Amicus Curiae Brief — Frandsen v. Florida

No. 98-1726

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1998

DR. MARVIN FRANDSEN,

Petitioner,

v.

THE STATE OF FLORIDA,

Respondent.

EEE EEE OOOO

BRIEF OF AMICUS CURIAE, BREVARD COUNTY,

FLORIDA, IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

LLL

Scott L. Knox, County Attorney

Counsel of Record

2725 Judge Fran Jamieson Way

Viera, Florida 32940

(407) 633-2090 FBN 211291

Kyle P. King, Assistant County Attorney

Trial Counsel

2725 Judge Fran Jamieson Way

Viera, Florida 32940

(407) 633-2090 FBN 990248

TABLE OF CONTENTS

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PI RMON ose i es eo l

STATUTORY PROVISIONS INVOLVED ................ l

75a I TI GAOE ooo ise oink. ee l

ARGUMENT FOR DENYING THE PETITION ........__.. 2

I, THE RULINGS OF THE LOWER COURTS IN

THIS CASE ARE CONSISTENT WITH PRIOR

DECISIONS OF THE UNITED STATES SUPREME

CARES: vedios Gace oe ee anion ie 2

A. The lower courts’ decisions are consistent

with United States Supreme Court decisions

regarding freedom of expression: and,

Petitioner’s actions did not fall within any

exemption set forth in the ordinance. i

B. The lower courts’ decisions are consistent

with the United States Supreme Court

decisions regarding overbreadth. .... . 7

Cc. The lower courts’ decisions are consistent

with the United States Supreme Court

decisions regarding vagueness...... . 1]

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TABLE OF AUTHORITIES

CASES

Adderley v. State, 385 U.S. 39, 17 L. Ed.2¢4 149, 87S. Ct. 242. reh

den., 385 U.S. 1020, 17 L. Ed.2d 559, 87 S. Ct. 698 (1966)

Sia Mnoeninhen veh t abel. Per ee. wren meen 6, 7

Arcara v. Cloud Books, Inc., 478 U.S. 697,92 L. Ed 2d 568, 106 S.

Ct. 3172 pan te a Te I etc 6

Barnes v. Glenn Theater, Inc., 501 U.S. 560, 115 L. Ed.2d 504, 11]

S. Ct. 2456 ist Pdeba heck re eR ee Oe oak 3,4

Bell v. Cox, 642 So.2d 138] (Fla. Sth DCA Ss mee Be ee 14

Board of Airport Comm'rs y. Jews for Jesus, Inc., 482 U.S. 569,

107 S. Ct. 2568, 2572, 96 L.Ed.2d 500 Ds : Waar ergne 8

Broadrick y. Oklahoma, 413 U.S. 601, 6] 1,93 S. Ct 2908, 37 L.

Ed.2d 830 (1973) DV kccthand Lath oo ae 8, 10-12

Cafe 207, Inc. v. St Johns County, 856 F.Supp. 641 (M.D. Fla.

1994), affirmed 66 F.3d 273 (11th Cir. 1995), cert. denied

116 S.Ct. 1544, 134 L.Ed.2d 647 (1996) .. 4, 7-] 1, 13,14

City Council of Los Angeles y. Taxpayers for Vincent, 466 U.S. 789,

104 S. Ct. 2118, 80 L.Ed.2d 772 Os yee 8

ova (sly Me RN REO 2 a 12,14

Coates vy. Cincinnati, 402 U.S. 6] 1,29 L Ed.2d 214,91 S.ct 1686

apis ih yee Gee OT Ra ities 14

Davis v. State, Case No. 96-19741-ACA (Fla. 18th Cir. Ct. Sept. 11,

1997)

iV

Department of Legal Affairs v. Rogers, 329 So.2d 257 (1976) 13,

14

Frandsen v. State, Case No. 97-23494 ACA (Fla. 18th Cir. Ct. Sept.

ey ROE Cad tc U eae dh OF aoa ee eae eres ye

Geaneas v. Willets, 911 F.2d 579 (11th Cir.1990) ......... 9-1]

McKenney v. State, 388 So.2d 1232 (Fla. 1980)......... 11, 12,

14

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973) ..... 13

S.E. Fisheries v. Dept. of Nat. Resources, 453 So.2d 1351 (Fla.

SOGG) sv cc vo epire ytd Ss SOR EEE ser eee 12, 14

Shetler v. State, 681 So. 2d 730 (Fla. 2d DCA 1996) ......... 7

State v. Davis, Case Nos. 95-26139 COA and 95-25568 COA (Fla.

Brovand Coy. Ch A 17, TOSS in cos cael 60 CAS 5

United States v. Hymans, 463 F.2d 615 (10th Cir. 1972) ..... 14 |

United States v. O’Brien, 391 U.S. 367, 20 L. Ed.2d 672, 88 S. Ct.

BOTS CRUE ea edad Ck via cui erereeareeieres 3, 4,6 .

Young v. American Mini Theatres, 427 U.S. 50, 49 L.Ed.2d 310, 96

FS PP CTE avs Goceawekvevceceatieues 11,12

ORDINANCES

Ordinance 95-21, Code of Ordinances of Brevard County, Florida

Be ae ea em Seay ee AURA ag 1, 3,4, 6,9

ES

BRIEF OF AMICUS CURIAE, BREVARD

COUNTY, F LORIDA, IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Amicus Curiae, Brevard County, respectfully files its Brief

in Opposition to the Petition for Writ of Certiorari filed by the

Petitioner in this case as follows:

OPINIONS BELOW

and the County Court of Brevard County, Florida, are included in the

Appendix herein as Exhibit “A”, Exhibit “B” and Exhibit “C”,

respectively,

JURISDICTION TO REVIEW

As discussed below, the reasons for review Specified in the

Petition fail to meet the criteria for the Court to exercise its certiorari

discretion as enunciated in Rule 10(a), (b) and (c), Rules of the

Supreme Court of the United States.

STATUTORY PROVISIONS INVOLVED

Petitioner questions the constitutionality of Brevard County

Ordinance 95-2} (hereinafter “ordinance”), The full text of the

ordinance is reproduced in the Appendix to Petitioner’s Brief at page

STATEMENT OF THE CASE

Brevard County accepts as accurate Petitioner’s Statement of

the procedural history of the case. Brevard County is unable to

stipulate to Petitioner’s version of the facts as set forth in various

Portions of his Brief, including his Statement of the Case. Brevard

County respectfully requests that this Court rely on the record and to

disregard the factual representations and/or characterizations which

are not supported by the record.'

It may be helpful to this Honorable Court to highlight the

undisputed facts, which were relied upon by, and recited within the

opinion of, the Eighteenth Judicial Circuit Court of Appeals of

Florida as follows:

It is undisputed that on September 9, 1995,

appellant was observed on Playalinda Beach, at the

Canaveral National Seashore Park, in Brevard

County, Florida. The appellant was wearing no

clothing other than a hat and an arm band. The

appellant was carrying a sign with protest messages

and he was speaking to a group of people at the time

of his arrest.

See Frandsen v. State, Case No. 97-23494 ACA (Fla. 18th Cir. Ct.

Sept. 28, 1998), Appendix, Exhibit “B”, page 2b.

ARGUMENT FOR DENYING THE PETITION:

I. THE RULINGS OF THE LOWER COURTS IN THIS

CASE ARE CONSISTENT WITH PRIOR DECISIONS

OF THE UNITED STATES SUPREME COURT.

Petitioner argues that his actions of “wearing no clothing

' For example, the Petitioner volunteers (in the Argument section

of his Brief, page 5) that the ordinance was “created and promulgated by the

National Family Legal Foundation of Phoenix, Arizona, a religious right

organization which has touted its goal of 1000 such ordinances in place by

the year 2000.” This statement, and the “statistics” which immediately

follow, are not found in the record and contradict the reality that private

organizations have no ability to promulgate public laws.

3

other than a hat and an armband” on a public beach while “carrying

a sign with protest messages and . . . speaking to a group of people”

qualifies for an exemption under either section 6.b. or 6.c. of the

Brevard County ordinance. However, each of those provisions in the

ordinance apply only “when the conduct of being nude cannot

constitutionally be prohibited by this ordinance. . .” Petitioner’s

argument fails because his conduct in appearing nude on a public

beach can constitutionally be prohibited under the precedent

established by this Honorable Court.

Local governments may prohibit public nudity whether or

not it is combined with expressive activity otherwise protected by the

First Amendment. Barnes v. Glenn Theater, Inc., 501 U.S. 560, 115

L. Ed.2d 504, 111 S. Ct. 2456 (1991). In Barnes, a plurality

decision, the four-part test enunciated in United States v. O'Brien,

391 U.S, 367, 20 L. Ed.2d 672, 88 S. Ct. 1673 (1967), was the

common denominator among the justices voting to uphold the

Indiana statute prohibiting public nudity as applied to nude dancing.

The Court, at page 512, stated:

“This Court has held that when ‘speech’ and

‘nonspeech’ elements are combined in the same

course of conduct, a sufficiently important

governmental interest in regulating the nonspeech

clement can justify incidental limitations on First

Amendment freedoms.”

The Court found that regulating nudity in a public adult

entertainment environment was not a violation of the First

Amendment because (1) the legislation at issue was within the

constitutional power of the government; (2) the legislation furthered

the important or substantial government interest in protecting

societal order and morality, as well as providing for the public health

and safety; (3) the governmental interest was unrelated to the

suppression of free expression; and (4) the incidental restriction on

alleged First Amendment freedoms was no greater than essential to

* Frandsen v. State, Case No.97-23494-ACA (Fla. 18" Cir. Ct.

Sept. 28, 1998), Appendix, Exhibit “B”, page 2b.

4

the furtherance of the governmental interest.

In Cafe 207, Inc. v. St. Johns County, 856 F.Supp. 641 (M.D.

Fla. 1994), affirmed 66 F.3d 273 (11th Cir. 1995), cert. denied 116

S.Ct. 1544, 134 L.Ed.2d 647 (1996), a St. Johns County anti-nudity

ordinance was upheld based on an analysis of the ordinance under

the O'Brien four-part test employed in Barnes. The St. Johns County

ordinance was used as a model for the Brevard County ordinance

now in question. The district court found that the ordinance easily

met the first three parts of the O'Brien test. As to the first part, the

court simply said “The law (i.e., the ordinance), as an exercise of the

county's police power, is clearly within its constitutional authority.”

Cafe 207, Inc. at 644. The court found that the ordinance served

several substantial and important governmental interests, including

the protection of order and morality, as well as the interest in

combating the secondary effects of nudity. /d. The court held that

those governmental interests are not related to the suppression of free

speech as such. /d. Finally, the district court reviewed whether the

incidental restriction on alleged First Amendment freedoms was no

greater than essential to the furtherance of the governmental interests

served by the ordinance. /d at 645. The court then concluded that the

St. Johns County ordinance passed all four parts of the

O'Brien/Barnes test and was therefore constitutional.

Similarly, Brevard County Ordinance 95-21 is constitutional

under the above-described analysis. The ordinance was enacted as

an exercise of the county’s police power and within its constitutional

authority. The ordinance serves several substantial and important

governmental interests, which are found in the statement of intent in

Section 2 of the ordinance which reads in part:

It is the intent of the Board of County

Commissioners, in enacting this ordinance, to

prohibit the conduct of being nude in public places

for the purpose of protecting societal order and

morality and suppressing the adverse secondary

effects that public nudity generates, as more

specifically described in the findings. It is the intent

of this ordinance to protect and preserve the health,

safety, and welfare of the people of Brevard County

by prohibiting any person from knowingly or

af ase tee Be + cating

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5

intentionally appearing nude in a public place.’

Furthermore, these stated governmental interests are not related to

the suppression of free speech, and the incidental restriction on First

Amendment freedoms, if any, is no greater than essential to the

furtherance of these interests.

As the lower court in this case SO aptly stated:

The Brevard County Ordinance serves

several important and substantial government

interests, including the protection of Order and

morality. The Ordinance was enacted as an exercise

of the County's police power... The same

constitution that guarantees a right of free speech

also provides for a representative form of

government that will pass laws consistent with the

Constitution and will of the people. The people of

Brevard County, speaking through their elected

Officials have said that public nudity is not an

acceptable form of conduct. Keeping our public

streets, parks and beaches free from naked people

appears to be a goal that is consistent with the

protection of societal order and morality, as well as

one that helps to assure public health and safety. If

such law somehow restricts First Amendment

freedoms, this Court finds that restriction to be

incidental to the important governmental interest.

Frandsen y. State, Circuit Court No.: 97-23494-ACA (Fla. 18th Cir.

Ct. September 28, 1998).

In State v. Davis, Case Nos. 95-26139 COA and 95-25568

COA (Fla. Brevard Cty. Ct. Jul. 17, 1996),* Judge Philip Fougerousse

* Appendix to Petitioner's Brief, page 9a.

* Judge Fougerousse’s ruling was affirmed per curiam by a three

judge circuit court appellate panel in Davis y. State, Case No. 96-1974].

ACA (Fla. 18th Cir, Ct. Sept. 11, 1997). Full text of the trial court’s ruling

6

applied the O ‘Brien test and upheld the Brevard County ordinance as

applied to facts nearly identical to those at bar, where the Defendant

Davis was arrested for standing on a public right-of-way topless with

protest messages painted on her body. The County Court’s order

analyzed the Brevard County ordinance under the four-part O'Brien

test and made specific findings, to-wit: that the ordinance was

enacted within the constitutional authority of the County and its

police powers, that it furthers important or substantial governmental

interests, that the government interest is not related to the

suppression of free expression, and that the incidental restrictions on

the First Amendment freedoms of the defendant are no greater than

essential to the furtherance of the governmental interests.

Accordingly, the court held that the ordinance was valid.

Judge Fougerousse then considered the defendant's

contention that, the First Amendment exempted her from the

prohibition against public nudity because her topless appearance on

a public right-of-way was accompanied by political speech in the

form of a protest message painted on her body. Citing to Adderley v.

State, 385 U.S. 39, 17 L. Ed.2d 149, 87 S. Ct. 242, reh. den., 385

U.S. 1020, 17 L. Ed.2d 559, 87 S. Ct. 698 (1966), the trial court

rejected that argument. In Adderley, the defendants were convicted

of trespassing in connection with a protest at a jail site. The

protesters claimed that they had selected a specific area outside the

jail to conduct a civil rights protest and that as long as they were

peacefully demonstrating in that area, the State had no right to

enforce trespass laws against them. In affirming the convictions, the

court stated,

“. . . [SJuch an argument has as its unarticulated

premise the assumption that people who want to

propagandize protests or views have a constitutional

right to do so whenever and however and wherever

they please. That concept of constitutional law was

vigorously and forthrightly rejected in two of the

cases petitioners rely on .. . We reject it again.”

and circuit court’s affirmance are found in Appendix, Exhibits “D” and “E”,

respectfully.

OO

a ae eee

[citations omitted].

Adderley, 385 U.S. at 47-48. See also, Arcara y. Cloud Books, Inc.,

478 U.S. 697, 92 L. Ed 2d 568, 106 S. Ct. 3172 (1986).

prohibiting public nudity, he cannot express those views in public

while nude. Just as the F irst Amendment provided no exemption

from prosecution to the defendants in Adderley when they protested

protection while violating the ordinance prohibiting public nudity,

In a similar case, Shetler v. State, 681 So. 2d 730 (Fla. 2d

DCA 1996), Florida’s Second District Court of Appeal upheld the

conviction of a hotdog vendor arrested for wearing a T-back bathing

suit in violation of the Polk C ounty anti-nudity ordinance. The court

rejected defendant’s First Amendment claim, found that her conduct

was fit for government regulation and that First Amendment

protection was minimal. Further, the court held that the county’s

interest in protecting and preserving the health, safety, welfare, and

morals of its citizens would justify any intrusion upon

constitutionally protected expression.

For all the forgoing reasons, Brevard County respectfully

submits that the ruling’s of the lower courts in this case are

consistent with the decisions of this Court regarding freedom of

expression.

B. The lower courts’ decisions are

consistent with the United States

Supreme Court decisions regarding

overbreadth.

Petitioner also argues that the lower court decisions were

erroneous when they held that the ordinance was not Overly broad.

Specifically, Petitioner contends that two of the ordinance’s

exemptions, section 6.b. and section 6.c., are unconstitutionally

vague and overbroad on their face.

In Café 207, Inc., supra, a similar overbreadth argument was

8

enunciated against the St. Johns County, Florida, ordinance, to wit:

that the St. Johns ordinance was unconstitutionally overbroad

because it banned nudity associated with protected, serious theatrical

performances such as Hair and Equus. The Café 207 court observed

that two issues are presented by such a challenge: 1) does the

defendant have standing to assert the legislation is overbroad and, if

standing is established, 2) what is the appropriate standard to be

applied to the merits of the overbreadth claim. Café 207, Inc., supra

at 647.

The First Amendment overbreadth doctrine is an exception

to the rule that a person will not be heard to challenge a statute based

on how the statute might be applied to other people. Broadrick v.

Oklahoma, 413 U.S. 601, 611-12, 93 S. Ct. 2908, 2915-16, 37 L.

Ed.2d 830 (1973). The concern is that an overbroad law may

“threaten 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.” Board of Airport Comm'rs vy. Jews for Jesus, Inc.,

482 U.S. 569, 574, 107 S. Ct. 2568, 2572, 96 L.Ed.2d 500 (1987).

However, simply conceiving of a situation where the

legislation would be unconstitutional as applied is not sufficient to

succeed on an overbreadth claim. City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118, 2126, 80

L.Ed.2d 772 (1984).

“{Pljarticularly where conduct and not merely

speech is involved, we believe that the overbreadth

of a statute must not onl real, but substantial as

well, judged in relation to the statute’s plainly

legitimate sweep. Application of the overbreadth

doctrine in this manner is, manifestly, strong

medicine. It has been employed by the Court

sparingly and only as a last resort . . . [e]}ven when

first amendment rights are implicated, the impetus

to apply the doctrine attenuates as the expression .

. . moves from ‘pure speech’ toward conduct and

that conduct -- even if expressive -- falls within the

scope of otherwise valid criminal laws” (Emphasis

added) Broadrick, supra, at 615, 93 S. Ct. at 2916.

9

Thus, for the overbreadth claim to be entertained in such a case, the

excessive scope of the statute or ordinance being reviewed must not

only be real but substantial, and “not subject to cure through case-by-

case analysis and limiting judicial construction or partial

invalidation.” See , Café 207, Inc., 856 F.Supp at 648,

In the Café 207, Inc., overbreadth challenge, the court held

that the plaintiff lacked Standing under the principles of Broadrick.

supra and Geaneas vy, Willets,91| F.2d 579 (11th Cir.1990), that the

alleged overbreadth was not real or substantial, and that whatever

overbreadth may exist may be cured through case-by-case analysis,

limiting construction or, ifnecessary, partial invalidation. Café 207,

Inc. at 649. The court explained that even if there had been

overbreadth as alleged, the St. Johns exemption language (Section

7(b)(i) and (ii) of that ordinance) would “step in to safeguard the

protected speech,” such as the aforementioned _ theatrical

performances. See also SBC Enterprises, Inc., supra (upholding

anti-nudity ordinance against, inter alia, similar overbreadth and

vagueness challenges where ordinance prohibited all nudity in public

and apparently lacked the first amendment exemptions which are

present in the St. Johns and Brevard County Ordinances).

As mentioned above, the St. Johns Ordinance (as well as the

Café 207 case itself) was a model for Brevard’s anti-nudity

ordinance. Therefore, it is no mistake that the subject exemptions of

the St. Johns ordinance (Section 7(b)(i) and (ii)) and the exemption

language questioned in the instant ordinance (Section 6(b) and (c))

are nearly identical. Brevard County Ordinance 95-2], Section 6.

Exemptions, states in pertinent part:

b. when the conduct of being nude cannot

constitutionally be prohibited by this ordinance

because it constitutes a part of a bona fide live

communication, demonstration or performance by

such person wherein such nudity is expressive

conduct incidental to and necessary for the

conveyance or communication ofa genuine message

or public expression, and is not a guise or pretense

utilized to exploit nudity for profit or-commercial

gain (see, for example, Barnes v. Glen Theatre Inc.

-. and Hoffman v. Carson . . . : or

10

c. when the conduct of being nude cannot

constitutionally be prohibited by this ordinance

because it is otherwise protected by the United

States Constitution or Florida Constitution under

existing judicial decisions. . .

Additionally, just as in Café 207, Inc., the Court has the added

guidance from pertinent whereas clauses, such as:

u. the exemptions contained in this ordinance provide

adequate protection to persons who, without such

exemptions, might be prevented or discouraged by

this ordinance from exercising constitutionally

protected rights; and

v. this ordinance regulates conduct, not speech.

Just as the Café 207 court found no real or substantial overbreadth

(that could not await case-by-case analysis) in light of the

exemptions and whereas clauses, Brevard County respectfully

requests this Court to conclude similarly in the instant case.

Petitioner Frandsen was, by his own admission, engaged in a

political protest. Brevard County submits that Petitioner certainly

was not “chilled” in the exercise of his First Amendment rights on

September 9, 1995, the date of his arrest. Moreover the ordinance’s

exemptions and whereas clauses provide ample protection to

safeguard protected speech and, therefore, not discourage the

exercise of constitutionally protected rights. Brevard County

respectfully submits that Petitioner does not have standing, nor does

there exist real or substantial overbreadth, per Café 207, Broadrick,

and Geaneas, supra.

Defendant also asserts that ordinance exemptions 6.b. and

6.c. are vague and overbroad. However, upon closer inspection it

appears that Defendant’s complaints are actually of the due

process/vagueness genre (i.e., it is alleged that the language fails to

provide adequate notice of the proscribed activity and/or leads to

arbitrary or discriminatory enforcement); this is not to be confused

with the first amendment overbreadth doctrine enunciated above. In

any case, Brevard County submits that the overbreadth doctrine does

— er

1]

not apply to the same exemptions that, as the Café 207 court put it,

“step in to safeguard . . . Protected speech.”* It is difficult to follow

The lower courts’ decisions are

consistent with the United State

Supreme Court decisions regarding

vagueness.

of the statute cannot reasonably be said to have been denied adequate

notice of the Proscribed conduct. McKenney y, State, 388 So.2d

1232,1234 (Fla. | 980) (citing, Broadrick y. Oklahoma, 413 U.S. 601,

American Mini Theatres, 427 U.S. 50, 49 L.Ed.2d 3] 0, 96S. Ct 2440

(1976), this Court analyzed a City of Detroit zoning ordinance which

* Café 207, supra at 648.

12

regulated adult movie theaters. This Court would not consider a

vagueness challenge in the abstract and held that the Respondents,

who operated adult movie theatres, did not have standing to assert

vagueness where the ordinances were “unquestionably applicable”

to the Respondents.

The conduct of Petitioner so clearly falls within the

prohibitions of the ordinance that he cannot claim he lacked notice

as to what conduct the ordinance proscribed. In this case, on

September 9, 1995, the Petitioner was on a public beach wearing no

clothing or items of coverage other than a hat on his head and an

armband. This conduct is clearly and precisely proscribed by the

ordinance which requires that the adult human male genitals and

buttocks be covered. Thus, Petitioner has no standing to claim lack

of notice, nor can he assert a charge of vagueness in the abstract.

Young and McKenny, supra. Furthermore, Petitioner, who was

protesting the ordinance, was informed by the deputies on the scene

that he was in violation of the county ordinance and was subject to

arrest if he remained nude. The defendant was put on specific notice

that his conduct was unlawful, yet he chose to remain nude anyway.

Defendant, therefore, has no standing to claim he lacked notice of

what exposure is proscribed when his conduct is so blatantly within

the ambit of the ordinance’s prohibitions; nor does he have standing

to allege vagueness in the abstract or on behalf of third parties.

McKenny, Young and Broadrick, supra.

Even assuming that the Court finds that Petitioner has

standing, Brevard County submits that the ordinance survives the

vagueness test, a two-part analysis. First, the subject statute or

ordinance must provide persons of common intelligence adequate

notice as to the nature of the proscribed conduct. Second, the

wording of the statute or ordinance may not be so imprecise as to

invite arbitrary and discriminatory enforcement. S.E. Fisheries v.

Dept. of Nat. Resources, 453 So.2d 1351 (Fla. 1984) (Supreme Court

of Florida held that the term “fish trap” is not so vague that persons

of common intelligence must guess at its meaning. The Court added

that if the definition of “fish trap” were more precise, then the

purpose of the statute could be easily circumvented.); See also, City

of Daytona Beach vy. Del Percio, 476 So.2d 197, 200 (Fla. 1985) (The

fact that several interpretations of an ordinance may be possible does

not render it void for vagueness, but when regulations “are set out in

ee ee Pe ee ee ee a =

13

terms that the ordinary person exercising ordinary common sense can

sufficiently understand and comply with, [there is no] sacrifice to the

public interest.”),

The language contained in exemptions 6(b) and 6(c) is clear

and puts persons of common intelligence on notice of the proscribed

conduct and it also draws a bright line for law enforcement, thereby

eliminating any invitation of selective enforcement due to imprecise

language. In Café 207, supra , the court analyzed a vagueness

questioned herein. The court reasoned at page 649:

vague. Case-by-case adjudication js required and will

satisfy the due process requirements of the Fourteenth

Amendment.

The Café court went On to explain that if this nudity exception is

condemned for vagueness, then the obscenity laws® must also be

also Department of Legal Affairs y. Rogers, 329 So.2d 257 (1976).

In Rogers, the Supreme Court of F lorida upheld, against a vagueness

challenge, an act Proscribing “unfair or deceptive” trade practices,

“unfair” or “deceptive”) was not an unconstitutional delegation of

legislative authority, where the court interpreted the act to mean

decisions already existing prior to enactment. Jd. at 267. In

exemption 6(c), the ordinance sub judice refers to “existing judicial

decisions,” thereby avoiding the need for judicial construction and

* Under Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615

(1973) Obscenity laws leave protection of First Amendment values to the

“ultimate power of appellate courts to conduct an independent review of

constitutional claims when necessary.”

4

avoiding any vagueness (or unconstitutional delegation of legislative

authority) challenges per Rogers.

In addition to Café 207, S.E. Fisheries, Rogers and Del

Percio, supra, consider the following sampling of cases, upheld

under the charge of vagueness, which lack the clarity and precision

of the language challenged herein: See, Bell v. Cox, 642 So.2d 1381

(Fla. Sth DCA 1994) (Statute awarding attorney’s fees upon owner’s

“unreasonable refusal” was not unconstitutionally vague as language

was sufficiently clear so that persons of common intelligence could

understand its meaning); McKenney y. State, 388 So.2d 1232 (Fla.

1980) (Florida Supreme Court held that assignation statute —

Section 796.07(3)(a), Fla. Stat. — making it illegal “to offer to

commit, or to commit, or to engage in, prostitution, lewdness, or

assignation” was not unconstitutionally vague nor overbroad);

United States v. Hymans, 463 F.2d 615 (10th Cir. 1972) (Court held

the term “indecent conduct” is not unconstitutionally vague); cf.

Coates v. Cincinnati, 402 U.S. 611, 29 L Ed.2d 214, 91 S.Ct. 1686

(1971) (Supreme Court found Cincinnati ordinance

unconstitutionally vague where ordinance made it a criminal offense

for three or more persons to assemble on a sidewalk “and there

conduct themselves in a manner annoying to persons passing by.”’)

For all the foregoing reasons, Brevard County submits that

the lower court decisions correctly held that the ordinance was not

unconstitutionally vague.

15

CONCLUSION

Since the decision of the lower court is consistent with prior

decisions of this Court, the Petition should be denied.

Respectfully submitted,

OFFICE OF THE BREVARD COUNTY ATTORNEY

2725 Judge Fran Jamieson Way

Viera, Florida 32940

(407) 633-2090

Scott L. Knox ~

Brevard County Attorney

Florida Bar No. 21129]

ATTORNEY FOR AMICUS CURIAE

BREVARD COUNTY, FLORIDA

Assistan

Florida Bar No. 990248

ATTORNEY FOR AMICUS CURIAE

BREVARD COUNTY, FLORIDA

la

APPENDIX EXHIBIT “A”

IN THE DISTRICT COURT OF APPEAL OF

THE STATE OF FLORIDA

FIFTH DISTRICT

MARVIN FRANDSEN,

Petitioner,

v. Case No. 98-2611

STATE OF FLORIDA,

Respondent.

DATE: January 25, 1999

BY ORDER OF THE COURT:

ORDERED that the PETITION FOR WRIT OF

CERTIORARI, filed September 29, 1998, is denied.

I hereby certify that the foregoing is

(a true copy of) the original Court order.

/s/ Frank J. Habershaw

FRANK J. HABERSHAW, CLERK

(COURT SEAL)

cc: Mark Tictig, Esq.

Mark R. Brown

Office of the Attorney General, Daytona Beach

Hon. Edward J. Richardson

Hon. Warren Burk

Hon. Edward M. Jackson

:

NN aii oie te eee — —

2a

APPENDIX EXHIBIT 7

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL

CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA

MARVIN FRANDSEN APPELLATE DIVISION

CASE NO. 97-23494-ACA

Defendant/Appellant, TRIAL COURT CASE NO.

95-22547-COA

STATE OF FLORIDA

Plaintiff/Appellee

Decision filed:

Appeal from County Court

Mark E. Tietig, Esq.

6065 S. Tropical Trail

Merritt Island, FL. 32952

Attorney for Appellant/Defendant

Office of the State Attorney

Attorney for Plaintiff/Appellee

RICHARDSON, Edward J.,

Appellant was charged with violating the Brevard County

Anti-Nudity Ordinance #95-21, which prohibits public nudity.

Appellant filed a Motion to Dismiss the charge based upon the

alleged unconstitutionality of the ordinance. In particular, the

appellant contends that the subject Ordinance is unconstitutional,

both facially and as applied in this case, and for vagueness and

overbreadth. Further, and in the alternative, the appellant argues that

his conduct was exempted from the prohibitions of the ordinance

under sections 6(b) and (c) of the ordinance. The Trial Court denied

3a

the appellant's motion. Thereafter, the appellant pled nolo

contendere to the violation, expressly reserving his right to appeal

the denial of his motion. This Court has completed a de novo review

of the record, including the video tape presented to the trial court in

support of the appellant's motion,

It is undisputed that on September 9, 1995, appellant was

observed on Playalinda Beach, at the Canaveral National Seashore

Park, in Brevard County, Florida. The appellant was wearing no

clothing other than a hat and an arm band. The appellant was

carrying a sign with protest messages and he was speaking to a group

of people at the time of his arrest.

Statutes and ordinances normally are the beneficiaries of a

presumption of constitutionality which the attacker must refute.

However, where an ordinance regulates the exercise of First

Amendment rights, the burden shifts to the government to defend the

constitutionality of that eerie vapens a pete eee. See,

al 452 U.S. 640, 658, 101 S Ct. 2559, 69 L.Ed. 2d 298 (1981),

The First Amendment literally forbids the abridgment only

“of speech". However, this protection has been expanded beyond the

spoken or written word, to include some forms of expressive

conduct.

In the instant case, the subject ordinance regulates conduct

rather than "speech". Simply stated, it is illegal in Brevard County

to be nude in a public place. However, the exemptions set forth in

sections 6(b) and 6(c) of the Ordinance remove from its’ prohibition

expressive conduct that may be "sufficiently inbred with elements of

communication to fall within the scope of the First and Fourteenth

Amendments". See, Spence v. Washington, 418 U.S. 405, 409. 94

S.Ct. 2727, 41 L.Ed.2d 842 (1974). Since the subject Ordinance

proscribes "conduct" rather than speech, this Court finds that the

burden rests with the appellant to demonstrate the unconstitutionality

of the Ordinance.

In deciding whether particular conduct possesses sufficient

—eeeeeeeeeeeeeeeeEEeEOEeEeEee

4a

communicative elements to bring the First Amendment into play, it

is necessary for the Court to analyze whether the appellant had an

intent to convey a particularized message and (whether) the

likelihood was great that the Message would be understood by those

who viewed it, See U.S. v. O'Brien, 391 U.S, 367, 88 S.Ct. 1673, 20

L. Ed.2d 672 (1968),

Nudity, in and of itself, is not activity protected by the First

Amendment. See, ‘lori shes v, Ci lami, 734

F, 2d 608 (11th Cir. 1984); Barnes vy. >, 501 U.S.

560, 571, 111 S.Ct. 2456, 2463, 115 L. Ed.2d 504(1991),

This Court cannot conclude as a matter of law that the

appellant's conduct in g0ing nude in public was sufficiently inbred

with elements of communication to fall within the scope of protected

expression under the First Amendment. Indeed the nudity added

nothing to the message. Therefore, it cannot be Said as a matter of

| law, that through the appellant's nudity it was likely that the viewers

| would understand the message. The Trial Court was correct in

denying the appellant's motion to dismiss on this legal issue,

Perhaps, had the appellant elected to £0 to trial, in lieu of a plea, a

jury question would have been created as to whether his conduct fell

Within the exemptions of the ordinance. The Trial Court's ruling of

course, was confined Only to questions of law. See, Texas y.

Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). As

long as the ordinance was (1) within the constitutional power of the

| government; (2) it furthered the important or substantial government

| interest in protecting societal order and morality, as well as providing

for the public health and safety; (3) the 8overnment interest was

unrelated to the expression of free expression; and (4) the incidental

restriction of al leged First Amendment freedom was not greater than

essential to the furtherance of the government interest, the legislation

will be upheld. U.S. y. O'Brien, supra. This Court finds that the

subject Ordinance meets this test, and is therefore, constitutional on

its’ face and as applied in this case. See,; Cafe 207, Inc. y. St. John's

County, 856 F.Supp. 64 (M.D. Fla. 1994), aff. 66 F.3d 273 (1 1th Cir,

1995), cert. den. 116 S.Ct. 1544, 134 L.Bd.2d 647 (1996).

Saree ae ee To Set ”

The Brevard County Ordinance serves several important and

OE

Sa

substantial government interests, including the protection of Order

and morality. The Ordinance was enacted as an exercise of the

County's police power. The subject Ordinance in no way prohibits

the appellant from expressing his views in a public forum. Each of

the appellant's stated messages can be effectively communicated to

anyone willing to listen without resorting to public nudity. The same

constitution that guarantees a right of free speech also provides for

a representative form of government that will pass laws consistent

with the Constitution and will of the people. The people of Brevard

County, speaking through their elected officials have said that public

nudity is not an acceptable form of conduct. Keeping our public

streets, parks and beaches free from naked people appears to be a

goal that is consistent with the protection of societal order and

morality, as well as one that helps to assure public health and safety.

If such law somehow restricts First Amendment freedoms, this Court

finds that restriction to be incidental to the important governmental

interest.

The appellant argues that even if the subject Ordinance

applies to him, and is Constitutional when so applied, it is

nevertheless unconstitutional and unenforceable because it is a

criminal statute with broad implications capable of sweeping within

its am bit protected speech or expression of those not before the

court.

As to the overbreadth claim, the cases of Broadrick v.

Oklahoma, 413 U.S. 601, 93 S.Ct. 2906, 37 L.Ed.2d 830 (1973), and

Geaneas v. Willets, 911 F.2d 579 (11th Cir. 1990), cert. denied, 499

U.S. 955, 111 S.Ct. 1431, 113 L.Ed.2d 484 (1991) are controlling.

In Broadrick, the Court noted that where conduct and not merely

speech is involved, "the overbreadth of the statute must not only be

real, but substantial as well, judged in relation to the statute's plainly

legitimate sweep". It is this Court's view that Brevard County

Ordinance #95-21 is not substantially over broad and that whatever

overbreadth may exist should be cured through case-by-case analysis

of the fact situations to which its sanctions may not be applied. d., at

615-16.

The appellant's conduct in the instant case, i.e. public nudity,

is exactly what the ordinance 's designed to prohibit. The core

il im a ila

Aen tictalcaibacie Sn, Aaa NOR LAE Nitin IA

m oh omen

6a

concern" of Brevard County is to prohibit persons from being naked

in public. In Geaneas supra, the Court stated:

The Plaintiffs conduct in the present case moreover rests

extremely close to this core, whether or not the ordinance

reaches to conduct at a distance from the core concerns. The

plaintiffs clearly have no standing under Broadrick to

challenge on this basis, the ordinance's application to them.

The Plaintiffs overbreadth argument lacks foundation.

The appellant argues that the exemptions set forth in sections

6(b) and 6(c) of the ordinance are unconstitutionally vague. Such

vagueness, it is argued, arises from the need to interpret the various

words or qualifiers in section 6, which exempt constitutionality

protected expression from the scope of the ordinance.

It is clearly impossible to draft an ordinance that would

embody all forms of expressive conduct that would be protected

from governmental restriction under the First and Fourteenth

Amendments, It is for this reason that Exemptions 6(b) and (c) are

worded in rather broad terms. However, a review of these

exemptions demonstrates clear language sufficient to put a person of

common intelligence on notice of the proscribed and exempted

conduct. See, Cafe 207, supra.

For the reasons stated, the decision of the Trial Court denying

the appellant's Motion to Dismiss be and the same is hereby

AFFIRMED.

Burk, Warren, Judge - concurs.

Jackson, Edward, Judge - recused.

ee

7a

APPENDIX EXHIBIT “C”

IN THE COUNTY COURT OF THE EIGHTEENTH JUDICIAL

CIRCUIT, IN AND FOR BREVARD COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff, CASE NUMBER 95-22547-COA

VS.

MARVIN VAUN FRANDSEN,

Defendant.

MOTION ISMISS

This cause came before the Court, and the Court having

heard testimony, having considered the exhibits and Memorandums

of Law submitted by counsel for the State and the Defense, and

having heard oral argument from both counsel, does hereby enter its

Order as follows:

The Court finds that Brevard County Ordinance 95-21,

which prohibits nudity in Brevard County, is constitutional both on

its face and as applied to the Defendant The ordinance is not

unconstitutionally vague or overbroad. The ordinance does not

violate the Defendants rights under the First Amendment or

Fourteenth Amendment of the Constitution. More specifically, the

conduct of the Defendant is not protected as free speech, political

protest or freedom of religion; the ordinance does not act as a prior

restraint and the enforcement of the ordinance is not in violation of

the Defendant's due process or equal protection rights. Further, the

Defendant's conduct is not protected under any exemption contained

within the ordinance.

The Court relies on its review of all case law submitted, but

especially on the cases of Bames vs. Glenn Theatre, Inc., 501 U.S.

560, 115 L.Ed.2d 504, 111 S.Ct 2456 (1991); United States vs.

Sa

O'Brien, 391 U.S. 367, 20 L.Ed.2d 672, 88 S.Ct 1673 (1967) and

Cafe 207, Inc. vs. St. John's County, 856 F.Supp. 641 (M.D. Fla.

1994), affirmed 66 F.3d 272 (1 Ith Cir. 1995), cert. denied 116 S.Ct

1544, 134 L.Ed.2d 647 (1996) as well as prior rulings from Brevard

County Court Judges in State of Florida vs. Kristina Davis, 95-

26139-COA, 95-25568-COA, and State of Florida vs. Erin

Stllmayer, 95-22349.COA.

Itis therefore, ORDERED and ADJUDGED that Defendant's

Amended Motion to Dismiss for Unconstitutionality, Both Facially

and as Applied, and for Vagueness and Overbreadth, is hereby

DENIED on all grounds. DONE AND ORDERED at Viera, Brevard

County, Florida, this 29 day of July, 1997, nunc pro tune July 25,

1997,

/s/ Peter Haddad ast

HONORABLE PETER HADDAD

COUNTY COURT JUDGE

copies:

Michelle E. Jackson, Assistant State Attorney

Kyle P. King, Assistant County Attorney

Mark Tietig, Attorney for Defendant

9a

APPENDIX EXHIBIT “D”

IN THE COUNTY COURT OF

THE EIGHTEENTH JUDICIAL

CIRCUIT, IN AND FOR

BREVARD COUNTY, FLORIDA

CASENO. 95-26139-MMA

95-25568-MMA

STATE OF FLORIDA

Plaintiff

VS.

KRISTINA DAWN DAVIS

Defendant

/

ORDER DENYING DEFENDANT'S

MOTION TO DISMISS

THIS CAUSE having come on to be heard on the

Defendant’s Motions to Dismiss Information in the above

styled causes of action and that the Court having heard

arguments of counsel on several occasions and further having

been provided and taking into consideration the Defendant's

Memorandum of Law dated June 3, 1996 along with the

Memorandum of Law in Opposition to Defendant’s Motion

to Dismiss provided by the State on June 3, 1996 with Notice

of Supplemental Authority filed by the State on June 6, 1996

and the Court being otherwise fully advised in the premises

does hereby find the following:

10a

The Defendant in filing her Motion to Dismiss has

raised constitutional issues alleging the unconstitutionality of

County Ordinance 95-2] as it relates to these causes of

action, Specifically, the Defendant has raised first

amendment issues including free speech, the right to protest

and overbreath, has also raised a due Process issue of

vagueness in said ordinance along with two issues pertaining

to the Defendant’s right to equal protection and finally, an

issue related to selective enforcement. In the Defendant's

Memorandum of Law the Defendant has conceded the issue

Overbreath and vagueness. These issues, having been waived

and will not be considered by this Court at this time.

The facts of this case are as follows:

On October 24, 1995 the Defendant was allegedly

Standing on the side of a public roadway located in Brevard

County, Florida in a thong bikini bottom Wearing only pasties

Over the areola and nipples of her breasts, the remaining

portions of her breasts not being covered (Case No, 95-

25568-MMA). On November 6, 1995 the Defendant was

standing in the same area of a public roadway located in

Brevard County, Florida Wearing only a thong bikini bottom

with no covering of any portion of her breasts. On her body

Were written and/or drawn sentiments against Brevard

County Ordinance 95-2] which Ordinance is being herein

challenged by the Defendant.

F

The first issue is weather [sic] the Defendant's

conduct in €xposing her breasts in protest of Ordinance 95-2 |

is protected speech and conduct under the First Amendment

of the United States Constitution and Article I, Sections 4 and

5 of the Florida Constitution. The Defendant alleges that she

Was engaged in a political protest on November 6, 1995 when

she was arrested for being in violation of said Ordinance.

lla

Nudity in and of itself is not a constitutionally

protected activity. McGuire v. State, 489 So. 2d 729 (Fla.

1986). “[P]ublic nudity does not convey any specific

message, at most it is a medium by which a variety of

messages may be conveyed. The medium of nudity is not a

particular message, the medium is simply the medium.”

Craft v. Hodel, 683 F.Supp. 289, 292 (D. Mass. 1988).

Nudity is protected as speech only when combined with some

mode of expression which itself is entitled to First

Amendment protection. South Florida Free Beaches v. City

of Miami, Florida, 734 F. 2d 608 (11th Cir. 1984).

In O’Brien v. United States, 391 U.S. 367, 20 L.Ed.2d

672, 88 S.Ct. 1673 (1968), the Supreme Court has enunciated

a test for determining the constitutionality of restrictions on

symbolic speech or expressive conduct.

This Court has held that when ‘speech’ and

‘nonspeech’ elements are combined in the

same course of conduct, a sufficiently

important governmental interest in regulating

the nonspeech element can justify incidental

limitations on First Amendment freedoms. . .

[A] government regulation is sufficiently

justified if it is within the constitutional power

of the Government; if it furthers an important

or substantial governmental interest; if the

governmental interest is unrelated to the

suppression of free expression; and if the

incidental restriction on alleged First

Amendment freedoms is no greater than is

essential to the furtherance of that interest.

319 U.S. at 376, 377.

O’Brien has been used to uphold an anti-nudity

Ordinance from St. Johns County, Florida. Cafe 207, Inc. v.

St. Johns County, 856 F.Supp. 641 (M.D. Fla. 1994),

nn

12a

affirmed 66 F.3d 273 (11th Cir, 1995), cert. den. April 22,

1996. In Cafe 207, the owner and dancers of an adult

entertainment establishment challenged St. Johns County’s

met:

The law, as an exercise of the County’s Police

power, is clearly within its constitutional

authority. It also serves a substantial and

important governmental interest in protecting

order and morality and in combating the

secondary effects of nudity in adult

entertainment establishments of the sort

typified by the Plaintiff's Cafe Erotica. And,

neither of those governmental interests is

related to the suppression of free expression as

such. Cafe 207 at 644.

The Court concluded that the incidental restriction on the

First Amendment freedoms was no greater than was essential

to the furtherance of the governmental interests served by the

ordinance. The Court acknowledged that there was “a line in

every case beyond which the lawmakers cannot go in

requiring clothing or prohibiting exposure in some contexts”

but that the St. Johns ordinance did not cross that line. Cafe

207 at 646,

It is this Court[ "Js ruling in applying the O’Brien test

to Brevard County Ordinance 95-21 that:

1. The ordinance was enacted within the

constitutional authority of the county and its police powers.

2. The ordinance furthers important or

substantial governmental interests in protecting societal order

l3a

and morality and suppressing the adverse secondary effects

that public nudity generates; and to protect and preserve the

health, safety and welfare of people of Brevard County.

3. The governmental interest is not related to the

suppression of free expression.

4. The incidental restriction on the First

Amendment freedoms of the Defendant in this case are no

greater than essential to the furtherance of governmental

interests.

This Court rules that the conduct of the Defendant in this

case, appearing nude from the waist up, to protest is not

entitled to protection under the First Amendment.

The Defendant argues that because this was a political

protest, the conduct of appearing nude in public should not be

abridged. In Adderley v. State, 385 U.S. 39, 17 L.Ed.2d 149,

87 S.Ct. 242, the Supreme Court held that convictions for

trespass did not unconstitutionally deprive defendants of their

rights to freedom of speech, press, assembly, or petition. The

defendants in this case were protesting the arrest of other

protesters and segregation. The protest was at the local jail in

the driveway near the jail entrance. The defendant had

argued that they had a constitutional right to stay on the

property because the “area chosen for the peaceful civil rights

demonstration was not only ‘reasonable’ but also particularly

appropriate. . .” Adderley, at 47. In response to this

argument, the Court states:

Such an argument has as its major

unarticulated premise the assumption that

people who want to propagandize protests or

views have a constitutional right to do so

whenever and however and wherever they

please. That concept of constitutional law was

vigorously and forthrightly rejected... .We

reject it again.

l4a

It is this Court[’]s ruling that the Defendant in this case does

not have the unrestricted right to do as she pleases, where she

pleases in the name political protest.

E

The Second major issue which is addressed by the

Parties in this case is Equal Protection. The Defendant

contends that Brevard County Ordinance 95-2] is

unconstitutional on its face by creating two separate

classifications which will be addressed independently,

Vv

Gender based classifications are tested by an

intermediate scrutiny test, whether the classification bears a

substantial relationship to important governmental objectives.

ig V » 429 U.S. 190, 50 L.Ed.2d 397, 97 S.Ct. 451

(1976). (See Uni locic, 928 F.2d 112 (4th Cir.

1991); Eckel y. Davis, 51 Cal.App.3d 831, 124 Cal.Rptr. 685

(1975).

It is the defendant’s position that these cases which

have held that the classification between the male and the

female breast is not a violation of equal protection have been

based upon the:

[I}mplicit. . ‘reasoning of all of these decisions

is the underlying assumption that the female

breast is sufficiently different from the male

breast to justify the different standard applied

to the public expose [sic] of each type of

breast. However, it is also absolutely evident

from the cases that this distinction takes on

constitutional meaning only because of the

courts’ acceptance that traditional concepts of

morality and concepts of public decency

buttress the distinction. Without the

moral/decency nexus there would be no

rational basis to distinguish between the

15a

public exposure of either type of breast.

Defendant’s Memorandum of Law p. 13.

It is argued that there is no longer the support for the

gender bases [sic] classifications. That societal views of

women and concepts of public morality and decency have

changed rendering these classifications and unconstitutional

denial of equal protection. That argument is hereby rejected

by this Court. In rejecting the above argument, the Court

further rejects the ruling in People v. David, 585 N.Y.S.2d

149 (N.Y. 1991) wherein said Court found that “male and

female breasts are physiologically similar except for lactation

capability.” David at 68.

Female v. Female breast feeding

The second classification which the Defendant

challenges is the allowance in Brevard County Ordinance 95-

21 for exposure of a female’s breast in conjunction with

breast feeding. The Defendant claims that in one instance the

act of exposing a breast is criminalized but in another it is

not,

A rational basis test would be applicable to an equal

protection analysis as to this type of classification which does

not involve a fundamental or constitutionally protected right.

Does the ordinance bear a rational relationship to a legitimate

governmental purpose?

The exemption for the exposure of a breast of a

female breast feeding a child from the ordinance is in

deference to Section 383.015, Fla. Stat. (1995) which allows

for breast feeding in public.

The Defendant in this case contends that the exposure

of the breast is the same and that the basis for not allowing

the exposure still remains, that the exposure is morally

offensive. And given the legislative approval of breast

feeding in public, there is no longer a legitimate

governmental interest in the distinction (i.e. the changing

societal views and morality).

l6a

The State’s Position is that the intentional exposure of

a breast is not the same as the €xposure of a breast while

breast feeding and that the legislature has considered the

Policy behind allowing breast feeding. It asks that the Court

DONE and ORDERED in Melbourne, Brevard

County, Florida, this 17th day of July, 1996.

U/s//_ Philip Fou rousse

PHILIP FOUGEROUSSE

County Court Judge

17a

APPENDIX EXHIBIT “E”

IN THE COUNTY COURT OF

THE EIGHTEENTH JUDICIAL

CIRCUIT, IN AND FOR

BREVARD COUNTY, FLORIDA

CASENO. 96-19741-ACA

KRISTINA DAWN DAVIS,

Appellant,

VS.

STATE OF FLORIDA

Appellee.

Decision filed:

Appeal from Brevard County Court

Burton J. Green, Esq.

Attorney for Appellant

Michelle E. Jackson, Esq.

Assistant State Attorney

Attorney for Appellee

PER CURIAM.

This case is the result of an appeal from two lower

criminal cases where the Appellant was charged with

violations of Brevard County Ordinance 95-21 which

prohibits appearing nude in a public place. The Appellant

moved to dismiss both cases on Equal Protection and First

NG. hehe

18a

Amendment grounds. The motions were denied by the trial

court. The Appellant then pled nolo contendere specifically

reserving her right to appeal the denial of her motions to

dismiss. This Court has jurisdiction. '

The Appellant is a hot-dog vendor Operating a hot-

dog cart by the side of the road. On one occasion she

proceeded to sell hot-dogs Wearing only a thong bikini

bottom and pasties on her breasts. This is one of the two

cases consolidated on appeal. On another occasion, the

Appellant protested the anti-nudity ordinance, 95-2] , by

Wearing only a thong bikini bottom and no top such that her

breasts had no covering while Standing and waiving at the

side of the road. On her body, including her breasts, she had

protest writings directly on her skin. In addition, she carried

a sign of protest. In both cases she was arrested for violating

the county anti-nudity ordinance. The Appellant argues that

the exposure of her breasts as an act of political protest was

constitutionally protected conduct under the First

Amendment. The Appellant further argues that the anti-

nudity ordinance violates equal protection both as applied to

the male gender and as applied to nursing females who may

legally expose a breast while feeding a child.

The Appellant does not dispute that she violated

Ordinance 95-21. Rather she argues that her constitutional

rights as presented outweigh any requirement to adhere to

this ordinance. We disagree. Ruling only on the facts before

this Court, we hold that the Appellant was not entitled

“constitutionally” to violate the ordinance as part of her

protest against the ordinance. F irst, the ordinance clearly

withstands scrutiny under the four part test enunciated in

nited Sv. O'Brien, 391 U.S. 367, 20 L.Ed2d 672, 88

S.Ct. 1673 (1968):

'Rule 9.030(c)(1)(A), Fla. R. App. P.

ee

19a

[A] government regulation is sufficiently

justified if it is within the constitutional power

of the Government; if it furthers an important

or substantial governmental interest; if the

governmental interest is unrelated to the

suppression of free expression; and if the

incidental restriction on alleged First

Amendment freedoms is no greater than is

essential to the furtherance of that interest.

391 U.S., 367 and 376.

In O’Brien the Court reiterated it’s position that when

“speech” and “nonspeech” elements are combined in the

same course of conduct, an incidental limitation on First

Amendment freedoms is justified if there is a “sufficiently

important governmental interest” in regulating the

“nonspeech” element. Id. See also Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 115 L.Ed.2d 504, 111 S.Ct. 2456 (1991);

Cafe 207, Inc. v. St. Johns County, 66 F.2d 272 (11th Cir.

1995) (affirming the district court at 856 F.Supp. 641 (M.D.

Fla. 1994)).

In Adderley v. State of Florida, 385 U.S. 39, 46, 17

L.Ed.2d 149, 87 S.Ct. 242, 246 (1966) the Court reaffirmed

it’s position against the view that “people who want to

propagandize protests or views have a constitutional right to

do so whenever and however and wherever they please.” In

that case the Court held that protesters did not have the

contitutional [sic] protection to trespass on the property of the

county jail in a protest against prior arrests made on fellow

coilege students.

Therefore the Appellant did not have the inherent

right to break the very ordinance that she has a First

Amendment right to protest. She could very well have

demonstrated against and protested the ordinance by standing

along side of the road with protest signs or posters without

exposing her breast to the public. Based upon this holding,

ti

20a

this Court does not address the merits of the Appellant’s

Equal Protection arguments.

The trial court is AFFIRMED.

JACOBUS, Bruce W., and HOLCOMB, Charles M., JJ

concur.

JOHNSTON, Lawrence V., specially concurs with opinion.

Johnston, Lawrence V., concurring,

Apparently nudity bothers some People.

The Brevard County Sheriff's Office arrested the

2la

commercial benefit is ill-advised. There are more worthy

projects for our citizens, our lawyers and our judges.

HS _diedugitee Dia