Smith v. Wiker , 2016 Fla. App. LEXIS 7882 ( 2016 )

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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