# Amicus Curiae Brief — Frandsen v. Florida

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0718%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1160

## Text

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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0718%3A2. Public record. Not legal advice.