# Petition for Writ of Certiorari — Frandsen v. Department of Environmental Protection > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1950%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 948 ## Text U.S | | Rss rere Ceurt, he , ‘ FILE® oo 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 POT PSP EO AP ee Pe Te eT att htt 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 " x if + ; Sok alte INA BA ear Mee aPC RES SMART kia eR ORE Nese ad GE OE ee eee I rT ee ENA Se me 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 “n [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1950%3A1. Public record. Not legal advice.