The Florida Court of Appeal’s yesterday decision can be found here Ahern v. LeonIn an opinion of Judge Alan Forst joined by Judges Melanie May & Jonathan Gerber. It seems to be quite right to me.
Appellee and Appellant briefly dated from mid-2016 to July 2017 and back again between March and July 2017. Appellee told Appellant in October 2017 that he wanted to end all relationships with him. Appellee testified that Appellant contacted two women he was dating, in December 2017 and June 2018, and told them she had dated Appellee, ultimately leaving the women with a negative impression of him…. Appellant said that Appellee was her then-girlfriend. She claimed that Appellee met the woman professionally and that Appellee didn’t realize that Appellee was dating the woman until June 2018. Appellant admitted that she had “warned” Appellee about his past. Neither Appellee or Appellant were able to testify that there was any contact.
Appellant was offered a substitute teaching position at Appellee’s school in December 2019. Neither Appellee nor Appellant have testified about having spoken to Appellee in person or with school staff. Appellee, however, filed for an order for protection from stalking when he learned that Appellant was a teacher at the school. Following a hearing at which the parties were the only witnesses, the trial court granted the petition ….
Florida Statutes (2015), section 784.0485, Florida Statutes (2015). Courts can enjoin stalking/or cyberstalking. “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ….” To harass someone is to conduct a series of actions that cause significant emotional distress and serve no legitimate purpose.
It is unclear whether Appellant’s conversation with Appellee’s former-girlfriends about Appellant constitutes harassment necessitating an order. This was especially because Appellant unrebuttedly testified that she had been professionally acquainted with Appellee before discovering of her relationship with that person. See, e.g., Leach v. KerseyFLA. 2d DCA (2015) (holding that Facebook friend requests and messages as well as phone calls were not grounds to injunctive against stalking if made for the “legitimate purpose” of telling the petitioner to leave the husband with whom she was involved. As we also pointed out in David v. TextorFlorida 4th DCA 2016.
“[A]A temporary injunction against speech is an example of First Amendment concern. It is possible for an injunction to be used against defamatory speech.[P]”Rior restraints of speech and publication constitute the worst and most tolerable violation of First Amendment rights. The First Amendment rights of individual citizens are recognized by section 784.048. It states that “courses of conduct” do not encompass protected speech. Speech that is offensive or vituperative falls under this definition.
The petition for an injunction was submitted in January 2020 in all cases. It had been nearly 18 months since Appellee had spoken to Appellant and it was now two years that the last contact had occurred. Appellant’s accepting a substitute teaching position was nevertheless implicitly characterized by the trial court. They speculated at the hearing that Appellee “the showing up to the particular place were where” would be interpreted as “stalking”. [Appellee]Works, and I do not believe it was an accident by any stretch.
“Speculative testimony does not constitute competent substantive evidence.” Even if the trial judge had a factual basis, which we don’t glean from records, it is clear that the time gap between purported stalking incidents leads us to conclude that Appellant violates the statutory definition. Florida courts found that injunctions may be invalidated if there is a comparable statute.
As mentioned above “[a] person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking ….” Appellee failed to present evidence of Appellant’s “repeatedly following”.[ed]” him. Appellee claimed that a neighbor witnessed Appellant drive by Appellee’s house. This testimony was not supported hearsay. Appellee did not provide any evidence to support Appellee’s claim that they had spoken or physically met after Appellee made a Jan 2018 call. This was two years prior to Appellee filing the petition.
Nor can we conclude that Appellant “repeatedly … harass[ed]” Appellee. Harassment is a conduct that causes significant emotional distress for a person. It also means not to serve any legitimate purpose. Appellee’s petition was filed in December 2018, 18 months after the last “harassment”. Appellee acknowledged that he didn’t feel the need to contact police or file a restraining orders before December 2019. This was in response to any threat posed Appellant.
Although this fact does not make it invalid, the simple fact that Appellant worked at Appellee’s workplace for eighteen months (eighteen years after she last had contact with Appellant), is not a harassment “course of behavior” as defined by the statute. Moreover, Appellant accepting a substitute teaching assignment at the school where Appellee was employed serves a “legitimate purpose,” both for Appellee and the school…. “[C]Ourts generally believe that any contact with a victim is legal if there’s a legitimate reason to do so.
Appellee acknowledged that Appellant did not physically attack him or threaten him with harm. However, Appellee said that Appellant’s presence in her school was a “threat to my safety” as she testified. Appellee is subjectively convinced that Appellant did not assault him. Appellee’s subjective belief is not conclusive. [as statutorily required]Courts apply a reasonable-person standard to all cases, and not one that is subjective. From an objective standpoint, a reasonable person would not be in emotional distress due to the mere fact that a former paramour (who had never physically abused Appellee or threatened physical abuse) was scheduled to work for a couple of days at the same workplace, with no certainty that the two would even encounter each other….