Petition for Writ of Certiorari — Frandsen v. Department of Environmental Protection

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03 veld vu 302008

In The

Supreme Court Of The United States

October Term, 2003

Dr. Marvin Frandsen, Petitioner

Department of Environmental Protection,

State of Florida, Respondent

On Petition for Writ of Certiorari

To the First District Court of Appeal

for the State of Florida

PETITION FOR WRIT OF CERTIORARI

Dr. Marvin Frandsen, pro se

4467 Country Rd.

Melbourne, FL 32934

ph: W 321.494.0543 / H 321.259.2297

fax: 321.259.2297

e-mail: marv-frandsen@cfl.rr.com

American Financial Printers 202.464.5500

QUESTIONS PRESENTED

Is Florida Administrative Code 64D-2.014(18) - the

‘Free Speech Rule’ that governs all First Amendment

activities in Florida state parks - facially constitutional?

EE

TABLE OF CONTENTS

Item Page

QUESTIONS PRON NR vec e652 these ene eeiaeees I

TABLE OF ALAIIIOIRITIES oo cues du te eee v

OPINIONS BELOW | 2.55 cc. an Vee eed

FURISDICTION occ ccvexdncs saees eee ee eee ee l

CONSTITUTIONAL PRLIV TIGNS 5 oc ccs cesses teesnnes |

STATUTORY PROVES 55.60 ee eee eee 2

REGULATORY PRUPVEIR Oe ios es ees ees 3

STATEMENT OF THE © Rte is oe eee ee ee ea 4

Part 1: Nature of Case 4

Part 2: Respondent 4

Part 3: Petitioner &

Circumstances of Case Beginning 4

Part 4: Meaning of the Rule 5

Part 5: How DEP Applies the Rule 6

Part 6: How DEP Regulates Non-Speech Conduct 7

Part 7: DEP Power to Control Speech Frequency

and Duration Under the Rule 7

Part 8: DEP Regulation of Sound Amplification

Under the Rule 8

Part 9: Chilling and Content Restriction of Speech

Due to DEP Delay 8

Part 10: DEP Enforcement Policies 9

Part 11: Citizen Recourse 10

Part 12: Proceedings in Lower Courts 10

il

ie CL ee 12

Il.

ITT.

IV.

FLORIDA STATE PARKS ARE TRADITIONAL

OR DESIGNATED PUBLIC FORA.........___. 12

RULE LANGUAGE IS VAGUE AND GRANTS

UNBRIDLED DISCRETION.............____ . 14

A. Safety Hazard Clause 14

B. Public Enjoyment Clause 15

C. Suitability Clause 7

DEP HAS FAILED TO SHOW THAT TIME,

PLACE AND MANNER REGULATION OF

SPEECH IN STATE PARKS REQUIRES

UNBRIDLED AD HOC DISCRETION ......____ 17

THE RULE IS UNCONSTITUTIONAL UNDER

THE FIRST AMENDMENT BECAUSE THE

LACK OF ASCERTAINABLE STANDARDS

ALLOWS COVERT CONTENT

DISCRIMINATION .......................... 21

THE RULE IS UNCONSTITUTIONAL UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS

BECAUSE OF LACK OF ASCERTAINABLE

STANDARDS AND UNBRIDLED DISCRETION

VIOLATES DUE PROCESS AND

IMPROPER DELEGATION GUARANTEES.... 23

TH

A

Vi. THE RULE IS UNCONSTITUTIONAL UNDER

THE FIRST, FIFTH AND FOURTEENTH

AMENDMENTS BECAUSE THE RULE IS

kk eT Cer Tee creer ee rrr

Vil. THE RULE IS UNCONSTITUTIONAL

BECAUSE PRIOR RESTRAINTS ARE

ISSUED UNDER COLOR OF THE RULE ....... 26

VIII. THE RULE’S DEFICIENCIES SHOULD BE

CURED BY FACIAL INVALIDATION

RATHER THAN CASE BY CASE

A ee eee 28

IX. PETITIONER HAS STANDING TO RAISE

FACIAL CHALLENGES TO THE RULE........ 29

X. ee eee ere CET TO eee 30

1V

TABLE OF AUTHORITIES

CASES

Case Page(s)

ACLU v. The Florida Bar,

999 F.2d 1486 (11th Cir. 1992) 29

Ass‘n of Community Organizations for Reform Now

v. Golden, Colorado,

744 F.2d 739 (10th Cir. 1984) 20

Babbitt v. Farm Workers,

422 U.S. 289 (1979) 29

Baggett v. Bullitt,

377 U.S. 360 (1964) 28

Bay-Area Peace Navy v. U.S.

914 F.2d 1224 (9th Cir. 1994) 20

Beckerman v. City of Tupelo, Mississippi.

664 F.2d 502 (5th Cir. 1981) 16

Berger v. Battaglia,

779 F.2d 992 (4th Cir. 1985) 16

Board of Airport Commissioners v. Jews for Jesus,

482 U.S. 569 (1987) 28

Boos v. Berry,

485 U.S. 312 (1988) 12

Bose Corp. v. Consumers Union of U.S. Inc,

466 U.S. 585 (1984)

Broadrick v. Oklahoma

413 U.S. 601 (1973)

Brown v. Louisiana,

383 U.S. 131 (1966)

Campbell v. Brevard County,

No. 95-1219-CIV-ORL-22 (M.D. Fla. 1996)

26

16

14

Cannabis Action Network, Inc. v. City of Gainesville,

231 F.3d 761 (11th Cir. 2000)

Carey v. Brown,

447 U.S. 455 (1980)

Carroll v. Commissioners of Princess Anne,

393 U.S. 175 (1968)

Coates v. Cincinnati,

402 U.S. 611 (1971)

Community tor Creative Non-Violence v. Turner,

893 F.2d 1387 (D.C. Cir. 1990)

Connor v. Palm Beach County,

1996 WL 438779 (S.D. Fla. 1996)

~

27

23-26

13

lo

Cortes v. State Board of Regents,

655 So.2d 132,

1995.FL.954 (Fla. Ist DCA 1995)(Versuslaw) 29

Cox v. Louisiana,

379 U.S. 536 (1965) 21

Crowder v. Housing Authority of City of Atlanta,

99() F.2d 586 (11th Cir. 1993) 22

Edwards v. City of Coeur D'Alene,

No. 00-35537, 262 F.3d 856, -

2001.C09.0000580 (9th Cir. 2001)(Versuslaw) 20

Fernandes v. Limmer,

663 F.2d 619 (5th Cir. 1981) ~ 14

For Your Eyes Alone, Inc.

y. City of Columbus, Georgia

No. 01-13317, 281 F.3d 1209,

2002.C 1 1.0000045

(11th Cir. 2002)(Versuslaw) 22

Forsyth Cy. v. Nationalist Movement

505 U.S. --, 112 S.Ct. --,

120 L.Ed.2d 101 (1992) 17, 21

Frandsen v. Department of Environmental Protection,

Case No. 01-0527RX (Fla. DOAH 2001) passim

‘ _Environmental Pr

Case No. 01D01-4267,

829 So. 2d 267 (Fla Ist. DCA 2002) passim

Vl

Frisby v. Schultz,

487 U.S. 474 (1988)

ile v. State

501 U.S. 1030 (1991)

Gilbreath v. State,

~650 So.2d 10,

1995.FL.236 (Fla. 1995)(Versuslaw)

Grayned vy. City of Rockford,

408 U.S. 104 (1972)

Hague v. CIO,

307 U.S. 496 (1939)

Hardwick v. Bowers,

760 F.2d 1202 (11th Cir. 1985)

478 U.S. 186 (1986)

Harris v. McRae,

448 U.S. 297 (1980)

Houston v. Hill

482 U.S. 451 (1987)

vy. Irish-

132 1.Ed.2d 487 (1995)

»y Haven v. Bd. of Trustees o ma

427 So.2d 153 (Fla. 1982)

Keyishian v. Board of Rege

385 U.S. 589 (1967)

s of New Yo

Vi

mp.

lo

30

30

10

N

1)

lender v. Lawson

461 U.S. 352 (1983) 24

Krishna Society v. Lee,

505 U.S. 672 (1992) 13

Lakewood v. Plain Dealer,

486 U.S. 750 (1988) 21

LeFlore v. Robinson,

434 F.2d 933 (5th Cir. 1970) 15

Madison Joint School District

v. Wisconsin Employment Relations Comm’‘n,

428 U.S. 167 (1976) 13

NAACP vy. Button,

371 U.S. 415 (1963) 22, 25

Naturist Society v. Fillyaw,

858 F.Supp. 1559 (S.D. Fla. 1994) 14, 16

Naturist Society v. Fillyaw,

958 F.2d 1515 (11th Cir. 1992) 13,18

Nebraska Press Ass‘n v. Stewart,

427 U.S. 539 (1975) 26

Perry Ed. Assn. v. Perry Local Ed. Assn.

460 U.S. 37 (1983) 13

Phillips v. Borough of Keyport,

107 F.3d 164 (3d Cir. 1997) 20

Rubin v. City of Santa Monica,

823 F.Supp. 709 (C.D. Ca. 1993)

Saia v. New York,

334 U.S. 558 (1948)

Shuttlesworth v. Birmingham,

394 U.S. 147 (1969)

Smith v. Goguen,

415 U.S. 566 (1974)

Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975)

Speiser v. Randall,

357 U.S. 513 (1958)

Summum vy. City of Ogden,

No. 01-4022, 297 F.3d 995,

2002.C10.0000800

(10th Cir. 2002)(Versuslaw)

Thompson v. Western States Medical Center,

122 S.Ct. 1497,

153 L.Ed.2d 563,

2002.SCT.0000071 (U.S. 2002)(Versuslaw)

Turner Broad. Sys. Inc. v. FCC,

512 U.S. 622 (1994)

United States v. Grace,

461 U.S. 171 (1983)

14

27

14, 15, 17

24

19

19

12, 13, 18

United States v. Kokinda,

497 U.S. 720 (1990)

United States v. Salerno,

481 U.S. 739 (1987)

United States v. Treasury Employees,

513 U.S. --, 115 S.Ct. --,

130 L.Ed.2d 964 (1995)

U.S. v. Doe,

968 F.2d 86 (D.C. Cir. 1992)

U.S. v. Frandsen,

212 F.3d 1231 (11th Cir. 2000)

Watchtower v. Village of Stratton,

No. 00-1737,

122 S.Ct. 2080,

153 L.Ed.2d 205,

2002.SCT.0000117 (U.S. 2002)(Versuslaw)

Women Strike For Peace v. Morton,

472 F.2d 1273 (D.C. Cir. 1972)

Widmar v. Vincent,

454 U.S. 263 (1981)

Young v. City of Simi Valley,

No. 97-56484

2000.C09.0042344

(9th Cir. 2000)(Versuslaw)

x1

12

23

20

19

16

STATUTES

§ 120.56(3), Florida Statutes 2, 10, 28, A. 1

§ 120.569, Florida Statutes 2, 28-29, A. 1

§ 120.57, Florida Statutes 3, 29, A. 6

§ 120.68, Florida Statutes 3,29, A. 15

§ 258.007(2), Florida Statutes 3,9

FLORIDA ADMINISTRATIVE CODE RULES

Florida Administrative Code 62D-2.014(18) passim

XI

MY NAN 8 rit

OPINIONS BELOW

The final order and opinion of the Division of

Administrative Hearings of the State of Florida is given at A.

30-60. The final order and opinion of the First District Court

of Appeal, State of Florida, is given at A. 76-81. The Order of

the First District Court of Appeal, State of Florida, denying

Petitioner’s Motion for Rehearing and Rehearing En Banc is

given at A. 82. The Order of the Florida Supreme Court

denying review to Petitioner is given at A. 83. (The

Appendix is cited to as A.)

JURISDICTION

The order sought to be reviewed is the final order of

the First District Court of Appeal, State of Florida, entered on

September 12, 2002. Petitioner’s motion for rehearing and

rehearing en banc was denied on November 6, 2002.

Petitioner filed « Notice of Appeal to the Florida Supreme

Court on the timely filing date of December 3, 2002 with a

timely filing date of December 10, 2002 for a required brief

arguing that the Florida Supreme Court had jurisdiction

under the Florida Constitution’s restrictive conditions.

The Florida Supreme Court determined it did not

have jurisdiction to review the case and denied review on

May 7, 2003.

Jurisdiction to review this case is vested in this Court

via 28 U.S.C. § 1257(A).

CONSTITUTIONAL PROVISIONS

The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

Petition: Page 1 of 30

as

atl

people peaceably to assemble, and to petition

~ the Government for a redress of grievances.

The Fifth Amendment to the United States

Constitution provides:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in actual

service in time of War or public danger; nor

shall any person be subject for the same

offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public use, without just :

compensation.

The Fourteenth Amendment to the United States

Constitution, section 1 provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without

: due process of law; nor deny to any person

within its jurisdiction the equal protection of

the laws.

STATUTORY PROVISIONS

§ 120.56(3), Florida Statutes, is given at A. 1.

Petition: Page 2 of 30

§ 120.569, Florida Statutes, is given at A. 1-6.

§ 120.57, Florida Statutes, is given at A. 6-15.

§ 120.68, Florida Statutes, is given at A. 15-19.

§ 258.007(2), Florida Statutes, provides:

The division has authority to adopt rules

pursuant to ss. 120.536(1) and 120.54 to

implement provisions of law conferring duties

on it, and the violation of any rule authorized

by this section shall be a misdemeanor and

punishable accordingly.

REGULATORY PROVISIONS

Florida Administrative Code 62D-2.014 is given in

entirety at A. 19-27.

The regulation being challenged here, Florida

Administrative Code 62D-2.014(18)(hereafter ‘Rule’),

provides:

Free Speech Activities. Free speech activities

include, but are not limited to, public

speaking, performances, distribution of

printed material, displays, and signs. Free

speech activities do not include activities for

commercial purposes. Any persons engaging

in such activities can determine what

restrictions as to time, place, and manner may

apply, in any particular situation, by

contacting the park manager. Free speech

activities shall not create a safety hazard or

interfere with any other park visitor's

enjoyment of the park's natural or cultural

experience. The park manager will determine

the suitability of place and manner based on

park visitor use patterns and other visitor

i activities occurring at the time of the free

speech activity.

Petition: Page 3 of 30

STATEMENT OF THE CASE

Part 1: Nature ~* Case

This case is at. al constitutional challenge to a rule

of the Respondent, Department of Environmental Protection,

State of Florida. Said rule, Florida Administrative Code 62D-

2.014(18))(‘Rule’) regulates all First Amendment activity

conducted within Florida’s state parks.

Part 2: Respondent

Respondent is the Department of Environmental

Protection, State of Florida (hereafter ‘DEP’). The DEP is an

agency of the State of Florida which manages and operations

state parks through its Division of Recreation and Parks (A.

34-35). ‘

The DEP manages the fourth largest state park

system in the nation, consisting of 155 state parks comprising

over half a million acres (A. 35). Florida state parks see

about 16 million visitors per year (A. 35).

Part 3: Petitioner & Circumstances of Case Beginning

Petitioner is Dr. Marvin Frandsen (hereafter

‘Frandsen’), a citizen of the United States and of the State of

Florida (A. 33).

Frandsen is a political activist who wishes to

communicate with the public in state parks concerning

general political and social issues (Tr. at 418, 463). Frandsen

is a member of Tampa Area Naturists, a volunteer nonprofit -

advocacy group (Tr. at 446).

Frandsen’s desired methods of communication

include handing out literature, participating in theatrical and

dramatic presentations, political demonstrations, display of

banners and signs, display of culture and art, conducting

expressive parades, and so forth (Tr. at 418). Frandsen also

wishes to be an audience member for the similar free speech

activities of others (Tr. at 41, 453-454, 458, 462).

Frandsen specifically wishes to advocate for limited,

designated beachfront areas within state parks where

citizens can recreate sans swimsuits (A. 33-34, Tr. at 441-442).

This cause is a source of tension with the DEP (Tr. at 438-

439).

Petition: Page 4 of 30

sa T

On 28 October 2000 Frandsen sent a coordination

letter to the DEP park manager at Honeymoon Island State

Park, Florida. This letter summarized several planned free

speech activities on the date of 2 December 2000 for a small

group of 15-20 persons. On 29 October 2000 Frandsen

amended his coordination letter to include the use of sound

amplification (Tr. at 420).

Frandsen received no response to his coordination

letter. On 20 November 2000 Frandsen sent a second

coordination letter to said park manager. This second letter

likewise produced no response from the park manager.

On 28 November 2000 the DEP responded not

through its park manager but via attorneys at DEP’s Division

of Recreation and Parks headquarters. Said attorneys

represented the DEP in placing several time, place and

manner restrictions on Frandsen’s planned free speech

activities. Of interest to this case was the imposition of a

complete ban on sound amplification (A. 28-29) issued under

authority of the Rule via the Rule’s public enjoyment clause

(Tr. at 334, 340, 368).

The DEP stated that its park manager would contact

Frandsen “as soon as possible.” No contact occurred. Asa

result Frandsen was left in a state of uncertainty (Tr. at 422-

423). Ultimately because Frandsen considered the DEP

restrictions to be untimely , unworkably severe, and

ambiguous to cause fear and uncertainty over the speech

restriction situation, Frandsen canceled the planned free

speech activity (Tr. at 419-420, 430, 458).

(The transcript of the final hearing held before the

Division of Administrative Hearings, State of Florida, May

30-31, 2001, is cited to as Tr.)

Part 4: Meaning of the Rule

The Rule is intended to implement an explicit DEP

policy to welcome free speech activities in state parks (A. 37).

The Rule is further intended to serve as notice to the public

and DEP staff that First Amendment activity in state parks is

OK, allowable and acceptable (A. 37).

DEP employees and citizens understand the Rule

only via the text of the Rule. No other interpretive aids have

Petition: Page 5 of 30

been promulgated by the DEP (A. 39).

The Rule’s sweep is very broad. The Rule is intended

to apply to anything covered by the First Amendment,

whether it be oral, written or symbolic conduct, whether

engaged in by a group or a single individual (A. 37). Because

virtually any and every activity in state parks includes some

form of free speech, nearly ali activities in state parks are

therefore subject to the Rule (A. 37).

The definition of a ‘safety hazard’ is very broad (A.

38). The scope of ‘safety hazard’ is ultimately limited only by

the fairness and personal judgment of a park manager or

park police officer (Tr. at 241, 374, 375, 403-405).

The definition of ‘interfere with any other park

visitor’s enjoyment of the park’s natural or cultural

experience’ is any activity which through visual or noise or

whatever else it might be, takes away serenity or enjoyment

(A. 37-38, Tr. at 509). Interference with public enjoyment can

include general discomfort for any reason (Tr. at 274), and

can range from extreme to “very minor” (Tr. at 535). Visitor

expectations of enjoyment are highly diverse, with some

visitors more sensitive than others (Tr. at 308). Potentially

there is not anything that a speaker might do anywhere in a

park that might not interfere with someone’s enjoyment of

the park (Tr. at 55).

The definition of ‘park visitor use pattern’ and ‘other

visitor use activity’ are all-encompassing terms tor

everything that is happening in a park (A. 38, Tr. at 350).

There are no activities in a park which do not constitute a

‘park visitor use pattern’ or an ‘other visitor use activity.’ (Tr.

at 376).

Part 5: How DEP Applies the Rule

The Rule itself does not state, provide for or cause

any specific restriction to be placed on a free speech

activity. The Rule acts by delegating authority to park

managers ant dark police to create and implement all

specific restrictions on speech (A. 38-39).

Each determination of restrictions to be placed on

speech is made by DEP park managers or park police on an

ad hoc, case-by-case basis. DEP discretion is limited only by

Petition: Page 6 of 30

it Nab SS Ms A Sai ig PSE a se AS Seca atl

the criteria stated within the Rule (A. 39). DEP employees

never publicly post or otherwise publicly provide any

standing restrictions on free speech activities (A. 38-39).

Prior contact with a park manager is not legally

required by the Rule before one may engage in a free speech

activity (A. 39). However the only means by which speakers

can determine what restrictions they will face is via prior

contact with a park manager (A. 39-40).

The Rule does not state any time limit within which

park managers must respond to a speaker's request to know

what restrictions will be levied on an activity (A. 40). Asa

result there are no limits on a park manager’s discretion as to

when s/he will respond to a speaker’s request (Tr. at 208).

Although a 2-3 week period is “typical”, if “complexities”

arise then the DEP’s response may be delayed to an

undetermined later time, a period which may expand into

months (A. 40, Tr. at 208, 209)(Court Record at 346-351, 388-

389).

In the face of DEP non-response speakers are in a

legal sense free to conduct their free speech activity without

waiting (A. 40, Tr. at 209). However these persons do as at

risk of unknown on-the-spot restrictions being imposed

under coior of the Rule (Tr. at 269).

Part 6: How DEP Regulates Non-Speech Conduct

DEP does not rely on an ad loc, case by case approach

when regulating non-speech conduct. DEP regulation of

non-speech conduct is accomplished by creating generally

applicable rules and regulatory decisions which apply to

everyone and which are priorly noticed to the public (A. 19-

27, 36, 75).

Part 7: DEP Power to Control Speech Frequency and

Duration Under the Rule

DEP may limit speech to a frequency of once a year or

even once every 10 years (Tr. at 237-238).

DEP may limit speech to a duration of one minute or

less (Tr. at 239).

DEP power to impose restrictions on speech is limited

only by the judgment and fairness of the park manager (Tr.

at 240-241).

Petition: Page 7 of 30

Part 8: DEP Regulation of Sound Amplification

Under Color of the Rule

The DEP does not ban sound amplification as a

general practice (Tr. at 32-33).

DEP bans of sound amplification are discretionary

edicts conducted on a case-by-case basis (Tr. at 327) based on

the park manager’s personal assessment of the impact on

public enjoyment, tranquility and serenity (e.g. when the

DEP believes a park visitor is or may become annoyed) (Tr.

at 221-222, 367-370), possible impact on wildlife (Tr. at 221,

327, 328), and in general a park manager’s own judgment of

the “fairness” of his/her order to ban sound amplification

(Tr. at 206).

The DEP allows the impromptu use of sound

amplification at the Honeymoon Island State Park where this

case began (Tr. at 513-514). DEP allowance of sound

amplification includes recreational radio playing on the

’ beach, the same setting as Frandsen’s planned free speech

activity (Tr. at 370).

The DEP has no record of public complaints in

response to the use of amplified sound during

demonstrations, rallies, plays, and similar free speech

activities conducted in state parks (Tr. at 433-435, Court

Record at 210).

Part 9. Chilling and Content Restriction of Speech

Due to DEP Delay

Speaker witnesses testified that speakers who wish to

conduct rallies, demonstrations, parades, theatrical events or

other organized free speech activities may have their speech

impeded and chilled by uncertainties about which

restrictions will be faced under the Rule. For example,

logistical issues in practical terms may need to be resolved

within a reasonable time prior to conducting the activity so

that the group can organize the activity and communicate

within and outside the group to potential audience members

(Tr. at 94, 95, 419).

Speech is chilled because of uncertainty as to

permissible location, permissible time duration, whether

sound amplification may be used, whether or not facilities

Petition: Page 8 of 30

oh ia Deo enue cis 6 weasel aa

i

Lae sg Pena

and space will be available, and whether or not speakers may

run afoul of the public enjoyment clause of the Rule (Tr. at

161-162, 439, 532, 533).

Risk and uncertainty impedes a speaker's ability to

reach an audience (Tr. at 422, 423). Uncertainty and risk

causes speakers to act conservatively and restrict which

messages will be communicated and what activities will be

conducted, to the point where the level of fear and

uncertainty will make the difference between successfully

conducting a free speech activity or giving up entirely (Tr. at

419, 421-423).

Part 10: DEP Enforcement Policies

Violation of any restriction placed on First

Amendment activities under color of the Rule is a second

degree misdemeanor (§ 258.007(2), Florida Statues, Tr. at

335). Violations may be enforced by arrest (Tr. 218, 374, 401).

Enforcement is conducted by DEP’s Division of Law

Enforcement (“park patrol”) (Tr. at 258).

When a park manager believes a violation of

restrictions placed under color of the Rule has occurred s/he

may call the park patrol to make an arrest (Tr. at 236, 400).

When the park patrol arrives, a statement by a park manager

that his/her restrictions are being violated constitutes

sufficient cause for an arrest (Tr. at 406).

The park patrol will also respond to citizen complaint

(Tr. at 405). A single complaint is sufficient to trigger

enforcement (Tr. 309). Park patrol officers also make routine

patrols which could independently result in arrests for

violation of restrictions placed via the Rule (Tr. at 406).

Actual arrest is not automatic but depends on a

discretionary assessment of the conduct and situation by the

park patrol officer (Tr. 400, 401, 403).

The park patrol officer’s decision to arrest or not

would include looking at the text of the Rule and making a

judgment concerning all of the components of the Rule. This

would include the park patrol officer making an assessment

of visitor use patterns (Tr. at 403), the public enjoyment

clause (Tr. at 402), and an assessment of the existence of a

safety hazard as per the park patrol officer’s own judgment

Petition: Page 9 of 30

and discretion (Tr. at 404-405). These determinations would

depend-on the officer’s weighting of a number of factors

including his or her personal assessment of traffic patterns,

time of day, and the officer’s estimation of the possibility or

probability of user conflict (Tr. at 410-411).

Park patrol practice is to “educate” and “warn” prior

to making an arrest. An arrest is a final option that is -

conducted on a case-by-case basis (Tr. at 411, 437-438).

# : Citize se

lf a park manager or park police officer's fairness or

reasonableness is contested by a citizen an internal review

may occur but the final decision is made only according to

the judgment of the DEP. The only remaining recourse for a

citizen is to initiate formal proceedings in the Division of

Administrative Hearings (A. 40-41, 58-59). In any such

proceeding the burden of proof is on the petitioner, not the

government (A. 10, 17- 18, 41).

This case began as a rule challenge in Florida’s

Division of Administrative Hearings (DOAH) pursuant to §

120.56(3), Florida Statutes (A. 1).

Because DOAH is a state executive branch agency

DOAH may not hear constitutional challenges. As per the

direction of the Florida Supreme Court in Key Haven v. Bd.

of Trustees of Internal Imp., 427 So.2d 153, 158 (Fla. 1982), if a

case begins in state administrative court then all state and

federal constitutional challenges must be raised for the first

time on appeal to a District Court of Appeal.

Frandsen’s brief to the lower court (Florida First

District Court of Appeal) raised the following federal

constitutional challenges (A. 61-74):

The Rule is facially unconstitutional for violating

U.S. Constitutional guarantees of due process.

b. The Rule is facially unconstitutional for violating -

U.S. Constitutional standards for proper delegation of

authority to enforcement agencies and individuals.

c. The Rule is facially unconstitutional due to

allowing content-based restrictions on speech.

d. The Rule is facially unconstitutional under the Ist,

Petition: Page 10 of 30

sae

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5th and 14th Amendments due to allowing excessive

discretion.

e. The Rule’s statutory language is facially

unconstitutional due to excessive vagueness and discretion.

f. The Rule is unconstitutionally overbroad under the

Ist, 5th and 14th Amendments due to delegating the power

to impose unconstitutional prior restraints while failing to

provide required prior restraint due process safeguards.

In response to Frandsen’s challenge (c) above

regarding overt content-based restrictions, the DEP agreed

that Rule language could be construed to improperly allow

DEP employees to restrict speech based on speech content

and audience reaction (DEP Answer Brief p. 24). DEP urged

the lower state court to narrowly construe the Rule to

preclude overt content discrimination (DEP Answer Brief p.

25).

The lower state court accepted Respondent's

invitation to narrowly construe the Rule to exclude overt

content discrimination including public emotional reaction to

speech content (A. 80-81).

The lower state court briefly addressed Petitioner's

prior restraint challenge (f) (A. 78).

Most of the lower state court opinion treated the Rule

under the standard three pronged time, place and manner

analysis test (A. 78-81), even though the Rule places no

specific restrictions on speech of itself (Part 5 above), but

only delegates such power .

Otherwise the lower state court never explicitly

addressed Petitioner’s constitutional challenges (a), (b), (d)

and (e) above. The lower state court only carte blanche held

the Rule facially constitutional (A. 81).

Frandsen timely filed a Motion for Rehearing and

Motion for Rehearing En Banc. The lower state court denied

this motion on November 6, 2002. (A. 82). Frandsen timely

filed a Notice of Appeal and jurisdictional brief with the

‘lorida Supreme Court. The Florida Supreme Court denied

review on jurisdictional grounds on May 7, 2003 (A.83).

Petition: Page 11 of 30

ARGUMENT

- FLORIDA STATE PARKS ARE TRADITIONAL

OR DESIGNATED PUBLIC FORA

This Court has long emphasized the “central

importance of protecting speech on public issues” which as

“led us to scrutinize carefully any restrictions on public issue

picketing.” Boos v. Berry, 485 U.S. 312, 318 (1988). This

protection is at its highest concerning speech “on public

streets and sidewalks, traditional public fora that ‘time out of

mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discus’ . xg

public questions.’ “ Id. at 318.

This Court has held that speech conduct, e.g. public

issue picketing, is “an exercise of ... basic constitutional rights

in their most pristine and classic form” which “has always

rested on the highest rung of the hierarchy of First

Amendment values.” Carey v. Brown, 447 U.S. 455, 466

(1980). Because our society is becoming more insular the

need to protect free speech rights in “public places where

traditional modes of speech and forms of expression can take

place” is more essential than ever. United States v. Kokinda,

497 U.S. 720, 737 (1990)(Kennedy, J., concurring).

All public parks and roads - including roads inside of

public parks - are quintessential traditional public fora,

wherein free speech “from ancient times, has been a part of

the privileges, immunities, rights and liberties of citizens.”

Hague v. CIO, 307 U.S. 496, 515 (1939).

This Court has made it clear that which government

entity may happen to own a public forum, e.g. a park, is

irrelevant for public forum purposes. Hague, supra at 515

(“Wherever the title of streets and parks may rest ...”)

United States v. Grace, 461 U.S. 171, 177 (1983)(“streets,

sidewalks, and parks, are considered without more, to be

‘public forums.’”) Erisby v. Schultz, 487 U.S. 474, 481 (1988)

("No particularized inquiry into the precise nature of a

specific street is necessary; all public streets are held in the

public trust and are properly considered traditional public

Petition: Page 12 of 30

fora.")

A public forum (e.g. a road or sidewalk) does not lose

public forum status if it abuts nonpublic forum land.

Grace,supra at 180.

The Eleventh Circuit has held that Florida state parks

are traditional public fora. Naturist Society v. Fillyaw, 958

F.2d 1515, 1521-1523 (11th Cir. 1992). See also U.S. v.

Frandsen, 212 F.3d 1231, 1237 (11th Cir. 2000).

Even if arguendo the state parks are not traditional

public fora, the DEP enacted the Rule to give notice to the

public and its own staff that free speech events are welcome

in state parks (A. 39)

The DEP’s intentional opening of the state parks to

free speech activities gives the state parks designated public

forum status. Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546 (1975)(municipal auditoriums and theaters were

public fora because they were dedicated to expressive

activities); 5

Employment Relations Commi‘n, 428 U.S. 167 ( 1976)(state

statute providing for open school board meetings created

public forum); Widmar v. Vincent, 454 U.S. 263, 267

(1981)(state university created forum through policy of

accommodating student meetings); Community for

Creative Non-Violence v. Turner, 893 F.2d 1387, 1391 (D.C.

Cir. 1990)(“the above ground free areas are designated public

fora because, by promulgating the Regulation ... the

WMATA has indicated an intent to open these areas to a

wide range of free speech activities.”)

In opening the state parks to expressive activity via

enacting the Rule, the DEP is obligated to follow the rules of

traditional public fora. Perry Ed. Assn. v. Perry Local Ed.

Assn., 460 U.S. 37, 46 (1983)(a designated forum “is bound by

the same standards as apply in a traditional public forum.”)

Krishna Society v. Lee, 505 U.S. 672, 678 (1992)(“Regulation

of such property is subject to the same limitations as that

governing a traditional public forum.”)

Petition: Page 13 of 30

II. RULE LANGUAGE IS VAGUE AND GRANTS

UNBRIDLED DISCRETION

A. Safety Hazard Clause

As per the facts above, the Rule grants authority to

the DEP to restrict speech activities on a case by case basis

from causing a ‘safety hazard’ without further qualification.

The determination of a ‘safety hazard’ is literally whatever a

DEP park manager or park patrol officer wants to call a

‘safety hazard.’ No check or balance exists to restrain a DEP

park manager or patrol officer from making trivial or

pretextual determination of a ‘safety hazard’ in order to

covertly suppress speech on the basis of content or hostility

to the particular speakers.

Such unrestricted definition and application of a law

is the sin qua non of unbridled discretion.

In contrast to the lower state court, this Court and the

federal appellate courts have condemned standardless

‘safety hazard’ language as intolerable under the U.S.

Constitution. Shuttlesworth v. Birmingham, 394 U.S. 147, 150

(1969)(Ordinance improperly allowed officials to restrain

speech according to their own ideas of safety.) Fernandes v.

Limmer, 663 F.2d 619, 631 (5th Cir. 1981)(Allowing an official

to regulate speech depending on the official's ad hoc good

reason perception of a ‘direct and immediate danger or

hazard to the public security, health, safety’ held to

constitute unbridled discretion.) Naturist Society, Inc. v.

Fillyaw, 858 F.Supp. 1559, 1570 (S.D. Fla. 1994)(The phrase

“present a clear and present danger to the public health and

safety” ruled unconstitutionally vague and discretionary.)

Rubin v. City of Santa Monica, 823 F.Supp. 709, 713 (C.D. Ca.

1993)(“the ordinance is impermissibly vague as it does not

define ‘public nuisance’ or ‘detrimental to public health and

safety.’ “). Campbell v. Brevard County, No. 95-1219-CIV-

ORL-22 (M.D. Fla. 1996)(Leaving determination of which

facilities and which activities constitute a ‘hazard’ to official

judgment constitutes unbridled discretion.)

Petition: Page 14 of 30

B. Public Enjoyment Clause

As per the facts above, the Rule delegates authority to

DEP employees to ban or restrict speech activities which

‘interfere with any other park visitor’s enjoyment of the

park’s natural or cultural experience.’

The lower state court narrowed the Rule’s public

enjoyment clause to be facially content neutral in that the

public enjoyment clause can not be applied to public

reactions which overtly stem from the content of the speech

(A. 81-82).

The lower state court did not narrow the Rule’s

language to prevent covert discrimination against disfavored

speech or speakers.

The DEP holds that loss of ‘enjoyment’ means

anything and everything that bothers anyone, no matter how

trivial (or pretextual), including a ‘general discomfort’ which

anyone holds for any reason. The DEP holds that anything a

speaker might do anywhere in a park might interfere with

someone’s enjoyment of the park.

The DEP holds that a single complaint from any

visitor is sufficient to trigger enforcement under the Rule.

The vagueness of ‘enjoyment’, ‘natural or cultural

experience’, and the lack of any standards for DEP decisions

based on these undefinable criteria provides unbridled

discretion to the DEP.

The public enjoyment clause of the Rule provides

unlimited discretion to pretextually restrict speech because of

covert hostility to speakers or the content of the speech. The

DEP need merely, without any demonstrable foundation,

assert that someone, somewhere might be adversely if

minimally impacted by a free speech event.

In contrast to the lower state court, this Court and

other federal courts have rejected standardless language

similar to the public enjoyment clause of the Rule.

Shuttlesworth v. Birmingham, 394 U.S. 147, 150 (1969)

(Officials cannot be allowed to be guided only by their own

ideas of “public welfare, peace, safety, health, decency, good

order, morals or convenience.” ). LeFlore v. Robinson, 434

F.2d 933, 941 (5th Cir. 1970)(‘Peace and tranquillity’ language

Petition: Page 15 of 30

unconstitutional because terms could make criminal the :

peaceful expression of unpopular views.) Naturist Society v.

Fillyaw, 858 F.Supp. 1559, 1570 (S.D. Fla. 1994)(Phrase

“unreasonably impair the atmosphere of peace and

tranquillity” found unconstitutionally vague and

discretionary.) Connor v. Palm Beach County, 1996 WL

438779, p. 10 (S.D. Fla. 1996)(Phrase “cause interference to ...

proper uses of a park or recreational area” unconstitutional

for too much discretion.) Gilbreath v. State, 650 So.2d 10,

1995.FL.236, P. 38 (Fla. 1995)(Versuslaw)(“ ‘Offend’ and

‘annoy’ are indefinite as to meaning and give rise to

subjective vague connotations.”)

The Rule’s standardless language provides hostile

members of the public unlimited power to pretextually

institute a ‘heckler’s veto’ by claiming some nebulous impact

on their ‘enjoyment.’

This Court has held a heckler’s veto to be

unconstitutional even where violence and disorder is

threatened, much less some nebulous and poorly defined

tranquility or enjoyment. Brown v. Louisiana, 383 U.S. 131,

135 (1966)(Holding that a definition which “would allow

persons to be punished merely for peacefully expressing

unpopular views” to be unconstitutional.)

In contrast to the lower state court, the federal

appellate courts have found heckler’s vetoes to be

unconstitutional. Young v. City of Simi Valley, No. 97-56484,

2000.C09.0042344, P. 55 (9th Cir. 2000)(Versuslaw)

(Government may not delegate to favored private parties the

unfettered power to veto, without standards or reasons,

another’s right to engage in constitutionally protected

freedom of expression.) Beckerman v. City of Tupelo,

Mississippi, 664 F.2d 502, 509 (5th Cir. 1981)(“it is not

acceptable for the state to prevent a speaker from exercising

his constitutional rights because of the reaction to him by

others.”) Berger v. Battaglia, 779 F.2d 992, 1001 (4th Cir.

1985)(Holding that “Government's instinctive and

understandable impulse to buy its peace” may not lead to a

heckler’s veto.)

Petition: Page 16 of 30

Cn PettS rr age ek ery ARS eae

C. Suitability Clause

As per the facts above, the Rule allows DEP

employees to restrict speech by self-determining on an ad hoc

case by case basis the ‘suitability of place and manner based

on park visitor use patterns and other visitor activities at the

time of the free speech activity.’

The DEP holds that the definitions of ‘park visitor use

pattern’ and ‘other visitor use activity’ are simply all-

encompassing terms for everything that is happening in a

park.

The Rule provides no ascertainable standards

whatsoever to limit DEP discretion in determining

‘suitability of place and manner.’ |

Because the Rule lacks any ascertainable standards as

to what is ‘suitable’ or not, and because the rule is applied ad

loc on a case by case basis without any other policy

statements or refinements, the Rule’s suitability clause is an

all-purpose excuse for the DEP to restrict speech ina

pretextual way so as to discriminate against disfavored

speakers and message content.

IIT. DEP HAS FAILED TO SHOW THAT TIME,

- PLACE AND MANNER REGULATION OF

SPEECH IN STATE PARKS REQUIRES

UNBRIDLED AD HOC DISCRETION

The issue of whether the DEP ‘needs’ the Rule’s

unbridled discretion to manage the ‘complexity’ of speech in

state parks should be moot. The DEP’s regulatory approach

is flatly unconstitutional on its face.

This Court has already emphatically rejected the

convenience of discretionary power as a valid regulatory

approach to restrictions on speech. Shuttlesworth v.

Birmingham, 394 U.S. 147, 150 (1969) (Officials cannot be

allowed to be guided only by their own ideas of “public

welfare, peace, safety, health, decency, good order, morals or

convenience.”). Forsyth Cy. v. Nationalist Movement, 120

L.Ed.2d 101, 111 (1992)(Discretion is inherently incompatible

Petition: Page 17 of 30

with time, place and manner restriction of speech.)

Nevertheless because of the persistence of this issue

in this case the following direct arguments will be stated.

Frandsen does not dispute that within the public

forum of state parks the DEP may impose specific reasonable

content-neutral time, place, and manner restrictions (when

not giving itself unbridled discretion) to protect legitimate

government interests.

Further, said restrictions may legitimately reflect the

special characteristics of certain areas of parks, such as those

with special conservation goals. Grayned v. City of

Rockford, 408 U.S. 104, 116 (1972)(“The crucial question is

whether the manner of expression is basically incompatible

with the normal activity of a particular place at a particular

time.”) Naturist Society v. Fillyaw, 958 F.2d 1515, 1523 (11th

Cir. 1992)(same, specifically as to beach areas of state parks).

That being said, the DEP may not by arbitrary fiat

(‘ipse dixit’) erase the public forum status of any portion of a

public forum. United States v. Grace, 461 U.S. 171, 180

(1983).

Frandsen does dispute the DEP’s unsupported

assertions that the unlimited discretionary authority granted

in the Rule is necessary for the DEP to regulate speech

activities in state parks.

The court record makes clear and the DEP admits

that standing conduct rules effectively regulate a wide

variety of conduct in the diverse state parks, e.g. park

closures, traffic control, swimming, boating, fishing, hunting,

alcohol, pets, merchandising, and aircraft (A. 20-27, 76).

In all of these situations state park situation diversity

is accommodated by allowing park managers to make a

generally applicable regulatory decision (not on a case by

case basis) pag is priorly posted or noticed in some way to

the public, e.g. posted traffic control signs or area

deciemalicaan or simply as standing rules in the Florida

Administrative Code (A. 20-27).

The DEP has presented no competent substantial

evidence as to why it must adopt a completely different

regulatory approach to speech conduct as opposed to non-

Petition: Page 18 of 30

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speech conduct.

DEP defenses before the lower state courts of the

necessity of unbridled discretionary power have nothing to

do with regulating speech itself. Each issue could be (and

often is already) addressed by generally applicable standing,

rules. All of the DEP examples argue to the opposite of the

DEP’s rationale for the Rule.

E.g., the carrying capacity of a dock (post a standing

limit on the number of persons), full parks (close the ‘in’

gate, regardless of visitor purpose), blocking access of

emergency vehicles (general traffic issue), trampling of

vegetation or injury to animals (limit public access and/or

educate), severe weather or tides (general safety for all,

regardless of activity), traffic hazards (regulate traffic again,

no connection to speech), loud music (regulate decibels for

all as per appropriate park location), baptism with the

alligators (entering the water in an area not designated),

handing out flyers in the street (general conduct traffic issue

again, flyers or no flyers). Even the proffered examples of

user conflict (weddings, rallies, nature walks) present issues

for which user purpose is irrelevant, and which can and

should be addressed via first come, first serve or a

reservation system.

In contrast to the lower state court, this Court has

rejected government reliance on speech restrictions as a

convenient means of regulating wider general conduct.

Thompson v. Western States Medical Center, 122 S.Ct. 1497,

153 L.Ed.2d 563, 2002.SCT.0000071, P. 47 (U.S. 2002)

(Versuslaw)("If the First Amendment means anything, it

means that regulating speech must be a last -- not first --

resort. Yet here it seems to have been the first strategy the

Government thought to try.”)

Even where speech may be regulated under

intermediate scrutiny this Court has “never accepted mere

conjecture as adequate to carry a First Amendment burden”,

Watchtower v. Village of Stratton, No. 00-1737,

2002.SCT.0000117, P. 64 (U.S. 2002)(Versuslaw). Harms must

be demonstrably real, not conjectural, and any regulation

“must alleviate the harms in a direct and material way.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994).

Petition: Page 19 of 30

Any justification proffered by the Government to regulate

speech must not merely be plausible speculation, but must

be established by proven and presented fact. United States v.

Treasury Employees, 513 U.S. --, 115 S.Ct. --, 130 L.Ed.2d 964,

985 (1995).

Also in contrast to the lower state court, the federal

appellate courts have held that the government bears the

burden of showing that its time, place and manner

regulations are valid. Bay Area Peace Navy v. U.S. 914 F.2d

1224 (9th Cir. 1994)(“The government bears the burden of

proving that the ‘narrowly tailored’ and ‘alternative

communication’ prongs are satisfied.”) Phillips v. Borough

of Keyport, 107 F.3d 164, 173 (3rd Cir. 1997)(“[The

government] must come forward with ‘evidence of

incidental adverse social effect that provides the important

governmental interest justifying reasonable tim, place and

manner restrictions on speech or expressive conduct. ... It is

the Borough that carries the burdens of production and

persuasion here, not the plaintiffs.”) Ass'n of Community

Organizations for Reform Now v. Golden, Colorado, 744

F.2d 739, 746 (10th Cir. 1984) (“when a law infringes on the

exercise of First Amendment rights, its proponent bears the

burden of establishing its constitutionality.”) U.S. v. Doe,

968 F.2d 86, 90 (D.C. Cir. 1992)(“In a First Amendment

challenge, the government bears the burden of showing that

its restriction of speech is justified under the traditional

‘narrowly tailored’ test.”) Edwards v. City of Coeur

D’ Alene, No. 00-35537, 2001.C09.0000580, P. 42 (9th Cir.

2001)(Versuslaw)(“the First Amendment demands that

municipalities provide ‘tangible evidence’ that speech-

restrictive regulations are ‘necessary’ to advance the

proffered interest in public safety.”)

This Court has invalidated regulations like the Rule

which shift the burden of proving the necessity of a

restriction from the government to the speaker. Speiser v.

Randall, 357 U.S. 513, 524 (1958)(“In civil cases too this Court

has struck down state statutes unfairly shifting the burden of

proof.”)

Petition: Page 20 of 3U

Tae Ce ae ae, ee ee ee eae

If this Court has any doubt as to the facts, it should

conduct an independent appellate review of the court record.

Bose Corp. v. Consumers Union of U.S, Inc., 466 U.S. 485,

500, fn. 16, 17 (1984). Hurley v. Irish-American Gay Group,

132 L.Ed.2d 487, 499 (1995).

IV. THE RULE IS UNCONSTITUTIONAL UNDER

THE FIRST AMENDMENT BECAUSE THE

LACK OF ASCERTAINABLE STANDARDS

ALLOWS COVERT CONTENT

DISCRIMINATION.

The first prong of the time, place and manner test is

that time, place and manner restrictions on speech must be

content neutral.

Ini contrast to the lower state court, this Court and the

federal circuit courts of appeal have held that analysis of

content neutrality does not end with purported facial

neutrality. If the law allows unbridled discretion by officials

then the danger of discriminatory enforcement makes the

restriction unconstitutional.

Forsyth Cy. v. Nationalist Movement, 505 U.S. --. 112

S.Ct. --, 120 L.Ed.2d 101, 111 (1992)(“A government

regulation that allows arbitrary application is ‘inherently

inconsistent with a valid time, place and manner regulation

because such discretion has the potential for becoming a

means of suppressing a particular point of view.’ ”)

Lakewood v. Plain Dealer, 486 U.S. 750, 758

(1988)(Without express standards post loc rationalizations

and the use of shifting criteria are far too easy, making it

difficult for any reviewing court to determine if an official is

discriminating for illicit reasons.)

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051

(1991)(“The prohibition against vague regulations of speech

is based in part on the need to eliminate the impermissible

risk of discriminatory enforcement.”)

Cox v. Louisiana, 379 U.S. 536, 557 (1965)(Broad

discretion “sanctions a device for the suppression of the

Petition: Page 21 of 30

communication of ideas and permits the official to act as a

censor.” )

Crowder v. Housing Authority of City of Atlanta, 990

F.2d 586, 591 (11th Cir. 1993)(“A restriction which vests

unlimited discretion in a government actor, however, opens

the way to arbitrary suppression of particular points of view.

Such arbitrariness is inherently inconsistent with a valid

time, place and manner pe eee ")

Summum v. Ci zden, No. 01-4022,

2002.C10.0000800, P. 63, rs (10th Cir. 2002) (Versuslaw)(Post

hoc rationalizations may obscure viewpoint discrimination.

Without criteria to circumscribe official discretion, the

potential for unconstitutional conduct, namely favoring one

viewpoint over another, cannot be tolerated. This is true even

where the government offers reasonable grounds for limiting

access, and even in a nonpublic forum.)

Whether or not an an agency or official has actually

abused a discretionary power over speech is constitutionally

irrelevant. The mere existence of the power makes the law

facially unconstitutional. NAACP v. Button, 371 U.S. 415,

438 (1963)(“Precision of regulation must be the touchstone in

an area so closely touching our most precious freedoms.”)

Id. at 433. (“The objectionable quality of vagueness and

overbreadth does not depend upon absence of fair notice to a

criminally accused or upon unchanneled delegation of

legislative powers, but upon the danger of tolerating, in the

area of First Amendment Freedoms, the existence of a penal

statute susceptible of sweeping and improper application ...

These freedoms are delicate and vulnerable, as well as

supremely precious in our society. The threat of sanctions may

deter their exercise almost as potently as the actual application of

sanctions.” (emphasis added). For Your Eyes Alone, Inc. v.

City of Columbus, Georgia, No. 01-13317, 2002.C11.0000045,

P. 48 (11th Cir. 2002)(Versuslaw)(Uncertainty as to the

conduct of state agents implementing a statute can in itself

chill future speech.)

In contrast to the lower state court ruling a federal

circuit court has specifically held that park officials cannot be

allowed to exercise discretionary power over speech in the

name of park values and purposes. Women Strike for Peace

Petition: Page 22 of 30

v. Morton, 472 F.2d 1273, 1291 (D.C. Cir. 1972)(“those

officials assure us that the discretion is exercised with an eye

to the public interest and basic park values. But the Supreme

Court has repeatedly held that such standards, even with

official assurances of good faith, offer insufficient protection

to First Amendment freedoms.”) U.S. v. Doe, 968 F.2d 86, 90

(D.C. Cir. 1992)(“Where constitutionally protected activity is

implicated, we cannot simply defer to the Park Service's

unexplained judgment.”)

This Rule should be held facially unconstitutional

because the lack of ascertainable standards and employment

of subjective, ad /ioc judgment in every case makes every

application of the Rule invalid. United States v. Salerno, 481

U.S. 739, 745 (1987); City of Chicago v. Morales, 527 U.S. 41,

55 (1999)(A vague criminal law which contains no mens rea

requirement and infringes on constitutionally protected

rights is subject to facial attack.) Id. at 71. (“if every

application of the ordinance represents an exercise of

unlimited discretion, then the ordinance is invalid in all its

applications.” (Justice Breyer, concurring).

V. THE RULE IS UNCONSTITUTIONAL UNDER

THE FIFTH AND FOURTEENTH

AMENDMENTS BECAUSE LACK OF

ASCERTAINABLE STANDARDS AND

UNBRIDLED DISCRETION VIOLATES DUE

PROCESS AND IMPROPER DELEGATION

GUARANTEES

In multiple holdings this Court has been adamant

that even outside of First Amendment jurisprudence the

Rule’s strategy of applying unascertainable standards on a

case by case, ad loc basis is facially unconstitutional.

Grayned vy. City of Rockford, 4:08 U.S. 104, 109

(1972)(“A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an

ad hoc and subjective basis, with the attendant dangers of

arbitrary and discriminatory application.” )

Petition: Page 23 of 30

Smit v. Goguen, 415 U.S. 566, 575 (1974)(“Statutory

language of such a standardless sweep allows policemen,

prosecutors, and juries to pursue their predilections.

Legislature may not so abdicate their responsibilities for

setting the standards of criminal law.”) Id. at 575.

(Lawmaking cannot be entrusted ‘to the moment-to-moment

judgment of the policeman on his beat.’) Id. at 576. (“Where

inherently vague statutory language permits such selective

law enforcement, there is a denial of due process.”) Id. at

578. (“This absence of any ascertainable standard for

inclusion and exclusion is precisely what offends the Due

Process Clause. The deficiency is particularly objectionable

in view of the unfettered latitude thereby accorded

enforcement officials and triers of fact.”)

Houston v. Hill, 482 U.S. 451, 466 (1987)(An

ordinance is facially unconstitutional which “confers on

police a virtually unrestrained power to arrest and charge

persons with a violation.”)

Kolender v. Lawson, 461 US. 352, 361 (1983)(holding

a law “unconstitutionally vague on its face because it

encourages arbitrary enforcement by failing to describe with

sufficient particularity what a suspect must do in order to

satisfy the statute.”) Id. at

Recently in City of Chicago v. Morales, 527 U.S. 41

(1999) this Court held that a statutory strategy of ad hoc, case

by case application of unascertainable standards and

subjective judgment as to what constitutes a violation of the

law is facially unconstitutional. Id. at 55. (“When vagueness

permeates the text of such a law, it is subject to facial

attack.”) Id. at 56. (Facial unconstitutionality exists when a

law “may fail to provide the kind of notice that will enable

ordinary people to understand what conduct it prohibits;

second, it may authorize and even encourage arbitrary and

discriminatory enforcement.”) Id. at 58-59. *(“If the police are

able to decide arbitrarily which members of the public they

will order to disperse, then the Chicago ordinance becomes

indistinguishable from the iaw we held invalid in

, Shuttlesworth v. Birmingham”) Id. at 60. (A law like the

Rule is facially unconstitutional in setting a large net which

Petition: Page 24 of 30

the courts are expected to sort out, because effectively “no

standard of conduct is specified at all.”) Id. at 62. (Rejecting

inherent subjectivity where application depends on officer at

the scene.)

In City of Chicago this Court specifically rejected the

Rule’s strategy that an officer issuing an order to citizens

constitutes proper notice of violation to citizens. Id. at 58-59.

(Rejecting the doctrine that persons receiving notice via a

police order constitutes fair notice.) Id. at 62. (Allowing

arrest only after an order has been disobeyed “does not

provide any guidance to tl e officer deciding whether such

an order should issue.”)

This Court has also held that the Rule’s strategy of

delegating policy making to officials who are expected to

exercise their power on an ad hoc and subjective basis is an

improper delegation of power to these officials, and thus

facially unconstitutional. Grayned v. City of Rockford, 408

U.S. 104, 109 (1972)(“A vague law impermissibly delegates

basic policy matters to policemen, judges, and juries for

resolution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discriminatory

application.”)

VI. THE RULE IS UNCONSTITUTIONAL UNDER

THE FIRST, FIFTH AND FOURTEENTH

AMENDMENTS BECAUSE THE RULE IS NOT

SPECIFIC

Within a First Amendment context this Court has

been emphatic that laws regulating speech must be narrowly

specific. Keyishian v. Board of Regents of New York, 385

U.S. 589, 604 (1967)(“Because First Amendment freedoms

need breathing space to survive, government may regulate in

the area only with narrow specificity.”) NAACP v. Button,

371 U.S. 415, 438 (1963)(“Precision of regulation must be the

touchstone in an area so closely touching our most precious

freedoms.” )

This Court has recently reemphasized the need for

narrow specificity even outside of First Amendment

Petition: Page 25 of 30

contexts. City of Chicago v. Morales, 527 U.S. 41, 72 (1999),

quoting Coates v. Cincinnati, 402 U.S. 611, 614 (1971) made it

clear that even for non-speech conduct the DEP must address

legitimate government goals with narrow specificity: “The

city is free to prevent people from blocking sidewalks,

obstructing traffic, littering streets, committing assaults, or

engaging in countless other forms of antisocial conduct. It

can do so through the enactment and enforcement of

ordinances directed with reasonable specificity toward the

conduct to be prohibited. ... It cannot constitutionally do so

through the enactment and enforcement of an ordinance

whose violation may entirely depend upon whether or not a

policeman is annoyed.”

Given the need for specificity under the Fifth and

Fourteenth Amendments, a law which regulates speech as

such must be even more strictly held to the requirement of

specificity.

The Rule fails to meet the specificity requirement in

all of its applications. The Rule is therefore invalid on its face.

Vil. THE RULE IS UNCONSTITUTIONAL

BECAUSE PRIOR RESTRAINTS ARE ISSUED

UNDER COLOR OF THE RULE

This Court has held that a danger of an

unconstitutionally vague and discretionary law regulating

speech is that prior restraints may be issued under color of

the law. Broadrick v. Oklahoma, 413 U.S. 601, 612-613

(1973)(Holding a law unconstitutional because it “delegated

standardless discretionary power to local functionaries,

resulting in virtually unreviewable prior restraints on First

Amendment rights.”)

Prior restraints are the worst infringement on First

Amendment rights. Nebraska Press Ass’n v. Stuart, 427 U.S.

539 559 (1975)(“prior restraints on speech ... are the most

serious and least tolerable infringement on First Amendment

rights.”)

Prior restraints are presumed to be facially

unconstitutional. Carroll v. Commissioners of Princess

Petition: Page 26 of 30

Anne, 393 U.S. 175, 181 (1968). Even where the presumption

of unconstitutionality is overcome, procedural safeguards

must be in place to obviate the dangers of a censorship

system. Id. at 181.

According to the DEP the Rule gives its officials

power to limit a free speech activity to a time duration of a

minute or less, or to a frequency of once a year or every 10

years. The situation “facts” supporting such an edict depend

on DEP’s subjective assessment of ‘suitability’ according to

anything and everything going on in the park, or on

subjective assessment of whether some person's ‘enjoyment’

might be adversely impacted to some trivial degree.

Such power to suppress speech is indistinguishable

from prior restraint because it allows the DEP to effectively

ban speech completely.

If a speaker accepts the Rule’s invitation to contact

the park manager in advance of the communication, the

effective ban can be instituted in advance of the

communication - thus putting the ‘prior’ in ‘prior restraint.’

The record in this case unequivocally shows that the

DEP issued a prior restraint under color of the Rule in the

form of a discretionary ban on all sound amplification.

The record further shows this prior restraint was

issued in advance of the communication, not as an on the

spot in response to some abuse or harm that was actually

occurring.

This Court has held that a ban on sound amplification

which is levied or lifted at the discretion of an official is

legally a prior restraint. Saia v. New York, 334 U.S. 558, 560-

561 (1948)(“The right to be heard is placed in the

uncontrolled discretion of the Chief of Police. He stands

athwart the channels of communication as an obstruction

which can be removed only after criminal trial and lengthy

appeal. A more effective previous restraint is difficult to

image.” See also Cannabis Action Network, Inc. v. City of

Gainesville, 231 F.3d 761, 771 (11th Cir. 2000)(same).

Nowhere does the Rule provide any procedural

safeguard to “obviate the dangers of censorship” when DEP

employees issue a prior restraint to a speaker. For example,

Petition: Page 27 of 30

the Rule does not provide any time limit within which a park

manager must respond to a request for applicable restrictions

on speech. As the court record shows, the DEP may take

days, weeks or months to reply. (If a speaker asks the DEP to

lift a 10-year ban on a speech activity, when can the speaker

know? And how is this power any different from a prior

restraint permit scheme?)

Vill. THE RULE’S DEFICIENCIES SHOULD BE

CURED BY FACIAL INVALIDATION RATHER

THAN CASE BY CASE ADJUDICATION

As discussed above the Rule abundantly meets the

criteria for facial invalidation.

This Court has often held that vague rules which

provide unbridled discretion to restrict speech should not be

subject to a series of adjudications but should be invalidated

in entirety. Board of Airport Commissioners v. Jews for

lesus, 482 U.S. 569, 576 (1987)(“A series of adjudications

limiting the application of the ordinance would be

unacceptable because it would result in a chilling effect on

protected speech during the pendency of judicial

proceedings delineating the contours of the ordinance.” )

Baggett v. Bullitt, 377 U.S. 360, 373 (1964)(“a vague law is not

rendered more precise by virtue of a court having passed

upon its application to particular facts. Rather, sucha

process merely shifts the exercise of impermissibly broad

discretion from executive officials to judges, a shift that has

no significance in First Amendment jurisprudence.”)

This Court should be aware that the peculiarities of

Florida state administrative courts and administrative law

make any piecemeal as-applied adjudication in Florida state

courts virtually impossible. Effectively no right of

adjudication exists.

Because Frandsen’s administrative rule challenge

failed, the Rule has been pronounced as valid and legitimate

under the Florida administrative law. Under this

circumstance the only state court challenge possible is to file

an “as-applied” challenge to the state agency action under

Petition: Page 28 of 30

§120.569 and §120.57, Florida Statues (A. 41, 58-59).

Florida law forbids an administrative court from

performing an independent fact finding role if the “fact”

includes state agency discretion. Therefore in Florida state

courts any review of DEP subjective assessments of “fact”

when applying the rule will be unreviewable.

When a litigant appeals the administrative court

decision then as per § 120.68(7)(b) and (e), Florida Statutes

(A. 18), s/he will find that contrary to this Court's direction

all “facts” which are DEP discretionary judgments will be

automatically found in the favor of the state agency and will

be unreviewable on appeal.

Cortes v. State Board of Regents, 655 So.2d 132, 1995.FL.954,

P. 58 (Fla. lst DCA 1995)(Versuslaw)(“Because a reviewing

‘court shall not substitute its judgment for that of the agency

on an issue of discretion,’ ... an agency rule that confers

standardless discretion insulates agency action from judicial

-scrutiny.”).

IX. PETITIONER HAS STANDING TO RAISE

FACIAL CHALLENGES TO THE RULE

The DEP stipulated to Frandsen’s standing to conduct

a rule challenge (A. 34). Under § 120.56(3), Florida Statutes

(A. 1) only ‘substantially affected’ persons may challenge an

agency rule. Therefore the DEP has already stipulated to the

fact that Frandsen is substantially affected by the Rule.

As per the facts above, Frandsen was threatened with

arrest in writing should he break any park rule, published or

unpublished, including orders issued by the DEP under color

of the Rule. Threat of self-censorship because of fear of DEP

use and abuse of discretionary authority granted under color

of the Rule is liberally attested in the record by Frandsen and

other speaker witnesses as per the facts above.

Frandsen is not required to submit to arrest or direct

personal threat in order to have standing to raise either facial

or as-applied constitutional challenges. Babbitt v. Farm

Workers, 422 U.S. 289, 298 (1979)(“When contesting the

constitutionality of a criminal statute, ‘it is not necessary that

Petition: Page 29 of 30

[the plaintiff] first expose himself to actual arrest or

prosecution to be entitled to challenge [the] statute that he

claims deters the exercise of his constitutional rights.”)

ACLU v. The Florida Bar, 999 F.2d 1486, 1492 (11th Cir.

1992)(The alleged danger of this statute is, in large measure

one of self-censorship; a harm that can be realized without an

actual prosecution.”) See also Harris v. McRae, 448 U.S. 297,

299 (1980); Hardwick v. Bowers, 760 F.2d 1202, 1204 (11th

Cir. 1985), rev’d on other grounds, 478 U.S. 186 (1986). (“In

some cases, the authentic interest of a plaintiff in engaging in

the prohibited conduct can establish standing even though

the only threat of enforcement by the State comes from the

very existence of the statute.”)

X. CONCLUSION

This case concerns very fundamental questions about

the extent of government ad loc discretionary power to

regulate speech under the ‘time, place and manner’ label in

designated or traditional public fora.

Government officials should not have the power to

intimidate and control speakers on the spot by summary

creation of ‘law’ according to their subjective interpretations

of imponderable criteria and moods. Hostile members of the

public should not be able to likewise summarily by pretext

veto speech.

The lower state court’s ruling directly and openly

conflicts with numerous rulings of this Court and the federal

circuit courts of appeal.

WHEREFORE, Frandsen prays this Honorable Court

will grant this Petition, find the Rule facially unconstitutional

under the United States Constitution, and issue a Writ of

Certiorari to the lower state court.

Dr. Marvin Frandsen, Petitioner, pro se

Petition: Page 30 of 30

No.

In The

Supreme Court Of The United States

October Term, 2003

Dr. Marvin Frandsen, Petitioner

Vv.

Department of Environmental Protection,

State of Florida, Respondent

On Petition for Writ of Certiorari

To the First District Court of Appeal

for the State of Florida

APPENDIX OF

PETITION FOR WRIT OF CERTIORARI

Dr. Marvin Frandsen, pro se

4467 Country Rd.

Melbourne, FL 32934

ph: W 321.494.0543 / H 321.259.2297

fax: 321.259.2297

e-mail: marv-frandsen@cfl.rr.com

APPENDIX

TABLE OF CONTENTS

Item Appendix Page

§ 120.56¢3), Ficshan SO no eee 1

§ 120.509, Firitin SR. 5s nh een ce oe ees ty x 1

§ 120.57, Flowbee SOME oc iwc cce ee an eae eee ete 6

& 120.66, Piowicia SQM ons ce Soe ee eee 15

Florida Administrative Code 62D-2.014 ............... 19

Letter from LEE’ tp PO: ou no's ooo oc ie Cuewcas es 27

Final Order, Division of Administrative Hearings ....... 30

Excepts from Frandsen brief

to Florida First District Court of Appeal ......... 61

Excerpt from DEP Answer Brief

to Florida First District Court of Appeal ......... 75

Final Order, Florida First District Court of Appeal....... 76

Order Denying Frandsen Motion

for Rehearing and Rehearing En Banc,

Florida First District Court of Appeal .......... 82

Order Denying Frandsen Petition for Reviesy,

Florida Supe GANS ons ge we pe ene eek cdscass 83

§ 120.56(3), Florida Statutes

(3) CHALLENGING EXISTING RULES; SPECIAL

PROVISIONS.--

(a) A substantially affected person may seek an

administrative determination of the invalidity of an existing

rule at any time during the existence of the rule.

(b) The administrative law judge may declare all or part of a

rule invalid. The rule or part thereof declared invalid shall |

become void when the time for filing an appeal expires. The

agency whose rule has been declared invalid in whole or part

shall give notice of the decision in the Florida Administrative

Weekly in the first available issue after the rule has become

void.

§ 120.569, Florida Statutes

120.569 Decisions which affect substantial interests.--

(1) The provisions of this section apply in all proceedings in

which the substantial interests of a party are determined by

an agency, unless the parties are proceeding under s. 120.573

or s. 120.574. Unless waived by all parties, s. 120.57(1) applies

whenever the proceeding involves a disputed issue of

material fact. Unless otherwise agreed, s. 120.57(2) applies in

all other cases. Parties shall be notified of any order,

including a final order. Unless waived, a copy of the order

shall be delivered or mailed to each party or the party's

attorney of record at the address of record. Each notice shall

inform the recipient of any administrative hearing or judicial

review that is available under this section, s. 120.57, or s.

120.68; shall indicate the procedure which must be followed

to obtain the hearing or judicial review; and shall state the

time limits which apply.

Appendix: Page | of 83

(2)(a) Except for any proceeding conducted as prescribed in

s. 120.56, a petition or request for a hearing under this section

shall be filed with the agency. If the agency requests an

administrative law judge from the division, it shall so notify

the division within 15 days after receipt of the petition or

request. A request for a hearing shall be granted or denied

within 15 days after receipt. On the request of any agency,

the division shall assign an administrative law judge with

due regard to the expertise required for the particular matter.

The referring agency shall take no further action with respect

to a proceeding under s. 120.57(1), except as a party litigant,

as long as the division has jurisdiction over the proceeding

under s. 120.57(1). Any party may request the

disqualification of the administrative law judge by filing an

affidavit with the division prior to the taking of evidence at a

hearing, stating the grounds with particularity.

(b) All parties shall be afforded an opportunity for a hearing

after reasonable notice of not less than 14 days; however, the

14-day notice requirement may be waived with the consent

of all parties. The notice shall include:

1. A statement of the time, place, and nature of the hearing.

2. A statement of the legal authority and jurisdiction under

which the hearing is to be held.

(c) Unless otherwise provided by law, a petition or request

for hearing shall include those items required by the uniform

rules adopted pursuant to s. 120.54(5)(b)4. Upon the receipt

of a petition or request for hearing, the agency shall carefully

review the petition to determine if it contains all of the

required information. A petition shall be dismissed if it is not

in substantial compliance with these requirements or it has

been untimely filed. Dismissal of a petition shall, at least

once, be without prejudice to petitioner's filing a timely

amended petition curing the defect, unless it conclusively

appears from the face of the petition that the defect cannot be

cured. The agency shall promptly give written notice to all

Appendix: Page 2 of 83

parties of the action taken on the petition, shall state with

particularity its reasons if the petition is not granted, and

shall state the deadline for filing an amended petition if

applicable.

(d) The agency may refer a petition to the division for the

assignment of an administrative law judge only if the

petition is in substantial compliance with the requirements of

paragraph (c).

(e) All pleadings, motions, or other papers filed in the

proceeding must be signed by the party, the paity's attorney,

or the party's qualified representative. The signature

constitutes a certificate that the person has read the pleading,

motion, or other paper and that, based upon reasonable

inquiry, it is not interposed for any improper purposes, such

as to harass or to cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of litigation. If a

pleading, motion, or other paper is signed in violation of

these requirements, the presiding officer shall impose upon

the person who signed it, the represented party, or both, an

appropriate sanction, which may include an order to pay the

other party or parties the amount of reasonable expenses

incurred because of the filing of the pleading, motion, or

other paper, including a reasonable attorney's fee.

(f) The presiding officer has the power to swear witnesses

and take their testimony under oath, to issue subpoenas, and

to effect discovery on the written request of any party by any

means available to the courts and in the manner provided in

the Florida Rules of Civil Procedure, including the

imposition of sanctions, except contempt. However, no

presiding officer has the authority to issue any subpoena or

order directing discovery to any member or employee of the

Legislature when the subpoena or order commands the

production of documents or materials or compels testimony

relating to the legislative duties of the member or employee.

Any subpoena or order directing discovery directed to a

member or an employee of the Legislature shall show on its

face that the testimony sought does not relate to legislative

Appendix: Page 3 of 83

duties.

(zg) Irrelevant, immaterial, or unduly repetitious evidence

shall be excluded, but all other evidence of a type commonly

relied upon by reasonably prudent persons in the conduct of

their affairs shall be admissible, whether or not such

evidence would be admissible in a trial in the courts of

Florida. Any part of the evidence may be received in written

form, and all testimony of parties and witnesses shall be

made under oath.

(h) Documentary evidence may be received in the form of a

copy or excerpt. Upon request, parties shall be given an

opportunity to compare the copy with the original, if

available.

(i) When official recognition is requested, the parties shall be

notified and given an opportunity to examine and contest the

material.

(j) A party shall be permitted to conduct cross-examination

when testimony is taken or documents are made a part of the

record.

(k)1. Any person subject to a subpoena may, before

compliance and on timely petition, request the presiding

officer having jurisdiction of the dispute to invalidate the

subpoena on the ground that it was not lawfully issued, is

unreasonably broad in scope, or requires the production of

irrelevant material.

2. A party may seek enforcement of a subpoena, order

directing discovery, or order imposing sanctions issued

under the authority of this chapter by filing a petition for

enforcement in the circuit court of the judicial circuit in

which the person failing to comply with the subpoena or

order resides. A failure to comply with an order of the court

shall result in a finding of contempt of court. However, no

person shall be in contempt while a subpoena is being

Appendix: Page 4 of 83

challenged under subparagraph 1. The court may award to

the prevailing party all or part of the costs and attorney's fees

incurred in obtaining the court order whenever the court

determines that such an award should be granted under the

Florida Rules of Civil Procedure.

3. Any public employee subpoenaed to appear at an agency

proceeding shall be entitled to per diem and travel expenses

at the same rate as that provided for state employees under s.

112.061 if travel away from such public employee's

headquarters is required. All other witnesses appearing

pursuant to a subpoena shall be paid such fees and mileage

for their attendance as is provided in civil actions in circuit

courts of this state. In the case of a public employee, such

expenses shall be processed and paid in the manner

provided for agency employee travel expense

reimbursement, and in the case of a witness who is not a

public employee, payment of such fees and expenses shall

accompany the subpoena.

(1) Unless the time period is waived or extended with the

consent of all parties, the final order in a proceeding which

affects substantial interests must be in writing and include

findings of fact, if any, and conclusions of law separately

stated, and it must be rendered within 90 days:

l. After the hearing is concluded, if conducted by the

agency;

2. After a recommended order is submitted to the agency

and mailed to all parties, if the hearing is conducted by an

administrative law judge; or

3. After the agency has received the written and ora!

material it has authorized to be submitted, if there has been

no hearing.

(m) Findings of fact, if set forth in a manner which is no

more than mere tracking of the statutory language, must be

Appendix: Page 5 of 83

accompanied by a concise and explicit statement of the

underlying facts of record which support the findings.

(n) If an agency head finds that an immediate danger to the

public health, safety, or welfare requires an immediate tinal

order, it shall recite with particularity the facts underlying

such finding in the final order, which shall be appealable or

enjoinable from the date rendered.

§ 120.57, Florida Statutes

120.57 Additional procedures for particular cases.--

(1) ADDITIONAL PROCEDURES APPLICABLE TO

HEARINGS INVOLVING DISPUTED ISSUES OF

MATERIAL FACT.--

(a) Except as provided in ss. 120.80 and 120.81, an

administrative law judge assigned by the division shall

conduct all hearings under this subsection, except for

hearings before agency heads or a member thereof. If the

administrative law judge assigned to a hearing becomes

unavailable, the division shall assign another administrative

law judge who shall use any existing record and receive any

additional evidence or argument, if any, which the new

administrative law judge finds necessary.

(b) All parties shall have an opportunity to respond, to

present evidence and argument on all issues involved, to

conduct cross-examination and submit rebuttal evidence, to

submit proposed findings of facts and orders, to file

exceptions to the presiding officer's recommended order, and

to be represented by counsel or other qualified

representative. When appropriate, the general public may be

given an opportunity to present oral or written

communications. If the agency proposes to consider such

material, then all parties shall be given an opportunity to

cross-examine or challenge or rebut the material.

Appendix: Page 6 of 83

(c) Hearsay evidence may be used for the purpose of

supplementing or explaining other evidence, but it shall not

be sufficient in itself to support a finding unless it would be

admissible over objection in civil actions.

(d) Notwithstanding s. 120.569(2)(g), similar fact evidence of

other violations, wrongs, or acts is admissible when relevant

to prove a material fact in issue, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident, but it is inadmissible when

the evidence is relevant solely to prove bad character or

propensity. When the state in an administrative proceeding

intends to offer evidence of other acts or offenses under this

paragraph, the state shall furnish to the party whose

substantial interests are being determined and whose other

acts or offenses will be the subject of such evidence, no fewer

than 10 days before commencement of the proceeding, a

written statement of the acts or offenses it intends to offer,

describing them and the evidence the state intends to offer

with particularity. Notice is not required for evidence of acts

or offenses which is used for impeachment or on rebuttal.

(e)1. Any agency action that determines the substantial

interests of a party and that is based on an unadopted rule is

subject to de novo review by an administrative law judge.

2. The agency action shall not be presumed valid or invalid.

The agency must demonstrate that the unadopted rule:

a. Is within the powers, functions, and duties delegated by

the Legislature or, if the agency is operating pursuant to

authority derived from the State Constitution, is within that

authority;

b. Does not enlarge, modify, or contravene the specific

provisions of law implemented;

c. Is not vague, establishes adequate standards for agency

Appendix: Page 7 of 83

decisions, or does not vest unbridled discretion in the

agency;

d. Is not arbitrary or capricious;

e. Is not being applied to the substantially affected party

without due notice;

f. Is supported by competent and substantial evidence; and

g. Does not impose excessive regulatory costs on the

regulated person, county, or city.

3. The recommended and final orders in any proceeding

shall be governed by the provisions of paragraphs (k) and (1),

except that the administrative law judge's determination

regarding the unadopted rule shall not be rejected by the

agency unless the agency first determines from a review of

the complete record, and states with particularity in the

order, that such determination is clearly erroneous or does

not comply with essential requirements of law. In any

proceeding for review under s. 120.68, if the court finds that

the agency's rejection of the determination regarding the

unadopted rule does not comport with the provisions of this

subparagraph, the agency action shall be set aside and the

court shall award to the prevailing party the reasonable costs

and a reasonable attorney's fee for the initial proceeding and

the proceeding for review.

(f) The record in a case governed by this subsection shall

consist only of:

1. All notices, pleadings, motions, and intermediate rulings.

2. Evidence admitted.

3. Those matters officially recognized.

4. Profters of proof and objections and rulings thereon.

Appendix: Page & of 83

5. Proposed findings and exceptions.

6. Any decision, opinion, order, or report by the presiding

officer.

7. All staff memoranda or data submitted to the presiding

officer during the hearing or prior to its disposition, after

notice of the submission to all parties, except

communications by advisory staff as permitted under s.

120.66(1), if such communications are public records.

8. All matters placed on the record after an ex parte

communication.

9. The official transcript.

(g) The agency shall accurately and completely preserve all

testimony in the proceeding, and, on the request of any

party, it shall make a full or partial transcript available at no

more than actual! cost.

(h) Any party to a proceeding in which an administrative

law judge of the Division of Administrative Hearings has

final order authority may move for a summary final order

when there is no genuine issue as to any material fact. A

summary final order shall be rendered if the administrative

law judge determines from the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with affidavits, if any, that no genuine issue as to any

material fact exists and that the moving party is entitled as a

matter of law to the entry of a final order. A summary final

order shall consist of findings of fact, if any, conclusions of

law, a disposition or penalty, if applicable, and any other

information required by law to be contained in the final

order.

(i) When, in any proceeding conducted pursuant to this

Appendix: Page 9 of 83

subsection, a dispute of material fact no longer exists, any

party may move the administrative law judge to relinquish

jurisdiction to the agency. In ruling on such a motion, the

administrative law judge may consider the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with supporting and opposing affidavits, if any.

If the administrative law judge enters an order relinquishing

jurisdiction, the agency may promptly conduct a proceeding

pursuant to subsection (2), if appropriate, but the parties may

not raise any issues of disputed fact that could have been

raised before the administrative law judge. An order entered

by an administrative law judge relinquishing jurisdiction to

the agency based upon a determination that no genuine

dispute of material fact exists, need not contain findings of

fact, conclusions of law, or a recommended disposition or.

penalty.

(j) Findings of fact shall be based upon a preponderance of

the evidence, except in penal or licensure disciplinary

proceedings or except as otherwise provided by statute, and

shall be based exclusively on the evidence of record and on

matters officially recognized.

(k) The presiding officer shall complete and submit to the

agency and all parties a recommended order consisting of

findings of fact, conclusions of law, and recommended

disposition or penalty, if applicable, and any other

information required by law to be contained in the final

order. All proceedings conducted pursuant to this subsection

shall be de novo. The agency shall allow each party 15 days

in which to submit written exceptions to the recommended

order. |

(1) The agency may adopt the recommended order as the

final order of the agency. The agency in its final order may

reject or modify the conclusions of law over which it has

substantive jurisdiction and interpretation of administrative

rules over which it has substantive jurisdiction. When

rejecting or modifying such conclusion of law or

interpretation of administrative rule, the agency must state

Appendix: Page 10 of 83

with particularity its reasons for rejecting or modifying such

conclusion of law or interpretation of administrative rule and

must make a finding that its substituted conclusion of law or

interpretation of administrative rule is as or more reasonable

than that which was rejected or modified. Rejection or

modification of conclusions of law may not form the basis for

rejection or modification of findings of fact. The agency may

not reject or modify the findings of fact unless the agency

first determines from a review of the entire record, and states

with particularity in the order, that the findings of fact were

not based upon competent substantial evidence or that the

proceedings on which the findings were based did not

comply with essential requirements of law. The agency may

accept the recommended penalty in a recommended order,

but may not reduce or increase it without a review of the

complete record and without stating with particularity its

reasons therefor in the order, by citing to the record in

justifying the action.

(m) If a recommended order is submitted to an agency, the

agency shall provide a copy of its final order to the division

within 15 days after the order is filed with the agency clerk.

(n) Notwithstanding any law to the contrary, when statutes

or rules impose conflicting time requirements for the

scheduling of expedited hearings or issuance of

recommended or final orders, the director of the division

shall have the authority to set the proceedings for the orderly

operation of this chapter.

(2) ADDITIONAL PROCEDURES APPLICABLE TO

HEARINGS NOT INVOLVING DISPUTED ISSUES OF

MATERIAL FACT.--In any case to which subsection (1) does

not apply:

(a) The agency shall:

1. Give reasonable notice to affected persons of the action of

the agency, whether proposed or already taken, or of its

Appendix: Page 11 of 83

decision to refuse action, together with a summary of the

factual, legal, and policy grounds therefor.

2. Give parties or their counsel the option, at a convenient

time and place, to present to the agency or hearing officer

written or oral evidence in opposition to the action of the

agency or to its refusal to act, or a written statement

challenging the grounds upon which the agency has chosen

to justify its action or inaction. .

3. If the objections of the parties are overruled, provide a

written explanation within 7 days.

(b) The record shall only consist of:

1. The notice and summary of grounds.

2. Evidence received.

WwW

. All written statements submitted.

+

. Any decision overruling objections.

5. All matters placed on the record after an ex parte

communication.

6. The official transcript.

7. Any decision, opinion, order, or report by the presiding

officer.

(3) ADDITIONAL PROCEDURES APPLICABLE TO

PROTESTS TO CONTRACT SOLICITATION OR AWARD.--

Agencies subject to this chapter shall use the uniform rules of

procedure, which provide procedures for the resolution of

protests arising from the contract solicitation or award

process. Such rules shall at least provide that:

Appendix: Page 12 of 83

(a) The agency shall provide notice of a decision or intended

decision concerning a solicitation, contract award, or

exceptional purchase by electronic posting. This notice shall

contain the following statement: "Failure to file a protest

within the time prescribed in section 120.57(3), Florida

Statutes, shall constitute a waiver of proceedings under

chapter 120, Florida Statutes.”

(b) Any person who is adversely affected by the agency

decision or intended decision shall file with the agency a

notice of protest in writing within 72 hours after the posting

of the notice of decision or intended decision. With respect to

a protest of the terms, conditions, and specifications

contained in a solicitation, including any provisions

governing the methods for ranking bids, proposals, or

replies, awarding contracts, reserving rights of further

negotiation, or modifying or amending any contract, the

notice of protest shall be filed in writing within 72 hours after

the posting of the solicitation. The formal written protest

shall be filed within 10 days after the date the notice of

protest is filed. Failure to file a notice of protest or failure to

file a formal written protest shall constitute a waiver of

proceedings under this chapter. The formal written protest

shall state with particularity the facts and law upon which

the protest is based. Saturdays, Sundays, and state holidays

shall be excluded in the computation of the 72-hour time

periods provided by this paragraph.

(c) Upon receipt of the formal written protest that has been

timely filed, the agency shall stop the solicitation or contract

award process until the subject of the protest is resolved by

final agency action, unless the agency head sets forth in

writing particular facts and circumstances which require the

continuance of the solicitation or contract award process

without delay in order to avoid an immediate and serious

danger to the public health, safety, or welfare.

(d)1. The agency shall provide an opportunity to resolve the

protest by mutual agreement between the parties within 7

Appendix: Page 13 of 83

days, excluding Saturdays, Sundays, and state holidays, after

receipt of a formal witten protest.

2. If the subject of a protest is not resolved by mutual

agreement within 7 days, excluding Saturdays, Sundays, and

state holidays, after receipt of the formal written protest, and

if there is no disputed issue of material fact, an informal

proceeding shall be conducted pursuant to subsection (2)

and applicable agency rules before a person whose

qualifications have been prescribed by rules of the agency.

3. If the subject of a protest is not resolved by mutual

agreement within 7 days, excluding Saturdays, Sundays, and

state holidays, after receipt of the formal written protest, and

if there is a disputed issue of material fact, the agency shall

refer the protest to the division for proceedings under

subsection (1).

(e) Upon receipt of a formal written protest referred

pursuant to this subsection, the director of the division shall

expedite the hearing and assign an administrative law judge

who shall commence a hearing within 30 days after the

receipt of the formal written protest by the division and enter

a recommended order within 30 days after the hearing or

within 30 days after receipt of the hearing transcript by the

administrative law judge, whichever is later. Each party shall

be allowed 10 days in which to submit written exceptions to

the recommended order. A final order shall be entered by the

agency within 30 days of the entry of a recommended order.

The provisions of this paragraph may be waived upon

stipulation by all parties.

(f) In a protest to an invitation to bid or request for proposals

procurement, no submissions made after the bid or proposal

opening which amend or supplement the bid or proposal

shall be considered. In a protest to an invitation to negotiate

procurement, no submissions made after the agency

announces its intent to award a contract, reject all replies, or

withdraw the solicitation which amend or supplement the

reply shall be considered. Unless otherwise provided by

statute, the burden of proof shall rest with the party

Appendix: Page 14 of 83

protesting the proposed agency action. In a competitive-

procurement protest, other than a rejection of all bids,

proposals, or replies, the administrative law judge shall

conduct a de novo proceeding to determine whether the

agency's proposed action is contrary to the agency's

governing statutes, the agency's rules or policies, or the

solicitation specifications. The standard of proof for such

proceedings shall be whether the proposed agency action

was clearly erroneous, contrary to competition, arbitrary, or

capricious. In any bid-protest proceeding contesting an

intended agency action to reject all bids, proposals, or

replies, the standard of review by an administrative law

judge shall be whether the agency's intended action is illegal,

arbitrary, dishonest, or fraudulent.

(g) For purposes of this subsection, the definitions in s.

287.012 apply.

(4) INFORMAL DISPOSITION.--Unless precluded by law,

informal disposition may be made of any proceeding by

stipulation, agreed settlement, or consent order.

(5) APPLICABILITY.--This section does not apply to agency

investigations preliminary to agency action.

§ 120.68, Florida Statutes

120.68 Judicial review.--

(1) A party who is adversely affected by final agency action

is entitled to judicial review. A preliminary, procedural, or

intermediate order of the agency or of an administrative law

judge of the Division of Administrative Hearings is

immediately reviewable if review of the final agency decision

would not provide an adequate remedy.

Appendix: Page 15 of 83

(2)(a) Judicial review shall be sought in the appellate district

where the agency maintains its headquarters or where a

party resides or as otherwise provided by law. All

proceedings shall be instituted by filing a notice of appeal or

petition for review in accordance with the Florida Rules of

Appellate Procedure within 30 days after the rendition of the

order being appealed. If the appeal is of an order rendered in

a proceeding initiated under s. 120.56, the agency whose rule

is being challenged shall transmit a copy of the notice of

appeal to the committee.

(b) When proceedings under this chapter are consolidated

for final hearing and the parties to the consolidated

proceeding seek review of final or interlocutory orders in

more than one district court of appeal, the courts of appeal

are authorized to transfer and consolidate the review

proceedings. The court may transfer such appellate

proceedings on its own motion, upon motion of a party to

one of the appellate proceedings, or by stipulation of the

parties to the appellate proceedings. In determining whether

to transfer a proceeding, the court may consider such factors

as the interrelationship of the parties and the proceedings,

the desirability of avoiding inconsistent results in related

matters, judicial economy, and the burden on the parties of

reproducing the record for use in multiple appellate courts.

(3) The filing of the petition does not itself stay enforcement

of the agency decision, but if the agency decision has the

effect of suspending or revoking a license, supersedeas shall

be granted as a matter of right upon such conditions as are

reasonable, unless the court, upon petition of the agency,

determines that a supersedeas would constitute a probable

danger to the health, safety, or welfare of the state. The

agency also may grant a stay upon appropriate terms, but,

whether or not the action has the effect of suspending or

revoking a license, a petition to the agency for a stay is not a

prerequisite to a petition to the court for supersedeas. In any

event the court shall specify the conditions, if any, upon

which the stay or supersedeas is granted.

Appendix: Page 16 of 83

(4) Judicial review of any agency action shall be confined to

the record transmitted and any additions made thereto in

accordance with paragraph (7)(a).

(5) The record for judicial review shall be compiled in

accordance with the Florida Rules of Appellate Procedure.

(6)(a) The reviewing court's decision may be mandatory,

prohibitory, or declaratory in form, and it shall provide

whatever relief is appropriate irrespective of the original

form of the petition. The court may:

1. Order agency action required by law; order agency

exercise of discretion when required by law; set aside agency

action; remand the case for further agency proceedings; or

decide the rights, privileges, obligations, requirements, or

procedures at issue between the parties; and

2. Order such ancillary relief as the court finds necessary to

redress the effects of official action wrongfully taken or

withheld.

(b) If the court sets aside agency action or remands the case

to the agency for further proceedings, it may make such

interlocutory order as the court finds necessary to preserve

the interests of any party and the public pending further

proceedings or agency action.

(7) The court shall remand a case to the agency for further

proceedings consistent with the court's decision or set aside

agency action, as appropriate, when it finds that:

(a) There has been no hearing prior to agency action and the

reviewing court finds that the validity of the action depends

upon disputed facts;

(b) The agency's action depends on any finding of fact that is

not supported by competent, substantial evidence in the

Appendix: Page 17 of 83

record of a hearing conducted pursuant to ss. 120.569 and

120.57; however, the court shall not substitute its judgment

for that of the agency as to the weight of the evidence on any

disputed finding of fact;

(c) The fairness of the proceedings or the correctness of the

action may have been impaired by a material error in

procedure or a failure to follow prescribed procedure;

(d) The agency has erroneously interpreted a provision of

law and a correct interpretation compels a particular action;

or

(e) The agency's exercise of discretion was:

1. Outside the range of discretion delegated to the agency by

law;

2. Inconsistent with agency rule;

. Inconsistent with officially stated agency policy or a prior

ie practice, if deviation ‘therefrom is not explained by

the agency; or

4. Otherwise in violation of a constitutional or statutory

provision;

but the court shall not substitute its judgment for that of the

agency on an issue of discretion.

(8) Unless the court finds a ground for setting aside,

modifying, remanding, or ordering agency action or ancillary

relief under a specified provision of this section, it shall

affirm the agency's action.

(9) No petition challenging an agency rule as an invalid

exercise of delegated legislative authority shall be instituted

Appendix: Page 18 of 83

pursuant to this section, except to review an order entered

pursuant to a proceeding under s. 120.56, unless the sole

issue presented by the petition is the constitutionality of a

rule and there are no disputed issues of fact.

(10) If an administrative law judge's final order depends on

any fact found by the administrative law judge, the court

shall not substitute its judgment for that of the

administrative law judge as to the weight of the evidence on

any disputed finding of fact. The court shall, however, set

aside the final order of the administrative law judge or

remand the case to the administrative law judge, if it finds

that the final order depends on any finding of fact that is not

supported by competent substantial evidence in the record of

the proceeding.

Florida Administrative Code 62D-2.014

62D-2.014 Activities and Recreation.

(1) Regulation of Recreation Activities. The Division, in

furtherance of the policy and intent of Chapter 258, Florida

Statutes, may prohibit or regulate any activity that lessens

the safety or recreational experience of the visiting public or

lessens the natural or cultural value of the park. Except as

provided herein, all recreational activities will occur at such

locations as designated for specific uses by the Division.

(2) Park Entrance Rules and User Fees.

(a) Entering State Park Property. Entering or leaving any

state park property except through the designated entrance

points ‘except in emergency cases) is prohibited. No person

may enter a state park property for the purpose of using the

resources or facilities therein without paying the appropriate

fee, if any, in effect at the time for that park property. A full

stop shall be made at the Ranger Station when entering a

state park

(b) Fees. Admission fees shall be waived by authorized

Division personnel for representatives of any government

agency and for salesmen, tradesmen or other individuals

Appendix: Page 19 of 83

who will benefit the park or state park system and who

present proper identification.

Admission fees shall also be waived for:

1. Children under six years of age;

2. Patients of Florida State Mental Institutions and clients of

the Department of Juvenile Justice and the Department of

Children and Family Services, and other similar institutions

which are fully funded by federal, state, or local government,

when such patients and/or clients are part of an organized

group or program under the sponsorship and supervision of

their respective institutions or parent agencies;

3. Florida school groups, incluc'ing vocational schools,

colleges and universities, accompanied by one or more

teachers, and bearing a letter from the school principal,

professor or other appropriate official, certifying that the

park visit is related to a specific school curriculum and is for

educational purposes rather than a purely recreational

outing;

4. Division employees and their families;

5. The Division also offers a fifty percent discount on base

camping fees to Florida citizens who are at least 65 years of

age or Florida citizens possessing a current Social Security

disability award certificate or proof of a 100% disability

award from the Federal government or other acceptable

proof of 100% disability.

(c) The Division Director shall recommend standard

admission and other park fees, taking into consideration the

following factors:

1. User demand;

2. Location of the park, including distance from major

metropolitan areas;

3. Cost of managing and operating the park;

. Type of facilities available;

. Season; and

. Natural and historic resource values of the park.

(d) User fees shall become effective after they are advertised

in a general statewide news release, and, if requested,

reviewed at a public hearing, and approved in writing by the

aS Ul

Appendix: Page 20 of 83

Secretary of the Department. Copies of the current fee

schedule may be obtained from State Park offices or by

writing to the Division at MS 500, 3900 Commonwealth

Boulevard, Tallahassee, Florida 32399-3000. ;

(3) Traffic Control. Authorized law enforcement officers and

park personnel shall direct traffic in parks and on roads

adjacent thereto as conditions warrant. All persons shall

comply with lawful orders, signals, and direction of such

officers and personnel. All persons shall observe and comply

with posted traffic control devices and signs.

(4) Speed of Vehicles in Parks. No person shall drive a

vehicle at a speed greater than is reasonable or prudent,

having due regard for the surface, width and condition of

paving and the traffic thereon, particularly when near

children or bicyclists. Speed shall not exceed 25 miles per

hour, and at the more congested centers and near park

buildings, beaches, campgrounds, and picnic and play areas,

it shall not exceed 15 miles per hour or as otherwise posted.

(5) Restriction to Roads. No person shall drive any vehicle on

any area except designated roads, parking areas, or other

such designated areas.

(6) Parking. All vehicles shall be parked only in established

parking areas or in such other areas and at such times as the

Division may designate.

(7) Bathing and Swimming.

(a) No individual shall swim, bathe, or wade in any waters at

such places designated as prohibited for such activity by the

Division. All such activities shall be in compliance with this

chapter.

(b) In every area of a park including bathing areas no

individual shall expose the human, male or female genitals,

pubic area, the entire buttocks or female breast below the top

of the nipple, with less than a fully opaque covering.

(8) Boating.

(a) No person shall operate watercraft regardless of means of

propulsion upon any park watercourse, bay, lagoon, lake,

canal, pond, slough, or those sovereign submerged lands

lying within 400 feet of the Mean High Water or Ordinary

High Water Line within the riparian lines of any state park

Appendix: Page 21 of 83

unit in places designated by the Division as closed for such

purposes.

(b) No watercraft shall be launched into or removed from

any park waters, except at places designated for such

purpose by the Division.

(c) No person shall moor, anchor or tie up to any buoy,

marker, bank or any wharf, dock, tree, building or other

object or structure on the bank, any watercraft of any kind in

waters within or contiguous to park areas within one

hundred feet of the shoreline, in areas designated by the

Division as closed for such purposes. This restriction does

not apply to vessels of a law enforcement agency of a local,

state, or federal government.

(d) No person other than a Division employee or a

concessionaire of the Division shall rent or hire, for profit or

charge, any kind of watercraft in any park waters. Nor shall

any watercraft operating for hire or carrying passengers for a

fee, or contemplating such, land or receive such passengers

at any dock, wharf or anchorage within jurisdiction of the

Division except by permit. Permits shall be issued only when

no concession agreement exists or when the concessionaire

does not wish to provide the services requested. Permits

shall be issued when it is determined by the Division that the

request to provide this service would not adversely affect

park resources, would be consistent with park management

practices as stated in ss. 258.004, 258.007, 258.017 and 258.037,

Florida Statutes, and would provide a needed visitor service.

Permits shall be applied for in the same manner as in

subsection 62D-2.013(7), herein.

(e) No person operating passenger launches or excursion

boats from outside the parks that are for rent or hire or

carrying passengers for money shall land or anchor or tie up

in any park without first having applied for and received a

permit from the Division. Permits shall be issued when it is

determined by the Division that the request to provide this

service would not adversely affect park resources, would be

consistent with park management practices as stated in ss.

258.004, 258.007, 258.017 and 258.037, Florida Statutes, and

would provide a needed visitor service. Permits shall be

applied for in the same manner as in subsection 62D-2.013(7),

Appendix: Page 22 of 83

herein. All persons operating such watercraft shall be subject

to all Division boating rules.

(9) Fishing.

(a) Fishing is allowed in park waters, by any legal method,

except where prohibited by the Division and under the

provisions of this chapter. Any device which is employed to

remove, capture, or attempt to capture fish in any waters

closed to fishing or any device otherwise used in violation of

this chapter shall be seized and confiscated by law

enforcement officers.

(b) Under the provisions of this chapter commercial fishing

for food and bait fish is allowed in the John Pennekamp

Coral Reef State Park, St. Lucie Inlet State Park and those

sovereign submerged lands lying within 400 feet of the Mean

High Water or Ordinary High Water Line within the riparian

lines of any state park unit under Division jurisdiction,

except as prohibited in Rule 62D-2.014(1).

(c) All fishing in John Pennekamp Coral Reef State Park is

subject to Florida Fish and Wildlife Conservation

Commission Rule 68B-5.002, Florida Administrative Code,

and provisions of Rule 62D-2.

(d) Spearfishing is prohibited in all state parks.

(10) Hunting and Firearms. Hunting, trapping or the pursuit

of wildlife is prohibited on all park property, except in

Reserves, as authorized by the Florida Fish and Wildlife

Conservation Commission. No person shall use, carry, or

possess in any park weapons such as firearms of any type,

air rifles, spring guns, bows and arrows, gigs (except in areas

where gigs may be legally used for saltwater fishing), sling

shots, or any other forms of weapons or trapping devices

potentially dangerous to wildlife or human safety except

when such weapons or traps are used for resource

management purposes as authorized in this subsection.

Shooting into park areas from beyond park boundaries is

prohibited. Any device which is employed to kill,

immobilize, or capture any wildlife or any device otherwise

used in violation of this chapter shall be seized and

confiscated by law enforcement officers. The Division may

authorize the control of nuisance animals and may remove

all exotic animals from parks by trapping and other

Appendix: Page 23 of 83

necessary means for park resource management purposes.

Such authorization shall be in the form of a license, permit,

or contract negotiated by the parties or made pursuant to an

advertised bid by the Division. Authorization may be

obtained in the same manner as stated in 62D-2.013(7),

herein.

(11) Subleases of Certain Properties. The Division may

sublease certain properties, or portions thereof, to other state,

county or local governmental agencies for management

purposes subject to approval by the Board of Trustees of the

Internal Improvement Trust Fund in accordance with ss.

253.034(4), Florida Statutes. The terms and conditions of the

sublease shall control the use and management of the

property.

(12) Alcoholic Beverages. Possession and consumption of

alcoholic beverages within any park during established

operating hours are prohibited except in those facilities such

‘as restaurants and lodges.

(13) Domestic Animals.

(a) Domestic animals shall be regulated in parks at any time

when appropriate to enhance the recreational experience of

other visitors or to protect the parks’ resources.

(b) Domestic breeds of dogs, cats and other fur-bearing pets,

except dog guides, services dogs and nonhuman primates of

the genus cebus, which are trained and registered for

assisting the physically impaired, shall be excluded from the

following places in a park: food-service areas, designated

camping areas, cabins, bathing and swimming areas

including land and water portions, park buildings,

playgrounds, and other designated areas. Pets are permitted

in all other areas subject to the following restrictions:

1. All pets must be confined, leashed, or otherwise under the

physical control of a person at all times. Leashes may not

exceed six feet in length. This rule does not apply to horses

and pack animals brought in for equestrian trail use.

2. Pets must be well behaved at all times. Pets must be

confined in the owner’s camping unit during designated

quiet hours. Unconfined pets may not be left unattended for

more than 30 minutes.and must be leashed.

Appendix: Page 24 of 83

3 Pet owners shall pick up after their pets and properly

dispose of all pet droppings in trash receptacles.

4. Pets which are noisy, vicious, dangerous, disturbing or

intimidating to other persons, and pets which damage park

resources are considered to be nuisances and will not be

permitted to remain in the park.

5. Owners of dogs and cats and other pets, required by

Florida Law to be vaccinated against rabies, must provide

proof of rabies vaccination when registering to camp.

(c) Camping areas and other park areas will be evaluated, as

to the suitability of pets, on a periodic basis as part of the

unit management planning process. Areas of the park

designated as prohibited for pets shall be determined based

on park natural and cultural resources, primary recreational

activities, camper and pet health and safety, geographical

location and layout of camping areas, and the ability to

provide a quality recreational experience for all visitors. A

fee will be charged for each pet accompanying a camping

party.

(14) Merchandising. No person shall offer for sale any article

or material, nor place any stand, cart, or vehicle for the

transportation, sale or display of any article or material for

sale within any state park unless authorized by the Division.

Authorization shall be issued when park resources are not

adversely affected, existing contractual relationships are not

impaired, a needed visitor service is provided, and the

activity would be consistent with park management practices

as stated in ss. 258.004, 258.007, 258.017 and 258.037, Florida

Statutes. Authorizations may be obtained in the same

manner as stated in 62D-2.013(7), herein.

(15) Aircraft. No person operating or responsible for any

aircraft, glider, balloon, parachute, or other aerial apparatus

shall cause any such apparatus to take off from or land in

any park except in an emergency when human life is

endangered or where a designated landing facility may exist

on park property. oa in

(16) Hours.

(a) The opening and closing hours for each park shall be

posted. No person shall remain in any park after closing

unless properly registered as an overnight visitor or in

Appendix: Page 25 of 83

possession of a valid after hours permit from the Division or

park manager. Said permits may be obtained from the park

office where such after hours use is offered.

(b) The Division, in furtherance of the park management

practices as stated in ss. 258.004, 258.007, 258.017 and 258.037,

Florida Statutes, may close any park or section thereof to the

public at any time and for any interval of time, either

temporarily or at regular stated intervals and either entirely

or only for certain uses. Park closures will be used to provide

visitor and employee safety, resource protection, operational

efficiency, and facility maintenance. No person shall remain

in any closed park or section

thereof, unless authorized by the Division or park manager,

or their delegee. Verbal authorization shall be granted by the

Division, the park manager, or their delegee, when it is in the

best interest of the park, or of the person remaining in the

closed area, for safety, protection, construction, or restoration

purposes. .

(17) Photography. All commercial photography, motion

pictures, and other media production activities are

prohibited without a permit from the Division. All private

photography involving special settings or structures (such as

use of exotic animals or attachments to park lands) which

adversely impacts park resources or public recreational

activities is prohibited without authorization by the Division.

Permits for these activities shall be issued if the activity is

consistent with park management practices as stated in ss.

258.004, 258.007, 258.017 and 258.037, Florida Statutes, and

the activity would not disrupt normal park operation,

adversely impact the park's resources, or disrupt the public's

normal enjoyment of the park. Permits may be obtained at

the park for which the permit is desired and after approval

by the park manager of requested photographic

arrangements and receipt of published fees. A state parks fee

schedule may be obtained by writing to the Division of

Recreation and Parks, MS 500, 3900 Commonwealth

Boulevard, Tallahassee, Florida 32399-3000. All activity

under the permit is subject to the terms and conditions listed

on the permit and to the provisions of Rule 62D-2. The time

and exact location within a park for photography shall be

Appendix: Page 26 of 83

mutually satisfactory to the park manager and the permittee.

All other private photography is encouraged. Commercial

photography productions and related activities which would

disrupt normal park operations, adversely impact the park's

resources, or disrupt the public's normal enjoyment of the

park shall require a contract. The terms of the contract shall

be negotiated with the Division and must result in a net

positive benefit to the park. This subsection is not intended

to, and shall not, impair any constitutional right of free

speech.

(18) Free Speech Activities. Free speech activities include, but

are not limited to, public speaking, performances,

distribution of printed material, displays, and signs. Free

speech activities do not include activities for commercial

purposes. Any persons engaging in such activities can

determine what restrictions as to time, place, and manner

may apply, in any particular situation, by contacting the park

manager. Free speech activities shall not create a safety

hazard or interfere with any other park visitor's enjoyment of

the park's natural or cultural experience. The park manager

will determine the suitability of place and manner based on

park visitor use patterns and other visitor activities occurring

at the time of the free speech activity.

Specific Authority 253.034(4) FS. Law Implemented 258.004,

258.007(1),(2),(3) 258.014, 258.016, 258.017, 258.037 ES.

History—New 4-16-96,

Amended 4-14-98, 12-19-99.

Department of Environmental Protection

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Mail Station 35

Telephone: 850-488-9314

Facsimile: 850-414-1228

Appendix: Page 27 of 83

November 28, 2000

BY FACSIMILE ONLY

Mr. Marv Frandsen

4467 Country Rd.

Melbourne, FL 32934

Dear Mr. Frandsen:

Perry J. Smith, Manager of Honeymoon Island State

Park has asked me to respond to your request to coordinate

time, place and manner restrictions regarding your free

speech activities at the park on December 2, 2000. There are

three such restrictions which are applicable to all of your

proposed activities. First, whenever free speech activities are

held in a state park, the manager must always consider

public safety issues, park operations, and the use and

enjoyment by other visitors. In light of these concerns the

park staff are unable to accommodate a 7 hour

demonstration as this would create a unreasonable burden

on park personnel and would impede use of the park by

other visitors. Therefore, the times on that date in which

your demonstration can be accommodated by the park are

either 9:00 AM to 11:00 AM or 2:00 PM to 4:00 PM.

The second such restriction is related to the place of

your planned activities, especially the-parade you refer to in

paragraph (b). Due to the concerns and responsibilities of

park staff stated in the paragraph above, each of your

activities will be limited to an appropriate area of the park.

Please consult with Manager Smith to determine which area

will be most suitable on December 2nd.

The third such restriction is related to the manner in

which your activities are to be conducted. At all times any

activity in the Park must be held in accordance with F.A.C.

Rule 62D-2.014(7)(b), which states that “no individual shall

Appendix: Page 28 of 83

ras

expose the human, male or female genitals, pubic area, the

entire buttocks or female breasts below the top of the nipple,

with less than a fully opaque covering.” Please ensure that

no nudity is involved in any stage of your activities.

Violation of any park rule constitutes a second degree

misdemeanor under s. 258.007(2), Florida Statutes, and

enforcement of such rules can include arrest of the

violator(s).

Letter to: Mr. Marv Frandsen

November 28, 2000

Page Two

The fourth and final restriction is also related to the

manner. No sound amplification may be used in the state

park due to its tendency to interfere with the other visitors’

enjoyment of the natural surroundings, which is what

Florida State Parks are all about. See s. 62D-2.014(18), F.A.C.

Copies of all cited rules and statutes are included for your

reference.

If you have any further questions or concerns fee! free

to contact me or Suzanne Brantley at the above address or

phone number.

Sincerely,

(/s/ for) Mara B. Levy

Assistant General Counsel

MBL/sbw

Enclosure(s)

cc: Perry J. Smith

Michael Murphy

John Baust

Appendix: Page 29 of 83

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN VAUN FRANDSEN, )

Petitioner, )

Vs. | Case No. 01-0527RX

DEPARTMENT OF rT )

PROTECTION, )

Respondent.

FINAL —a

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Charles A. Stampelos, held a final hearing in the above-

styled case on May 30 and 31, 2001, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marvin Vaun Frandsen, pro se

4467 County Road

Melbourne, Florida 32934

For Respondent: Suzanne B. Brantley, Esquire

Mara B. Tickett, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

At issue in this proceeding is whether the

Department of Environmental Protection (Department),

Division of Recreation and Parks' (Division) existing Rule

Appendix: Page 30 of 83

ead cig iRie cetts

CAT

62D-2.014(18), Florida Administrative Code (Rule), is an

invalid exercise of delegated legislative authority.

Specifically, the issues are whether the Division has exceeded

its grant of rulemaking authority and whether the Rule is

vague, fails to establish standards for Division decisions, and

vests unbridled discretion in the Division.

PRELIMINARY STATEMENT

On February 5, 2001, Petitioner, Marvin Vaun

Frandsen (Frandsen) filed a “Petition to Declare State Park

“Free Speech" Rule Invalid." Frandsen alleged that Rule 62D-

2.014(18) is an invalid exercise of delegated authority, that

certain agency statements are rules and violate Section

120.54(1)(a), Florida Statutes (2000), that the Division's

application of the Rule "to restrict, limit or forbid free speech

activities in state parks" is invalid, and that the Rule is an

unconstitutional prior restraint. (All citations to the Florida

Statutes are to the 2000 version unless otherwise indicated.)

On May 22, 2001, the Department filed a Motion in

Limine, and in essence, requested an order limiting Frandsen

from introducing evidence regarding any "as applied"

challenge to the validity of the Rule which appeared in his

Petition and further to limit Frandsen's evidence regarding

particular restrictions placed on Frandsen and others and

activities in state parks involving nudity and the restrictions

placed on nudity and the

2

Division's policy on nudity. In part, the Department

suggested that Frandsen must file a separate petition, and

necessarily with the Department, pursuant to Sections

120.569 and 120.57, Florida Statutes, in order to challenge the

validity of specific agency statements (which may include

agency action related to Frandsen) which may have been

applied to him and which may have affected his substaritial

interests.

Frandsen filed a Response and also filed a Petition in

Case No. 01-2067RU, challenging the legality of various

agency statements “on their face and as applied" to him. The

Appendix: Page 31 of 83

latter Petition was filed in response to the Department's

Motion. The second Petition incorporated some of what was

alleged in this rule challenge, with additional allegations

pertaining to his "as applied" challenge. However, the second

Petition was filed with the Division of Administrative

Hearings in the context of a non-rule policy challenge,

notwithstanding reference to Sections 120.569 and 120.57,

Florida Statutes. The Petition was not filed with the

Department. See Hasper v. Department of

Administration, 459 So. 2d 383 (Fla. Ist DCA 1984).

The parties discussed their respective positions

during a telephone hearing on May 25, 2001, and Frandsen

orally withdrew his Petition filed in Case No. 01-2067RU and

the Division of Administrative Hearing's file was closed.

3

The Motion in Limine was otherwise denied without

prejudice. See Order, May 29, 2001.

Consistent with Frandsen's withdrawal of his Petition

in Case No. 01-2067RU, on May 29, 2001, Frandsen filed a

"Motion to Amend Petition to Narrow Scope of Claims,” to

exclude his challenge to agency statements as rules pursuant

to Section 120.54(4)(a), Florida Statutes. The Department did

not object. The Motion was granted and Frandsen’s challenge

to the agency statements as rules referenced in his Petition

were excluded. See Order, May 29, 2001.

At hearing, Frandsen called eight witnesses: himself;

Toni Anne Wyner; John C. Palm; Perry J. Smith, Park

Manager IV of the Division of Recreation and Parks,

Department of Environmental Protection; Michael K.

Murphy, District 4 Bureau Chief of the Division of Recreation

and Parks, Department of Environmental Protection; John

Baust, Bureau Chief of Operational Services of the Division

of Recreation and Parks, Department of Environmental

Protection; Fran Mainella, Director of the Division of

Recreation and Parks, Department of Environmental

Protection; and Eric Miller, Bureau Chief of Park Patrol of the

Division of Law Enforcement, Department of Environmental

Protection. The Department called Perry J. Smith, Michael K.

Murphy, John Baust, Fran Mainella, and Eric Miller.

Appendix: Page 32 of 83

4

Frandsen offered 63 exhibits, all of which were

admitted. The Department's Exhibits 1 through 4 were also

admitted into evidence.

The Transcript was filed June 28, 2001. The parties

stipulated to extend the time to file proposed final orders

until August 27, 2001. Frandsen filed a Closing Argument

and a Memorandum of Law, and each party filed a proposed

final order which have been considered in the preparation of

this Final Order. Frandsen also filed a Motion for

Reimbursement of Costs should he prevail, which is denied

based upon the disposition of this proceeding.

FINDINGS OF FACT

F sen

|. Frandsen is a citizen of the state of Florida who is

interested in free speech activities in state parks that advance

the cause of naturist activities, including recreation.

Frandsen is a physicist and works for the United States Air

Force, essentially as a defense scientist.

2. Frandsen's original challenge in this proceeding

was directed, in part, to the Division's application of the Rule

and the validity of agency statements as rules and as applied

to him. Frandsen has deleted these from his challenge. This

Final Order does not decide whether the Division has

properly applied the Rule to Frandsen nor whether any

agency statements are

5

invalid, nor whether the Rule is constitutionally infirm either

on its face or as applied.

3. Frandsen's cause, with respect to the state park

system, is to see limited, designated areas within state parks

open to "clothing optional recreation, particularly beachfront

recreation, where someone can sunbathe,” "socialize," and

“swim nude in the ocean and on the beaches as the human

race has for eternity."

Appendix: Page 33 of 83

4. Frandsen is aware of the anti-nudity rule, Rule

62D- 2.014(7)(b), but is challenging the right to be able to

advocate changing the rule which prohibits nudity. For

Frandsen, "|t]he issue [here] is [his] ability to exercise free

speech to communicate with the public to advocate for [his]

cause," in a state park. Conversely, "[t]his action does not

deal with the issue of whether [Frandsen has] a

constitutional right to incorporate nudity into a

communication.” His main concern is the absence of

standards in Rule 62D-2.014(18) to channel the Division's

exercise of discretion relating to time, place, and manner

restrictions placed on free speech activities and also

the threat of arrest if the restrictions are not complied with.

5. The Department stipulated that Frandsen has

standing to challenge Rule 62D-2.014(18) as an invalid

exercise of delegated legislative authority.

6

Department and Division

6. The Department is an agency of the state of Florida,

which manages and operates state parks under its

jurisdiction, pursuant to Chapter 258, Part I, Florida Statutes,

through its Division of Recreation and Parks.

7. The Division has the duty "to supervise,

administer, regulate, and control the operation of all public

parks . . .." Section 258.004(1), Florida Statutes. Additionally,

the Division "shall preserve, manage, regulate, and protect

all parks and recreational areas held by the state . . .." Section

258.004(2), Florida Statutes.

8. It is the policy of the Division "[t]o promote the

state park system for the use, enjoyment, and benefit of the

people of Florida and visitors . . . administer the

development, use and maintenance of these lands and render

such public service in so doing, in such a manner as to enable

the people of Florida and visitors to enjoy these values

without depleting them. . .." Section 258.037, Florida

Statutes.

=~ 9.""The division has authority to adopt rules pursuant

to ss. 120.536(1) and 120.54 to implement provisions of law

Appendix: Page 34 of 83

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ins nana i selon ala

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SNEWS IS tet a Ah

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seit

conferring dutiés on it, and the violation of any rule

authorized by this section shall be a misdemeanor and

punishable accordingly.” Section 258.007(2), Florida Statutes.

State Parks

/

10. The Division manages 155 state parks, which

comprise over a half a million acres. The term "state parks" is

generic and includes historic sites, beach areas, river parks,

parks with swimming pools, geological sites, archeological

sites, and recreation areas. The parks are very diverse and

offer different opportunities for visitors. The parks can range

in size from just a few acres to over 25,000 acres.

11. Florida's state park system is the fourth largest in

the nation. Over 16 million people visited the parks last year,

which was an increase of 13 1/2 percent from the previous

year. a

12. The state park system is divided into five districts,

each of which includes 20 to 30 parks. The Division employs

over 1,000 full-time employees and approximately 300 to 500

part-time, OPS help.

13. Each district is under the supervision of a district

bureau chief who is responsible for that district's employees,

visitors, volunteers, and parks.

14. Individual parks or groups of parks are under the

direct supervision of a park manager. Honeymoon Island

State Park, which is located on the west coast of Florida in

Pinellas County, is one of six main parks all managed by the

same park manager. It is part of a GEO (Geographically

Efficient

8

Operation) park, which includes 15 properties, both

submerged lands and uplands, and extends through 3

counties.

15. Not every park is staffed with Division personnel

at all times. For example, District 4 has approximately 25

parks with 17 park managers. In parks which are not staffed

the telephone numbers of the park manager and assistant

,

Appendix: Page 35 of 83

manager are posted within the park at various locations

including near the restrooms, pay phones, concessions, or

camp grounds.

16. Various activities are enjoyed in state parks

including: swimming, camping, hiking, boating, biking,

horseback riding, wildlife viewing, snorkeling, guided tours,

and picnicking. Each park offers a different number and

combination of these activities. The Division's primary

mission is to enable the public to enjoy outdoor-based

resource recreation.

17. Through its rules, the Division regulates many

activities in state parks to ensure the safety of visitors and

to protect park resources, including the speed of vehicles,

parking, boating, fishing, the consumption of alcoholic

beverages, bathing and swimming, domestic animals,

hunting, merchandising, aircraft, and commercial

photography. See Rule 62D-2.014(4), (6), (7), (8), (9), (10), (12),

(13), (14), (15), and (17), Florida Administrative Code.

9

The Rule

18. Rule 62D-2.014(18), Florida Administrative Code,

provides:

Free Speech Activities. Free speech

activities include, but are not limited to,

public speaking, performances, distribution

of printed material, displays, and signs.

Free speech activities do not include

activities for commercial purposes. Any

persons engaging in such activities can

determine what restrictions as to time,

place, and manner may apply, in any

particular situation, by contacting the park

manager. Free speech activities shall not

create a safety hazard or interfere with any

other park visitor's enjoyment of the park's

natural or cultural experience. The park

Appendix: Page 36 of 83

eel the Wega fei

ee ee ee OTs re

manager will determine the suitability of

place and manner based on park visitor use

patterns and other visitor activities

occurring at the time of the free.speech

activity.

19. Rule 62D-2.014 pertains to "activities and

recreation." Section 258.007(2), Florida Statutes, is cited as

the specific authority for Rule 62D-2.014, including

Subsection (18). Rule 62D-2.014, including Subsection (18),

implements Sections 258.004, 258.007(1)-(3), 258.014, 258.016,

258.017, and 258.037, Florida Statutes.

20. The Rule was adopted in 1996 to inform the public

that free speech activities are welcome in state parks. It sets

broad guidelines and standards for park managers to ensure

that the public's First Amendment rights are respected and

not infringed. The Division felt the need for a rule "to put

park

10

staff on notice that [First Amendment activity] is okay and it

is allowable and it is acceptable." No permits have been

issued for free speech activities since the mid-1990's as a

result of a federal court order. See The Naturist Society, Inc.

v. Fillyaw, 858 F. Supp. 1559 (S.D. 1994),

21. The Rule was not intended to be all encompassing

because of the diversity of the parks. Most activities in the

parks include some form of free speech activity. The term

‘include, but are not limited to" means anything that is

covered by the First Amendment, whether it be oral, written,

or symbolic conduct. The Rule applies to even a single

individual wishing to engage in free speech activities as

defined by the Rule, including, but not limited to the activity

of "displays" and "signs."

22. The Rule states that free speech activities shall not

interfere with any other park visitor's enjoyment of the park's

natural or cultural experience. This means that people are

free to conduct any activity they choose so long as the

manner in

Appendix: Page 37 of 83

which they do it does not infringe on other park visitors’

purpose for coming to the park. For example, if an area of a

particular park were known for bird watching, it would be

inappropriate for someone to walk through that area playing

loud music or shouting. The Rule contemplates that the

Division will be diligent in protecting visitor enjoyment and

safety.

1]

23. The Rule states that free speech activities shall not

create a "safety hazard." Safety hazards vary depending on

the activity, area, and park involved. They can range from

the dangers inherent to a large assembly of people, which

would be the same in any park, to the dangers of holding a

particular activity in a specific area of a specific park. The

types of safety hazards a manager must consider will vary

significantly with the type of activity and the park in which it

takes place.

24. Park managers also consider "visitor use patterns’

when determining the suitability of the time, place, and

manner of a particular activity. Visitor use patterns are the

different activities, which typically occur in a particular

park. They vary by time of the day and the season and are

therefore different day-by-day and park-by-park. For

example, a visitor may tour the Gamble Plantation as a

historic site, but not swim. At Honeymoon Park, people use

the beach and swim. Moreover, during the summer, the use

patterns at Wakulla Springs State Park for swimming are

heavy, whereas the pattern for swimming decreases rapidly

during the winter. Different safety concerns arise given the

nature and use(s) of each park.

25. A person or group wishing to engage in free

speech activities are not always able to access a park

manager to determine applicable time, place, and manner

restrictions

12

because the park manager may not be on duty during all

hours and days when the park is open.

26. The Division does not decide in advance and

Appendix: Page 38 of 83

PB ed ens v8

Aba ti ee,

publicly post or otherwise publicly provide generic time,

place, and manner restrictions.

27. Beyond the Rule, there are no written documents,

handbooks, guidelines, and policies of general application to

provide guidance to the Division park managers to

determine what time, place, and manner restrictions may be

applied.

28. Each determination of time, place, and manner

restrictions by the Division, including the resources, which

may be needed to be expended to accommodate a free

speech activity, is made ona case-by-case basis based upon

the criteria in theRule.

29. Because of the number of parks, their diversity,

Staffing issues, and the varying attendance on particular days

or in particular seasons, it would be impracticable to develop

a set of standard time, place, and manner restrictions for

every possible activity, which may occur in every park.

30. The Rule contemplates that a park manager may

consult with other personnel with the Department and the

Division regarding the application of the Rule. Park

managers have consulted with legal counsel prior to

responding to a request or, in some cases, request legal

counsel to respond directly to

13

the requesting person. This procedure is the norm regarding

requests for "clothing optional demonstration[s]." The

Department's "Office of General Counsel is consulted on all

nudity issues that may involve free speech to ensure

compliance with all current laws” and responses are given on

a case-by-case basis in light of counsel's interpretation of the

Rule, reached in conjunction with First Amendment case

law.

31. The Rule does not require contact with a park

manager prior to engaging in a free speech activity.

32. The Rule contemplates that the public may contact

a park manager to ensure that a planned activity will not

create a safety hazard or conflict with other planned

activities. For example, weddings are welcomed in the state

Appendix: Page 39 of &3

parks, although prior notification is not required. But,

notification can be helpful to the park manager to determine

the number of people involved and the time of day to ensure,

for example, that parking is available.

33. Although the Rule does not state a time in which

park managers must respond to a request for any applicable

time, place, and manner restrictions, the Rule contemplates

that these decisions will be made within a reasonable time.

The Division expects their park managers to respond in an

expeditious manner. The Division's typical practice is to

respond within a 2 or 3 week period. There have been

exceptions to this expectation.

14

The level of complexity of the inquiry may lengthen the time

to respond.

34. Generally, any person dissatisfied with a response

from the park manager may contact various levels of

responsibility throughout the Division and Department. This

process is not referred to as “an official administrative

appeal." Nevertheless, any decision regarding an

interpretation of a park rule or a response to an inquiry

results in the formulation of agency action. Any person

substantially affected by the agency action should be given a

point of entry to challenge the agency action pursuant to and

consistent with the procedural requirements of the APA. See

Department's Proposed Final Order, page 10, paragraph 46.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.56, Florida Statutes.

36. Frandsen alleges that Rule 62D-2.014(18), is an

invalid exercise of legislative authority because (1) the

Division has exceeded its grant of rulemaking authority

under Section 120.52(8)(b), Florida Statutes, and (2) the Rule

is vague, fails to establish adequate standards for Division

decisions, and vests unbridled discretion in the Division

under

—!

Appendix: Page 40 of 83

Section 120.52(8)(d), Florida Statues.

15

37. Frandsen has the burden of proving the invalidity

of the Rule 62D-2.014(18). St. Johns River Water Managemen

District v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 76-

77 (Fla. Ist DCA 1998)(Tomoka).

The standards for determining whether an existing

Rule implements or interprets a specific statutory

power and duty.

38. Material here, an "invalid exercise of delegated

legislative authority” is:

[an] action which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.; or

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency.

Section 120.52(8)(b)(d), Florida Statutes.

39. The "flush left," language of Section 120.52(8),

Florida Statutes, provides the following standards in the

closing paragraph:

A grant of rulemaking authority is necessary

but not syfficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

the authority to adopt a rule only because

Appendix: Page 41 of 83

16

it is reasonably related to the purpose of

the enabling legislation and is not

arbitrary and capricious or is within the

agency's class of powers or duties, nor

shall an agency have the-authority to

implement statutory provisions setting forth

general legislative intent or policy.

Statutory language granting rulemaking

authority or generally describing the powers

and functions of an agency shall be

construed to extend no further than

implementing or interpreting the specific

powers and duties conferred by the same

statute.

40. This language "provides general standards to be

used in determining the validity of arule in all cases

Southwest Florida Water Management District v. Sav e the

Manatee Club, Inc., 773 So. 2d 594, 597 (Fla. Ist DCA 2000)

(Save of the Manatee). This language also appears verbatim

in Section 120.536(1), Florida Statutes.

41. Some digression in the legal discussion pertinent

to this case is necessary in order to place the "flush left"

language in context, which has beenrecently explained by

Judge Padovano, writing for the court, in Save the Manatee

in light of 1999 amendments to the "ilush left” language.

2. "In 1996, the Legislature sgnificantly revised the

Administrative Procedure Act (APA), Chapter 120, Florida

Statutes, to clarify definitions and exceptions and to simplify

its procedures. Notable among the 1996 amendments to the

APA are amendments creating a statutory standard for

rulemaking

17

(s.120.536(1), F.S.) and inclusion of this standard [the flush

left language] in the definition of aninvalid exercise of

Appendix: Page #2 of &3

si cia etal

delegated legislative authority (s.120.52(8), F.S.)." See House

of Representatives as Further Revised by the Committee on

Governmental Rules and Regulations Final Analysis, CS/ HB

107 (Chapter 99-379, Laws of Florida), June 30, 1999, Storage

Name: h0107z.grr, page 2.

43. The 1996 amendments included, in material part,

the "flush left" language, and provided that, "[a]n agency

may adopt only rules that implement, interpret, or make

specific the particular powers and duties granted by the

enabling statute." Section 120.52(8), Florida Statutes (Supp.

1996). See also Save of Manatee, 773 So. 2d at 598. This

standard was discussed in several cases, including Tomoka.

44. In Tomoka, land owners challenged proposed

rules of the water management district that would have

added two hydrologic basins to five others within the district

and would have imposed four new development standards

within these basins. Administrative Law Judge Donald R.

Alexander found the proposed rules to be supported by

competent substantial evidence, but concluded that the

statutory authority on which they were based was"...

merely a general, nonspecific description of the agency's

duties.” Judge Alexander determined that the enabling

statute must "detail" the powers and duties that are the

subject

18

of the rules and, since it did not, the rules were not within

the "particular powers and duties" granted by the enabling

statute. Consolidated-Tomoka Land Company, et al. v. St.

Johns River Water Management District, et al., DOAH Case

Nos. 97-0870RP and 97-0871RP, Final Order, June 27, 1997.

As a result, the proposed rules were invalidated and the

decision was appealed by the water management district.

The court reversed. The court determined that the proper test

to determine whether a rule is a valid exercise of delegated

authority pursuant to the 1996 version of the APA:

is a functional test based on the nature of

the power or duty at issue and not the level

of detail in the language of the applicable

Appendix: Page 43 of 83

statute. The question is whether the rule

falls within the range of powers the

Legislature has granted to the agency for

the purpose of enforcing or implementing the

statutes within its jurisdiction. A rule is

a valid exercise of delegated legislative

authority if it regulates a matter directly

within the class of powers and duties

identified in the statute to be implemented.

This approach meets the legislative goal of

restricting the agencies’ authority to

promulgate rules, and, at the same time,

ensures that the agencies will have the

authority to perform the essential functions

assigned to them by the Legislature.

The class of powers and duties

delegated to an agency could be defined

broadly or specifically depending on the

Legislature's objective. For example, a

statute authorizing rules pertaining to the

general operating functions of an agency

might be broadly stated to enable the agency

to promulgate a variety of rules, all of

19

which are within the general class. In

contrast, a statute authorizing a regulatory

rule might be narrowly tailored to restrict

the agency's authority within a precise

range. These decisions are ultimately

within the province of the Legislature.

Tomoka, 717 So. 2d at 80-81.

45. In 1999, the Legislature considered HB 107 and SB

206 that were identical. In material part, HB 107 was written

to amend the "flush left" language in Sections 120.52(8) and

Appendix: Page 44 of 83

a a ce te Ge ene ee *

a Rn AM LL PEGA OR Os Lite

120.536(1), Florida Statutes (Supp. 1996), striking the

adjective "particular" and replacing it with "detailed." See

House of Representatives Committee on Water and Resource

Management Bill Research & Economic Impact Statement,

HB 107, Dec. 21, 1998, Storage Name: h0107.wrm, Page 7.

However, in the enacted version of Committee Substitute for

House Bill Number 107, the Legislature dropped "detailed"

and "particular," and retained "specific" as the adjective

before "powers and duties granted by the enabling statute."

46. In 1999, it was the express "intent of the

Legislature that modifications contained in [the 1996

amendments to Sections 120.52(8) and 120.536, Florida

Statutes, including the amended "flush left" language] which

apply to rulemaking are to clarify the limited authority of

agencies to adopt rules in accordance with chapter 96-159,

Laws of Florida, and are intended to reject the class of

powers and duties analysis." Chapter 99-378,

20

Section 1, at 2280-2281, Laws of Florida (emphasis added). "It

[was] not the intent of the Legislature to reverse the result of

any specific judicial decision," i.e., Tomoka. Id.

47. Thus, in 1999, the Legislature rejected the "judicial

interpretation [in Tomoka] of this standard which created a

functional test to determine whether a challenged agency

rule is directly within the class of powers and duties

identified in the statute to be implemented.” House of

Representatives Final Analysis, June 30, 1999, page 5 (citation

omitted).

48. "The new law [enacted in 1999] gives the agencies

authority to ‘implement or interpret’ specific powers and

duties contained in the enabling statute." Save of the

Manatee, 773 So. 2d at 599. The court noted, however, that:

[a] rule that is used to implement or

carry out a directive will necessarily

contain language more detailed than that

used in the directive itself. Likewise, the

use of the term ‘interpret’ suggests that a

Appendix: Page 45 of 83

rule will be more detailed than the

applicable enabling statute. There would be

no need for interpretation if all of the

details were contained in the statute

itself. It follows that the authority for an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the

grant of authority is specific enough.

Either the enabling statute authorizes the

rule at issue or it does not. As the

Florida Chamber of Commerce said in its

21

brief, this question is one that must be

determined on a case-by-case basis.

Id. (emphasis in original).

49. In summary, the Legislature developed a standard

for agencies to follow when promulgating rules. But, an

agency does not have the authority to adopt a rule merely

because the rule "is within the agency's class of powers and

duties" because "[an] administrative rule must certainly fall

within the class of powers and duties delegated to the

agency, but that alone will not make a rule a valid exercise of

legislative power." Save the Manatee, 772 So. 2d at 598-599.

Further, the court believes the 1999 "flush left" language is

unambiguous, thus justifying resort solely to a dictionary to

define key terms, e.g., the term "specific." Id. at 599.

Importantly, the court held that "the authority to adopt an

administrative rule must be based on an explicit powe

: identified in the enabling s >." Id. (emphasis

added). This explanation of the standard was re-affirmed in

State of Florid rd of Trustees of the Internal

aproveme st F V. ise Associati C., ae

Fla. L. Weekly D2240a (Fia. Ist DCA Sept. 13, 2001).

Appendix: Page 46 of 83

50. Stating the general standard is one thing; it is

quite another to apply the standard ona case-by-case basis,

as here.

22 a -

The duties and powers of the Division.

51. In 1949, the Legislature enacted Chapter 25353, at

777, Laws of Florida. This Chapter created the Florida Board

of Parks and Historic Memorials (Florida Board) and

provided in part that "[i]t shall be the duty of the board to

supervise, administer, regulate and control . . . [t]he

operation of all public parks . . .." Id. Section 6, at 779. The

powers of the Florida Board were separate’y stated.Id.

Section 7, at 780.

52. The Legislature also provided several "whereas"

clauses, including the statements that "WHEREAS, the

conservation, development and protection of forests and

forest lands is so divergent from the purpose for which the

Florida Park service was created, which purpose was to

conserve the scenery and the natural and historic objects and

the wild life therein and to provide for the enjoyment of the

same in such manner and by such means as will leave them

unimpaired for the enjoyment of future generations, as to

require, in the best interest of the people, that the activities be

under the administration of separate agencies, and...

WHEREAS, certain buildings, roads, trails, recreational

facilities, utilities and other capital improvements are

essential to the full use and enjoyment of the State Parks and

are essential to their economical administration and

operation.” Id. "Whereas Clauses," at 777.

23

53. The Florida Board was also given the authority "to

make and publish such rules and regulations as it may deem

necessary or proper for the management and use of the

parks .. . under its jurisdiction . . .." Id. Section 7, at 780.

54. In 1969, as part of the reorganization of state

agencies, the Legislature created the Division of Recreation

and Parks within the Department of Natural Resources.

Chapter 69-106, Section 25, at 543, Laws of Florida. The

Appendix: Page 47 of 83

Division assumed all of the functions of the Florida Board.

Id. at 545.

55. In 1975, the Legislature, enacted the Florida

Environmental Reorganization Act of 1975, and in part,

reiterated that the Division of Recreation and Parks would be

a Division within the Department of Natural Resources,

Chapter 75-22, Section 13, at 51, Laws of Florida, and "shall

preserve, manage, regulate and protect all parks and

recreational areas held by the state . . .." Id. Section 14, at 52.

56. In 1998, the Legislature amended Section

258.007(2), Florida Statutes (1997) as follows: ' "2) The

division ne rules SS.

120.54 and 120.536(1) to implement provisions of law

conferring duties on it shet+rekeene-peblish-streb-tetes-arte-

resttatrors asta ceert tecessa or proper tottte

premoretstiaderitetirisdtetten, and the

24

violation of any rule eofthe-tetes-ar- vegetations authorized

by this section shall be a misdemy anor and punishable

accordingly." Chapter 98-200, Section 47, at 1842, Laws of

Florida (additions are underlined; deletions are stricken

through). By enacting Chapter 98-200, in part, the Legislature

was "restating rulemaking authority for numerous state

officers, departments, divisions, boards, and other entities"

including the Division. Id. "Title," at 1828. It appears that the

Legislature's goal was greater uniformity among the various

general rule-enabling statutes.

57. The Legislature also repealed Section 258.011,

Florida Statutes (1997) "[r]ules and regulations for certain

parks," which had authorized the Division to "adopt and

enforce such rules and regulations as may be necessary for

the protection, utilization, development, occupancy, and use

of said parks, and consistent with existing laws and with the

purpose, or purposes, for which said areas were acquired,

designated, and dedicated . . .." Chapter 98-200, Section 48, at

1842. The Legislature did not change the "duties" of the

Division.

Appendix: Page 48 of 83

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58. In light of the above, the Division has several

statutory “duties” pursuant to Section 258.004(1) and (2)

Florida Statutes:

(1) It shall be the duty! of the Division of

Recreation and Parks of the Department of

,

Environmental Protection to supervise,2

25

administer,3 regulatet and control the

operation® of all public parks. . ..

(2) The Division of Recreation and Parks

shall preserve,” manage,8 regulate, and

protect? all parks and recreational areas

held by the state...

In the absence of specific statutory definitions, it can be

assumed that the words describe the Division's duties

according to their ordinary dictionary definitions. Save the

Manatee, 773 So. 2d at 599.

59. The Legislature also stated in Section 258.037,

Florida Statutes, that it is policy of the Division:

[tlo promote the state parks system for the

use, enjoyment, and benefit of the people of

Florida and visitors; toacquire typical

portions of the original domain of the state

which will be accessible to all of the

people, and of such character as to

emblemize the state's natural values:

conserve these natural values for all time:

administer the development, use and

maintenance of these lands and render such

public service in so doing, in such a manner

as to enable the people of Florida and

visitors to enjoy these values without

depleting them; to contribute materially to

the development of a strong mental, moral,

Appendix: Page 49 of 83

and physical fiber in the people; to provide

for perpetual preservation of historic sites

and memorials of statewide significance and

interpretation of their history to the

people; to contribute to the tourist appeal

of Florida.

60. The issue for resolution is whether the Legislature

intended the statutory "duties" to be "specific (or explicit)

duties" which can be implemented or interpreted by Rule

62D

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