IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

JOHN CHARLES PALM,

            Appellant,

vs.                                                                   Appeal No. CRC 99-21087 CFANO

STATE OF FLORIDA,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from the judgment and sentence
entered by the Pinellas County Court
County Judge Patrick K. Caddell

Bruce G. Howie, Esq.
Attorney for Appellant

C. Marie King, Esq.
Attorney for Appellee

ORDER AND OPINION

            THIS MATTER is before the court on the defendant’s appeal from the trial court’s denial of defendant’s Motion to Declare Florida Statute 877.03 Unconstitutional as Applied.  After reviewing the briefs and record, this court affirms the trial court’s decision.

            The defendant is a member of two organizations that promote the establishment and use of clothing-optional public areas including beaches.  In 1997 and 1998, the defendant undertook a campaign of writing to agencies of Pinellas County and the State of Florida to promote the establishment of a clothing-optional beach at Ft. DeSoto Park in Pinellas County.  In response, the defendant was advised that existing park regulations and Florida law prohibit such activity and would be enforced by the Pinellas County Sheriff.  In a letter dated July 28, 1997, the Chairman of the Pinellas County Board of County Commissioners advised the defendant that the Board would not be initiating any action on the defendant’s request for a clothing-optional area in the county parks.  In subsequent correspondence to public officials in April 1998, the defendant wrote that he “knew the proper channel would be to request a public hearing on the matter and have the Commission take a vote at the conclusion,” but that he preferred not to follow that course of action.

            On Sunday July 12, 1998, as part of “Nude Recreation Week”, the defendant, along with approximately fifteen other like-minded individuals, gathered at the Fort DeSoto Park North Beach.  Approximately half of those gathered, including the defendant, were nude.  The group brought signs for posting in the area where their gathering was taking place.  Four signs read, “Florida Needs Nude Beaches”; another sign read “Tampa Area Naturists,” and gave the group’s telephone number; and another sign read, “We need a legal clothing optional beach here”.  A sign posted near the water line read, “Attention, Beyond This Point You May Encounter Nude Sunbathers.”  The defendant also brought brochures from the Tampa Area Naturists to distribute, along with copies of a Florida Attorney General opinion, a quote from the case of McGuire v. State, and copies of other Florida Supreme Court cases.  One member of the group set up a pavilion tent in the area. The group had also arranged for an airplane to fly over the beach during this time towing a banner, which read, “Florida Needs Nude Beaches.” Finally, a representative from the broadcast media had contacted the group and arranged to take video footage and interview participants, including the defendant, at the gathering.

Law enforcement and park officials were aware of the group’s presence, but elected not to approach them unless and until they received a formal complaint. Testimony from Deputy Dwayne Sommers and Deputy David Littlejohn of the Pinellas County Sheriff’s Department, who were both at the scene, indicated that members of the group were not soliciting signatures on petitions, passing out literature or making speeches.  Instead, the group was observed engaging in leisure activities such as volleyball and “unstrip poker”.

A father, mother, their 11 year-old daughter, and their daughter’s 12 year-old friend were at the Fort DeSoto Park Beach that same day.  During their beach outing, the daughter and her friend took a walk down the beach.  When they returned, they reported to the father that they had seen nude people on the beach.  The father reported the matter to a park ranger who informed the father that in order to take any action there had to be a formal citizen complaint.  The father approached the defendant’s group, observed at least two nude individuals, then made a formal complaint to the park ranger and later to a deputy sheriff.  At trial, the father testified that he was angered and upset because the nude people limited his family’s ability to enjoy themselves at the beach by imposing their standards upon him and his family.  At trial, the defendant stipulated that he was one of the naked people the father saw at the beach.

After the father made the complaint, a deputy spoke to the defendant who proclaimed that he had a constitutional right to be nude.  The deputy then gave the defendant a notice to appear on the charge of disorderly conduct in violation of Florida Statute Section 877.03.

On February 3, 1999, the defendant filed a Motion to Declare Florida Statute 877.03 Unconstitutional as Applied, which was heard by the trial court on June 23, 1999.  In its order denying defendant’s motion, entered July 30, 1999, the trial court found little dispute in the facts of the case and ruled that Section 877.03 “is facially constitutional and that a legitimate governmental interest exists with regard to the regulation of public nudity.”  The court further found that public nudity itself is not a constitutionally protected activity and that to qualify as protected speech the nudity must be “combined with some mode of expression which itself is entitled to first amendment protection.”  The court acknowledged that the defendant and his group had placed signs in the vicinity of their gathering and had arranged for a plane to tow a banner, but the court concluded “the evidence clearly shows, however, that the defendants and their associates were not engaged in any activities even remotely resembling ‘protest’ as that term is commonly understood.”  The court based this conclusion on the lack of evidence that the defendant and others “were distributing literature or educational materials” or that they were “soliciting petition signatures.”  Instead, the court found that the defendant was involved in playing volleyball, skinny dipping, and playing a card game called “unstrip poker.” 

            The court further stated that “for the sake of appellate review,” if the defendant’s minimal actions of posting signs elevated the defendant’s activities to the status of protected speech, “ there would remain a balancing test to be applied.”  The court stated this test as follows: “Does the legitimate governmental interest served justify the level of intrusion present?” The court concluded, “the very minimal restriction of requiring the defendants to wear commonly accepted beach attire while engaged in their selected activity is clearly reasonable in light of the public interest served.” 

            On October 26, 1999, the defendant proceeded to a non-jury trial during which the defendant renewed his motion and moved for a judgment of acquittal.  Both motions were denied and the defendant was found guilty of disorderly conduct.

            In his brief, the defendant argues that Section 877.03 is unconstitutional as applied due to the overbreadth of its application and further that the trial court made errors both in its findings of fact and the application of law in denying defendant’s Motion to Declare Florida Statute 877.03 Unconstitutional as Applied.

            A statute is overbroad when it restricts speech or conduct that is protected under the First Amendment.”  Shapiro v. State, 696 So.2d 1321, 1324 (Fla. 4th DCA 1997), citing State v. Greco, 479 So.2d 786 (Fla. 2d DCA 1985).  Defendant challenges the constitutionality of Florida Statute Section 877.03 as applied in the instant case, claiming that he was asserting his First Amendment right at the time of his public nudity, and is therefore, protected from prosecution.

Being nude in a public place, which was not designed for that purpose, is properly prosecuted as disorderly conduct under F.S. 877.03.  See Moffett v. State, 340 So.2d 1155 (Fla. 1977).  Nude sunbathing or associating in the nude in public are not constitutionally protected activities.  Nudity may be protected by the First Amendment as speech when it is combined with some mode of expression which itself is entitled to First Amendment protection.  South Florida Free Beaches v. City of Miami, 734 F.2d 608, 609 (11th Cir. 1984); McGuire v. State, 489 So.2d 729, 731 (Fla. 1986).  However, not all conduct containing communicative elements is necessarily protected, and even if so, the protection may be outweighed by sufficiently compelling state interests.  U.S. v O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).  Our inquiry, therefore, focuses on whether the defendant’s nudity at the public beach was combined with a mode of expression which itself is entitled to First Amendment protection.  If the answer is no, our inquiry ends.  If, however, the answer is yes, the next question is whether the protection is outweighed by sufficiently compelling state interests.

            Defendant argues that while he was naked in public he was directly involved in activities protected by the First Amendment, including freedom of speech, freedom of the press and the right to petition the government.  However, the record supports the trial court’s finding that “no evidence, whatsoever, exists that the defendants or anyone else with them were distributing literature or educational material, nor were they soliciting petition signatures.”  Television news videotape taken at the scene and testimony from the deputies at the scene clearly indicated that the defendant was playing volleyball, frolicking in the surf, and playing “unstrip poker.” Deputy Littlejohn testified that no one was soliciting signatures on petitions, passing out literature, or making speeches or discussing the benefits of nude sunbathing.  In fact, Deputy Littlejohn indicated that the defendant’s gathering “appeared to be, essentially, a group picnic.”

We find that there was an insufficient showing by the defendant of a mode of expression entitled to First Amendment protection.  Therefore, there was no constitutional infringement upon the defendant’s first amendment rights by the application and enforcement of Florida Statute Section 877.03.  The defendant was not prosecuted for placing signs on, or flying banners over the beach.  The defendant remains able to advocate for clothing-optional beaches while dressed in the proper attire.  Furthermore, we do not find that the trial judge committed any factual errors.  The trial court merely and correctly analyzed the conduct of the group as a whole, as well as the defendant’s individually, to determine whether an organized protest asserting First Amendment rights was taking place at the time.  The other factual error alleged is the trial court’s finding that defendant was not engaged in protest.  As discussed above, we agree with the trial court’s finding that defendant was not engaged in any activities resembling protest.  Finally, defendant’s argument that the trial court committed an error in the application of law is rendered moot by this opinion.  It is therefore,

ORDERED AND ADJUDGED that the trial court’s denial of the defendant’s Motion to Declare Florida Statute 877.03 Unconstitutional as Applied is affirmed.

 DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this 13th day of February, 2001.

 

__________________________
W. DOUGLAS BAIRD
Circuit Judge
Primary Appellate Judge

__________________________
NANCY MOATE LEY
Circuit Judge

___________________________
R. TIMOTHY PETERS
Circuit Judge

 

                                                           

Copies furnished to:

The Honorable Patrick K. Caddell

C. Marie King, Esq.
Assistant State Attorney

Bruce G. Howie, Esq.
Piper, Ludin, Howie & Werner, P.A.
5720 Central Avenue
St. Petersburg, FL 33707