Florida appellate courts have published many opinions in recent years (correct ones, I think) reminding trial courts of the limits on anti-harassment/stalking/cyberstalking restraining orders. Whether that is a mark of the soundness of the Florida appellate courts, of the frequency of errors by Florida lower courts, something else, or a mix of these, I can’t say. But here’s a recent example, from Hoover v. Peak, decided in August by Judge Thomas Winokur joined by Chief Judge Timothy Osterhaus and Judge Joseph Lewis, Jr.:
On Independence Day, 2023, Hoover aimed a Roman candle firework at several children present in his neighborhood. Peak’s daughter, C.P., was one of those children. C.P. had her back turned to Hoover when the firework went off, and she suffered a minor injury to her thigh.
Peak reported the incident to the Department of Children and Families, which led to Hoover’s arrest for child abuse. Hoover was also arrested for a separate domestic incident with his now estranged wife Mandelin Hoover. The court granted Mandelin Hoover a domestic violence injunction against Hoover with a no-contact provision.
Then, in August 2023, Hoover and his ex-wife—not Mandelin Hoover—attended their daughter’s ninth-grade orientation at Crestview High School. C.P. was also a ninth-grader at Crestview High School. Thus, Peak, her husband, C.P., and Mandelin Hoover (Peak’s purported best friend) also attended the orientation. While at the orientation, Peak and Hoover crossed paths on four occasions. Peak believed that Hoover understood his criminal case for child abuse due to the fireworks incident to also include a no-contact order as to C.P. In fact, no such provision existed.
Peak sought out the school police deputy to inform him that Hoover was on the premises and that he should be removed. At the same time, Hoover turned into the same hallway but after seeing Peak’s family, he walked away. Based on the four encounters at orientation, Peak filed the underlying petition for an injunction for stalking against Hoover….
The trial court held “that Peak satisfied her burden of showing that a reasonable person would have been placed in substantial emotional distress by Hoover’s actions,” and granted a harassment restraining order against Hoover, but the court of appeals reversed:
Section 784.0485(1), Florida Statutes, creates a civil cause of action for injunctive relief from stalking. Paragraph (6)(a) further provides that “[u]pon notice and hearing, when it appears to the court that the petitioner is the victim of stalking, the court may grant such relief as the court deems proper ….” Stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person[.]”
To establish a showing of “stalking” under the statutes, a petitioner must show evidence of “repeated acts” of “following, harassment, or cyberstalking.” Moreover, competent, substantial evidence must be present in the record to support a finding that a “reasonable person” suffered from emotional distress due to the stalking. Here, there was neither evidence of harassment nor following—much less evidence of “repeated acts” of such actions[—]that would support an injunction for stalking….
“‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” {“‘Course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.”}
In this case, Hoover attended his daughter’s Crestview High School orientation, where parents were to “walk the schedule” of their children. The Peak family and Mandelin Hoover attended the orientation with C.P. Peak, her husband, and Mandelin Hoover testified that they saw Hoover four times during the orientation:
First, near room 501. Hoover was walking toward what was likely room 514 when he allegedly turned back, saw Peak’s group, and kept walking. Second, inside room 514. Hoover was in the room (the computer lab) when Peak’s family entered the room, saw Hoover, and then they—the family—left the room. Hoover’s ex-wife stated that when they saw the Peaks “pop” into room 514, they—the Hoover “entourage”—decided to leave to avoid any issues with Mandelin Hoover, who maintained a no-contact order against Hoover. Third, along the room 501 hallway. Peak’s family was next to room 501 after they walked out of room 514 and shortly thereafter, Hoover walked towards them in the hallway from 514 to 501—which was the direction in which Hoover’s daughter’s math class was. Last, near the “Media Center.” Peak’s family was near the media center speaking with the school police officer about Hoover being at the school when he turned a corner, saw them, and turned around to walk away.
All four encounters—Peak argued—were evidence of “stalking.” Peak’s main contention was that C.P. suffered emotional distress every time she came into contact with Hoover. Thus, Peak claimed that Hoover was “harassing” C.P. and the family. See § 784.048(1)(a), Fla. Stat. (defining “harass” as engaging in “a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose[ ]”). While Peak alleged in the petition that C.P. asked “to start attending therapy to cope with the nightmares and him showing up and following her,” no evidence of the alleged therapy was presented at the injunction hearing. Nor was there any evidence that a reasonable person in C.P.’s position would have suffered “substantial emotional distress.” No evidence of any other dispute other than the firework incident appears in the record that would support such a finding.
Because no competent, substantial evidence is present in the record that Hoover “repeatedly harassed” C.P. or her family while at the Crestview High School orientation, we turn to whether Hoover “repeatedly followed” Peak’s family….
Unlike harassment, “following” is not defined in the statute. Therefore, we apply its ordinary meaning. To follow someone is to “move behind and in the same direction” as them or “to go after [them]” or to “pursue” them “as if with the intention of overtaking [them].” Of the four “encounters” with Hoover, none showed that Hoover was “following” C.P. Mere speculation that someone is following you is not sufficient to warrant an injunction against that person…. [N]othing in the record suggests that Peak met her burden below to show Hoover “followed” or “harassed” C.P. so as to warrant the placement of a permanent injunction with restrictions on certain liberties guaranteed by our state and federal constitutions….
We “must be careful not to apply the stalking statute to infringe on another person’s constitutionally protected freedom of association or free speech or apply in an overbroad manner to reach non-malicious conduct.” … Hoover was attending his daughter’s high school orientation with her and his ex-wife. He spent, at most, thirty minutes at the school going from classroom to classroom, “walking” his daughter’s schedule. Nothing about that behavior is malicious or criminal.
Luke Newman represents Hoover.
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