from Tuscaloosa Circuit Court (CC-17-2909)
Haver Hermann appeals her conviction for a violation of
§ 17-18 of the Municipal Code of Tuscaloosa ("the
Code") and her resulting fine of $250. For the reasons
set forth herein, we reverse and render a judgment for
and Procedural History
1, 2017, Jared Crowder, a police officer with the Tuscaloosa
Police Department, responded to a call alleging that Hermann
was "stopping traffic" at the entrance to an office
complex in which an abortion clinic is located. (R. 13.) The
office complex is located in Tuscaloosa just off Jack Warner
Parkway, a four-lane divided roadway, and is accessible from
Jack Warner Parkway by a two-lane, private drive that
connects to Jack Warner Parkway at a traffic signal. Upon
arriving at the office complex, Crowder observed a vehicle
stopped on the private drive, waiting at the traffic signal
to access Jack Warner Parkway, and observed Hermann
"standing at the passenger window" (R. 10) and
"handing [a pamphlet] in the window in the car."
(R. 13.) According to Crowder, Hermann was "[m]aybe ...
10 yards" from Jack Warner Parkway as she distributed
the pamphlet. (R. 21.) It was undisputed that Hermann was not
soliciting funds from the occupants of vehicles on the
private drive but, instead, was merely providing pamphlets
"just to inform people about the abortion office and ...
just to let them know that there's help available and
that kind of thing." (R. 41.) Specifically, Hermann, who
had distributed pamphlets at this location on other
occasions, testified that she "stand[s] on the public
right-of-way" (R. 54) and that,
"[b]asically, I just, you know, might have a little sign
sitting on the ground next to me and just wave and say, good
morning. I have a pamphlet in my hand. And people will stop
and say, you know, why are you out here, what are you doing,
or different things like that."
(R. 46-47.) If the occupant of a vehicle on the private drive
questions Hermann about her objective, Hermann engages in a
"very brief" conversation with the occupant and
provides the occupant with a pamphlet. (R. 48.) However,
Hermann testified that her distribution of pamphlets has
never prevented vehicles on the private drive from exiting
the office complex or otherwise impeded traffic on the
private drive. (R. 48-49.) Consistent with Hermann's
testimony, Crowder testified that Hermann's conduct on
May 1, 2017, had no effect on traffic exiting Jack Warner
Parkway onto the private drive (R. 18-19), that Hermann was
not prohibiting the vehicles with which she engaged from
exiting the private drive "[o]ther than her arm being in
the window" of the vehicle as she distributed a pamphlet
(R. 18), and that he did not observe the vehicles with which
Hermann engaged blocking other vehicles from exiting the
private drive. (R. 23.) Nevertheless, it was undisputed that
Hermann did not have a permit authorizing her to distribute
pamphlets to the occupants of vehicles on the private drive.
Thus, Crowder issued Hermann a citation for violating §
17-18 of the Code, which provides:
"No person shall stand on a highway or roadway or occupy
space immediately adjacent to a highway or roadway for the
purpose of soliciting employment, business, or contributions
from the occupant of any vehicle nor for the purpose of
distributing any article, unless otherwise authorized by
official permit of the City of Tuscaloosa."
August 8, 2017, Hermann was convicted in the Tuscaloosa
Municipal Court of violating § 17-18. Hermann appealed
to the Tuscaloosa Circuit Court ("the trial court")
for a trial de novo and, before trial, filed a motion to
dismiss in which she argued that § 17-18 is
unconstitutional. The trial court entered an order indicating
that it would take Hermann's motion under advisement on
the date set for trial, but, on the day of trial, the trial
judge stated that he "want[ed] to hear evidence"
before ruling on the motion to dismiss. (R. 93.) Thus, the
case proceeded to trial, where the evidence established the
facts set forth above. Following the admission of evidence,
the trial court heard the arguments of counsel, during which
Hermann's counsel argued that § 17-18 is
unconstitutional and argued that, regardless, § 21-27 of
the Code authorized Hermann to distribute pamphlets, without
a permit, to the occupants of vehicles on the private drive.
On July 19, 2018, the trial court entered an order denying
Hermann's motion to dismiss and a judgment finding
Hermann guilty of violating § 17-18 and ordering her to
pay a $250 fine and court costs. Hermann filed a timely
notice of appeal.
ore tenus standard of review generally applies to judgments
entered following a bench trial." R & G LLC v.
RCH IV-WB, LLC, 122 So.3d 1253, 1256 (Ala. 2013).
However, "'"'[w]here the evidence before
the trial court was undisputed the ore tenus rule is
inapplicable, and [this Court] will sit in judgment on the
evidence de novo, indulging no presumption in favor
of the trial court's application of the law to those
facts.'"'" Williams v. State, 3
So.3d 285, 289 (Ala.Crim.App.2008) (quoting Ex parte
Jackson, 886 So.2d 155, 159 (Ala. 2004), quoting in turn
State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996),
quoting in turn Stiles v. Brown, 380 So.2d 792, 794
(Ala. 1980)). In this case, the facts giving rise to
Hermann's conviction are undisputed. Thus, we review the
evidence de novo and afford no presumption of correctness to
the trial court's application of the law to those facts.
appeal, Hermann argues (1) that § 17-18 is
unconstitutional and (2) that, even if § 17-18 is not
constitutionally deficient, her distribution of pamphlets on
May 1, 2017, to the occupants of vehicles on the private
drive was authorized by § 21-27. Because we find
Hermann's second ...