BARKETT, Chief Justice.
We have for review Wyche v. State, 573 So.2d 953 (Fla. 2d DCA 1991), in which the district court certified the following question as one of great public importance:
Is section 24-61, City of Tampa Code (1987), facially constitutional?
We have jurisdiction. We answer the certified question in the negative and quash the district court's decision as it relates to the loitering ordinance.
Art. V, § 3(b)(4), Fla. Const. Ms. Wyche died before this Court determined jurisdiction. We granted review because the case involves a certified question of great public importance.
Renetha C. Wyche was arrested after police observed her on a street corner in a skimpy outfit waving to passersby and entering a car that had pulled to the curb. She was convicted of loitering for the purpose of prostitution under section 24-61, City of Tampa Code (1987). On appeal, the district court affirmed the conviction and certified the question of the ordinance's facial constitutionality to this Court.
The ordinance provides as follows:
A. It is unlawful for any person in the city to:
. . . . .
10. Loiter, while a pedestrian or in a motor vehicle, in or near any thoroughfare or place open to the public in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act. Among the circumstances which may be considered in determining whether this purpose is manifested are: that such person is a known prostitute, pimp, sodomist, performer of fellatio, performer of cunnilingus, masturbator for hire or panderer and repeatedly beckons to, stops or attempts to stop, or engages passersby in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms or any bodily gesture for the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act. No arrest shall be made for a violation of this subsection unless the arresting officer first affords such person the opportunity to explain this conduct, and no one shall be convicted of violating this subsection if it appears at trial that the explanation given was true and disclosed a lawful purpose.
a. For the purpose of this subsection 10, a "known prostitute, pimp, sodomist, performer of fellatio, performer of cunnilingus, masturbator for hire or panderer is a person who, within one (1) year previous to the date of arrest for violation of this subsection, had within the knowledge of the arresting officer been convicted of violating any ordinance of the city or law of any state defining and punishing acts of soliciting, committing or offering or agreeing to commit prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act.
b. For the purpose of this subsection 10 and section 24-63, "any person" shall also include panderers or solicitors of sexual acts, commonly referred to as "johns" or "tricks," who loiter in a manner and under circumstances manifesting the purpose of participating in, procuring, purchasing or soliciting any sexual act for hire made illegal by state law. Among the circumstances which may be considered in determining whether this purpose is manifested are: that such person, while pedestrian or in a motor vehicle, repeatedly beckons to, attempts to stop, engages or attempts to engage in conversation with any person by hailing, waving of arms or any bodily gesture for the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution, sodomy, fellatio, cunnilingus, masturbation for hire, pandering, or other lewd or indecent act.
§ 24-61" (emphasis added).
We find the ordinance unconstitutional because it unnecessarily infringes on constitutional rights; it is too vague because a violation of the law is determined based on law enforcement officers' discretion; it violates substantive due process by punishing innocent activities; and it impermissibly provides a greater penalty than that imposed by state statutes for similar criminal conduct.
We decline to address the other issues raised by Wyche.
The First Amendment to the United States Constitution and article I, section 4 of the Florida Constitution protect the rights of individuals to express themselves in a variety of ways. The constitutions protect not only speech and the written word, but also conduct intended to communicate. See, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). Further, the First Amendment and article I, section 5 of the Florida Constitution protect the rights of individuals to associate with whom they please and to assemble with others for political or for social purposes. See, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); State v. Dodd, 561 So.2d 263 (Fla. 1990).
When lawmakers attempt to restrict or burden fundamental and basic rights such as these, the laws must not only be directed toward a legitimate public purpose, but they must be drawn as narrowly as possible. See Firestone v. News-Press Publishing Co., 538 So.2d 457 (Fla. 1989). As the United States Supreme Court has noted, "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Put another way, statutes cannot be so broad that they prohibit constitutionally protected conduct as well as unprotected conduct. News-Press Publishing Co., 538 So.2d at 459.
When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad. See Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla. 1984). This overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). The doctrine contemplates the pragmatic judicial assumption that an overbroad statute will have a chilling effect on protected expression. City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla. 1985).
The overbreadth doctrine continues to be confused with the concept of vagueness, despite efforts by this Court to distinguish the two. See State v. Saiez, 489 So.2d 1125, 1126-27 (Fla. 1986); Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla. 1984). As Justice Overton noted in Southeastern Fisheries,
[t]oo often, courts and lawyers use the terms "overbroad" and "vague" interchangeably. It should be understood that the doctrines of overbreadth and vagueness are separate and distinct. The overbreadth doctrine applies only if the legislation "is susceptible of application to conduct protected by the First Amendment." The vagueness doctrine has a broader application, however, because it was developed to assure compliance with the due process clause of the United States Constitution.
453 So.2d at 1353 (citations omitted).
The Tampa ordinance, by potentially applying to such conduct as talking and waving to other people, clearly implicates protected freedoms. The ordinance limits the rights of those who have been previously convicted of prostitution to engage in noncriminal routine activities. The ordinance suggests that it is incriminating when a "known prostitute" "repeatedly beckons to, stops or attempts to stop, or engages passers-by in conversation, or repeatedly stops, or attempts to stop motor vehicle operators by hailing, waving of arms, or any bodily gesture." Hailing a cab or a friend, chatting on a public street, and simply strolling aimlessly are time-honored pastimes in our society and are clearly protected under Florida as well as federal law. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). All Florida citizens enjoy the inherent right to window shop, saunter down a sidewalk, and wave to friends and passersby with no fear of arrest. A formerly convicted prostitute engaging in these activities, however, risks prosecution under the ordinance for loitering, and the risk of arrest certainly would deter the exercise of these rights. See Johnson v. Carson, 569 F. Supp. 974, 979 (M.D.Fla. 1983).
Many of the activities implicated by the ordinance fall into the realm of personal autonomy that is protected by article I, section 23 of the Florida Constitution. In re Guardianship of Browning, 568 So.2d 4, 9-10 (Fla. 1990).
Wyche correctly asserts that the ordinance, which prohibits loitering "in a manner and under circumstances manifesting the purpose of" engaging in acts of prostitution, does not require proof of unlawful intent as an element of the offense. Indeed, the ordinance allows arrest and conviction for loitering under circumstances merely indicating the possibility of such intent, such as beckoning to passersby and waving to motorists, which could be occurring without any intent to engage in criminal activity. Thus, the ordinance affects and chills constitutionally protected activity.
Similar ordinances likewise have been invalidated by numerous other courts because of the ordinances' potential for punishing innocent conduct. See, e.g., Northern Virginia Chapter, ACLU v. City of Alexandria, 747 F. Supp. 324, 328 (E.D.Va. 1990) ("A person may be prosecuted under the ordinance for engaging in such innocuous activity as speaking in a public place for 15 minutes, shaking hands, and exchanging small objects such as business cards or phone numbers on small pieces of paper."); Johnson v. Carson, 569 F. Supp. at 978 ("[A]nyone standing on the street corner repeatedly talking to passers-by, even if they are old friends, could be violating the ordinance."); Coleman v. City of Richmond, 5 Va. App. 459, 364 S.E.2d 239, 243 (1988) ("A hitchhiker could be arrested and convicted because she waved and beckoned to cars though she said not a word regarding solicitation or prostitution."); Christian v. City of Kansas City, 710 S.W.2d 11, 13 (Mo. App. 1986) ("If the circumstances which allegedly reflect one's illicit intentions were held to be well grounded in constitutional jurisprudence, this court would have to condone potential arrests and convictions for . . . window shopping, waiting on the corner for a bus, waving to friends, or hailing a taxicab.").
Some state courts have likewise recognized the basic deficiencies of these overbroad ordinances, but have attempted to solve the problem by adopting narrowing constructions in an effort to limit the ordinances' scope to unprotected conduct. These courts have construed the language "manifesting the purpose of" to require evidence of specific intent as an element of the offense. See, e.g., City of Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992); City of Milwaukee v. Wilson, 96 Wis.2d 11, 291 N.W.2d 452 (1980); City of Akron v. Holley, 53 Ohio Misc.2d 4, 557 N.E.2d 861 (Ohio Mun. 1989). The court in Luvene also found an overt act requirement in the word "manifesting," noting that the culpable mental state must coexist with identifiable, articulable conduct reasonably consistent with unlawful intent. 827 P.2d at 1383. Other courts, however, have invalidated the ordinances even though they included requirements of specific intent to engage in unlawful behavior. Northern Virginia Chapter ACLU; Coleman.
We find that it is impossible to preserve the constitutionality of the Tampa ordinance without effectively rewriting it, and we decline to "legislate" in that fashion. Courts may not go so far in their narrowing constructions so as to effectively rewrite legislative enactments. News-Press Publishing Co., 538 So.2d at 460; Brown v. State, 358 So.2d 16, 20 (Fla. 1978). Even if we were to find that the ordinance could be preserved facially by writing in requirements of specific intent to engage in prohibited activity and sufficient overt activity to clearly manifest that intent, the ordinance still would be subject to unconstitutional application. A series of adjudications limiting the application of the ordinance would be unacceptable because it would result in a chilling effect on protected speech during the pendency of judicial proceedings delineating the contours of the ordinance. Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569, 576, 107 S.Ct. 2568, 2573, 96 L.Ed.2d 500 (1987).
Moreover, we also find merit in Wyche's argument that the ordinance is unconstitutionally vague. The principles of the vagueness doctrine address compliance with the concept of due process. Southeastern Fisheries, 453 So.2d at 1353; see also State v. Wershow, 343 So.2d 605, 608 (Fla. 1977) (noting that vague statutes violate article I, section 9 of the Florida Constitution). A statute or ordinance is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited. Thus, it invites arbitrary and discriminatory enforcement. Art. I, § 9, Fla. Const.; Southeastern Fisheries. As the United States Supreme Court has noted:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an
ad
hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "`steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked."
Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (citations omitted);
see also Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) ("the more important aspect of the vagueness doctrine `is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement'") (quoting
Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 1248, 39 L.Ed.2d 605 (1974));
Wershow, 343 So.2d at 609 ("To force one to act at one's peril is against the very foundation of our American system of jurisprudence").
Several courts reviewing enactments similar to the Tampa ordinance have found them void for vagueness because they left to police the unguided task of differentiating between constitutionally protected street encounters and acts reflecting the state of mind needed to make an arrest. See, e.g., Johnson, 569 F. Supp. at 980; Brown v. Municipality of Anchorage, 584 P.2d 35 (Alaska 1978); Coleman, 364 S.E.2d at 243. The court in Brown noted that the ordinance could mean that "a previously convicted prostitute or panderer could stand on a public street corner or walk slowly down a public sidewalk only at the whim of any police officer." 584 P.2d at 37.
The Tampa ordinance suffers from the same problem. The word "loiter," upon which the entire ordinance depends, is generally defined as:
To be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to lag behind; to linger or spend time idly.
Black's Law Dictionary 942 (6th ed. 1991). The United States Supreme Court has made clear that loitering, wandering, sauntering, and other idle activities are not, in and of themselves, unlawful.
Papachristou, 405 U.S. at 164, 92 S.Ct. at 844. The question then is whether the additional language in the ordinance qualifies the word "loiter" sufficiently to satisfy the due process clauses of both the United States Constitution and the Florida Constitution. We find that it does not. Many innocent people saunter on the streets and call to friends. The list of circumstances guiding law enforcement officers is not exhaustive and leaves much to individual officers' discretion. The ordinance encourages the arbitrary and discriminatory enforcement of the law and therefore, is unconstitutional.
Id. at 170,
92 S.Ct. at 847.
The ordinance also violates substantive due process because, as we have discussed, it may be used to punish entirely innocent activities. Art. I, § 9; State v. Saiez, 489 So.2d 1125, 1129 (Fla. 1986). As drafted, the ordinance without question "unjustifiably transgresses the fundamental restrictions on the power of government to intrude upon individual rights and liberties." State v. Walker, 444 So.2d 1137, 1138 (Fla. 2d DCA), adopted, 461 So.2d 108 (Fla. 1984). Thus, it is impossible to say that the ordinance bears a reasonable relation to a permissible legislative objective and is not discriminatory, arbitrary, or oppressive. Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla. 1974).
Finally, the ordinance is invalid because its maximum penalty of six months' imprisonment is greater than the penalty imposed by state statutes regulating similar conduct. See Thomas v. State, 614 So.2d 468 (Fla. 1993). Florida's loitering statute, section 856.021, Florida Statutes (1987), and its prostitution and solicitation statute, section 796.07(3)(b) (1987), create second-degree misdemeanors calling for a maximum imprisonment of sixty days in jail. Sections 856.021(3), 796.07(5), 775.082(4)(b), Fla. Stat. (1987). While the city's ordinance is not identical to either of these statutes, it is directed at the same or less serious conduct. Although municipalities and the legislature may legislate concurrently in areas not expressly preempted to the state, a municipality's concurrent legislation may not conflict with state law. City of Miami Beach v. Rocio Corp., 404 So.2d 1066, 1069 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla. 1981). Conflict arises when municipalities punish misconduct more severely than is permitted by state statutes. Thomas; see also Rinzler v. Carson, 262 So.2d 661, 668 (Fla. 1972) (ordinance must not conflict with any controlling provision of state statute); Edwards v. State, 422 So.2d 84, 85 (Fla. 2d DCA 1982) (an ordinance penalty cannot exceed that of a state law).
Accordingly, we answer the certified question in the negative, quash that portion of the district court's decision relating to the loitering ordinance, and remand for proceedings consistent with this opinion.
It is so ordered.
SHAW, J., concurs.
KOGAN, J., concurs with an opinion.
HARDING, J., concurs in result only with an opinion.
McDONALD, J., dissents with an opinion, in which OVERTON and GRIMES, JJ., concur.