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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



JAMES HOWARD SMITH, II,             )
                                    )
           Appellant,               )
                                    )
v.                                  )                   Case No. 2D14-3341
                                    )
SHANE WIKER,                        )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed May 25, 2016.

Appeal from the Circuit Court for Polk
County; Keith P. Spoto, Judge.

Matthew A. Leibert of Urban Thier Federer
& Chinnery, P.A., Orlando, for Appellant.

Robert H. Grizzard, II of Robert H.
Grizzard, II, P.A., Lakeland, for Appellee.


SILBERMAN, Judge.

                James Howard Smith, II, appeals a final judgment of injunction for

protection against stalking entered in favor of Shane Wiker (the neighbor). We affirm

without comment the final judgment in its entirety except for one provision. We reverse

the portion of the injunction that prohibits Smith from lingering on his driveway and

remand for the trial court to more narrowly tailor the provision to prevent harassment of

the neighbor.
              The injunction prohibits Smith from going within 500 feet of the neighbor's

residence but also includes the following provision: "The Respondent may travel on his

driveway to enter and leave his property but may not linger on his driveway. The

Respondent is permitted to continue to live in his home but shall have no contact w/the

Petitioner." The injunction also requires Smith to remove the cameras bordering the

neighbor's property within ten days and allows Smith to be on his driveway for that ten-

day period in order to comply with the injunction.

              Smith argues that the order to not linger on his driveway prohibits him

from engaging in lawful conduct on his own property and violates his fundamental right

under article I, section 2, of the Florida Constitution to acquire, possess, and protect

property. Smith argues that it is axiomatic that he may not use his property to stalk

anyone but that he may use his property for any lawful purpose. Smith contends that

the trial court could have ordered Smith to not perform any act on his property that was

harassing to the neighbor and that a narrower order would have been the least

restrictive means of affecting Smith's property rights.

              "Property rights are among the basic substantive rights expressly

protected by the Florida Constitution." Dep't of Law Enf't v. Real Prop., 588 So. 2d 957,

964 (Fla. 1991) (citing Art. I, § 2, Fla. Const.). In granting an injunction for protection

against stalking, the trial court may restrain an individual "from committing any act of

stalking" and order "such other relief as the court deems necessary for the protection of

a victim of stalking." § 784.0485(6)(a)(1), (6)(a)(4), Fla. Stat. (2013). However, a court

should not issue an injunction broader than necessary to protect the injured party under

the particular circumstances. Clark v. Allied Assocs., Inc., 477 So. 2d 656, 657 (Fla. 5th




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DCA 1985). "The order should be adequately particularized, especially where some

activities may be permissible and proper." Id.; see also Brower v. Hubbard, 643 So. 2d

28, 30 (Fla. 4th DCA 1994) ("Injunctions must be specifically tailored to each case; they

should not infringe upon conduct that does not produce the harm sought to be

avoided.").

              In Brower, a case dealing with restrictive covenants, the trial court

enjoined the appellants from making any amateur radio transmissions from their

residence. 643 So. 2d at 30. The appellate court determined that the injunction was

overbroad because it prohibited "all radio transmissions, regardless of whether they

interfered with the [neighbors'] electronic devices." Id. And, in Leesburg Humane

Society, Inc. v. Kauffman, 546 So. 2d 1161 (Fla. 5th DCA 1989), involving an action

contesting setback variances, a temporary injunction prohibited the appellant from

making any further improvements on his property pending completion of the litigation.

The Fifth District determined that the injunction was overbroad and remanded for the

trial court "to amend the temporary injunction in such manner as will not prohibit the

appellant from making lawful improvements to its property which do not rely on the

setback variances." Id. at 1161-62.

              Courts have also found injunctions to be overbroad in cases dealing with

stalking. In Webb v. Jacobson, 175 So. 3d 938, 939 (Fla. 5th DCA 2015), the Fifth

District determined that an injunction for protection against stalking was overbroad and

remanded for the trial court to narrow it when the injunction prohibited the appellant

from accessing any social media website. See also Neptune v. Lanoue, 178 So. 3d

520, 522 (Fla. 4th DCA 2015) (directing in a cyberstalking case that a portion of an




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injunction that "paint[ed] with unduly broad strokes on a very large canvas" be more

narrowly tailored when the injunction prohibited the appellant from posting on the

Internet at all regarding a police officer).

              Here, the prohibition that Smith not linger on his driveway is overbroad

because it encompasses conduct that could constitute stalking by harassing the

neighbor but could also encompass activity that is perfectly legal. For instance, Smith

asserts that he is required to maintain his yard and his driveway and control plant

growth. Or he could simply choose to sit on his driveway and read a book. Because

the challenged language broadly prohibits Smith from engaging in legal activity on his

property, we reverse the portion of the injunction prohibiting Smith from lingering on his

driveway and remand with directions for the trial court to more narrowly tailor the

provision to prevent harassment of the neighbor.

              Affirmed in part, reversed in part, and remanded.



MORRIS and BADALAMENTI, JJ., Concur.




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