When is a Law Unconstitutionally Vague in Florida?

June 20, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

In Florida, statutes and ordinances are presumed constitutional. But under limited circumstances, laws in the state have been successfully challenged on the basis that they are unconstitutionally vague. This is because laws must be written clearly enough for ordinary people to understand which conduct is prohibited by the statute, and police must have clear standards for enforcement of laws.

This raises the question – when is a law considered unconstitutionally vague? This article will explain vagueness as a constitutional concept and what Florida courts, and the U.S. Supreme Court, have ruled regarding when a statute may be struck down for unconstitutional vagueness. 

The vagueness doctrine is grounded in the Due Process Clause of the Fourteenth Amendment and Article I, Section 9 of the Florida Constitution. The vagueness doctrine states that a law is unconstitutionally vague if one of the two following facts (or both) are true of it:

• It fails to give ordinary people fair notice of what conduct is prohibited, or
• It invites arbitrary or discriminatory enforcement by failing to set clear standards for law enforcement and courts

The U.S. Supreme Court formalized this doctrine in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). There, the Court struck down a Florida vagrancy statute as unconstitutionally vague for criminalizing “loitering” and “wandering” without clear standards to prevent the law’s arbitrary enforcement. 

Florida’s courts have similarly struck down laws on the basis of vagueness. State v. Brake, 796 So. 2d 522 (Fla. 2001). In Brake, the Florida Supreme Court heard a challenge to a law that made it a felony to “intentionally lure or entice a child under 12 years of age into a structure, dwelling or conveyance” for “other than a lawful purpose.”

Brake appealed his conviction for violating this law, arguing the statute was too open-ended to enforce in line with Papachristou. The Florida Supreme Court agreed with him, implementing a two-prong test to determine whether a law is unconstitutionally vague:

• Does the law provide sufficient notice to a person of ordinary intelligence so they can understand what is prohibited?
• Does the law provide explicit standards for those who enforce it, to prevent arbitrary application?

If the answer to either of these questions is no, in accordance with Papachristou, the statute will be recognized as unconstitutional. 

Moreover, a statute is void for vagueness in Florida when people of “common intelligence” must guess as to its meaning and differ as to its application, or if it lends itself to arbitrary enforcement of the law at an officer’s discretion. Davis v. Gilchrist County Sheriff’s Office, 280 So.3d 524 (Fla. 1st DCA 2019)

The objection of vagueness to a law is two-fold – in that it provides inadequate guidance to the individual whose conduct is regulated and inadequate guidance to the triers of fact. City of West Palm Beach v. Chatman, 112 So.3d 723 (Fla. 4th DCA 2013)

To avoid being struck down on vagueness grounds, a law in Florida must be sufficiently clear so that individuals can understand what the law is without having to speculate about its meaning. If the statute is so vague and uncertain that nobody can say with certainty what the law precisely is and what it regulates, it must be held unconstitutional. Imhotep-Nguzo Saba Charter School v. Department of Educ., 947 So.2d 1279 (Fla. 4th DCA 2007)

But to be void for vagueness, a statute must be impermissibly vague in every possible application. Put differently, if there exists any circumstance in which the statute can be reasonably and constitutionally applied, then the statute must not be struck down on a facial vagueness challenge. Surit-Garcias v. State, 391 So.3d 921 (Fla. 4th DCA 2024)

Challenges for vagueness can either be facial or as-applied. A facial challenge argues a statute is unconstitutionally vague in all applications. This means the law is so unclear and indefinite that by reading it, nobody can truly understand what is being prohibited – regardless of the circumstances. To bring a successful facial vagueness challenge of a law:

• The challenger must show that the law fails to provide notice and invites arbitrary enforcement in every conceivable situation
• There is no reasonable and constitutional application of the statute

A practical example would be the criminalization of “annoying conduct.” Because there is no way to apply this phrase objectively, such a law would be ripe for a facial vagueness challenge. Under normal circumstances, however, such challenges are very difficult to mount successfully. United States v. Salerno, 481 U.S. 739 (1987)

As-applied challenges are more common, and more likely to succeed. This is because an as-applied challenge argues the statute was vague as applied to the specific conduct of a defendant, though it may be valid in other contexts. For an as-applied vagueness challenge to succeed, the defendant must establish:

• The law did not provide fair notice that their specific behavior was prohibited, or
• The law allowed police to apply it arbitrarily in that specific instance

An example would be if someone was arrested for “loitering with intent to commit a crime” when they were simply standing outside a store with no suspicious behavior. While someone could feasibly commit this offense as it is defined, a lack of suspicious behavior in a particular case may be grounds for an as-applied vagueness challenge, as law enforcement mistakenly interpreted innocuous conduct as criminal. 

In sum, a law is unconstitutionally vague in Florida if it does not provide sufficient notice to a person of ordinary intelligence so they can understand what is prohibited by it, or if the law fails to provide explicit standards for those who enforce it to prevent arbitrary application. 

A defendant can make two types of vagueness challenges – facial and as-applied. To prove a law is facially unconstitutional for vagueness, the above standard must be satisfied (Brake).

 An as-applied challenge, by contrast, required the defendant to show that the law’s vagueness swept noncriminal conduct under the umbrella of criminality in a specific case. An as-applied challenge may succeed in defeating charges in a specific instance, but the challenged law will remain in effect. 

If someone is arrested and formally charged in Florida in a case involving potential charges under an unconstitutionally vague statute, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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