfeit not less than $500 nor more than

$5,000 or upon default of payment be imprisoned for not more than 80 days"). And as

the Fourth District did in Jones, we conclude that the degree of the crime is not

dispositive. See Jones, 2015 WL 7752702, at *3. Other second-degree misdemeanors

carry fines or civil penalties of up to $5000. See, e.g., § 310.161(2), Fla. Stat. (piloting

without a license); §§ 373.430(4), 403.161(4), Fla. Stat. (prohibiting pollution resulting in

harm or injury due to reckless indifference or gross careless disregard); § 483.23(1)(b),

Fla. Stat. (operating a clinical laboratory without a license).

              The legislature has determined that a $5000 fine is appropriate, and we

give substantial deference to that determination. We do not view the $5000 fine as

patently oppressive or grossly disproportionate as applied to Cotton. See Jones, 2015

WL 7752702, at *3; Ross, 113 Fed. App'x at 46 (concluding that the fines and fees




                                            - 11 -
imposed were constitutional where underlying law prohibited solicitation of prostitution);

cf. One 1995 Toyota Pick-Up Truck v. Dist. of Columbia, 718 A.2d 558, 565-66 (D.C.

1998) (concluding in the forfeiture context that a penalty "on the order of fifty times the

fine authorized" was grossly disproportionate and excessive). But see Dep't of Envtl.

Prot. v. Zabielinski, 785 So. 2d 517, 520 (Fla. 3d DCA 2000) (concluding in the forfeiture

context that a fine was excessive where fraudulently registering a vessel "is not as

grave as other offenses, for example drug offenses," and "the vessel is valued [at]

$60,000 which is more than eleven times the amount of the fine that could have been

imposed"). We agree with the State's assessment that the fine is a "relatively modest

amount by today's standards."

IV.    Conclusion

              "Outside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare." Adaway v. State,

902 So. 2d 746, 748 (Fla. 2005) (quoting Hall v. State, 823 So. 2d 757, 760 (Fla. 2002)).

Although as applied to Cotton, the $5000 fine approaches the outer limits of

constitutionality, we do not find it to be excessive. Accordingly, we answer the certified

question in the negative and we reverse the county court order finding section 796.07,

Florida Statutes (2013), unconstitutional and remand for imposition of the $5000 fine.

              Reversed and remanded.



CASANUEVA and NORTHCUTT, JJ., Concur.




                                           - 12 -
