DeWeese v. Town of Palm Beach
| Decision Date | 30 March 1985 |
| Docket Number | No. 81-8072-Civ.,81-8072-Civ. |
| Citation | 616 F. Supp. 971 |
| Parties | Allen J. DeWEESE, Plaintiff, v. TOWN OF PALM BEACH, a Florida Municipal Corporation; Joseph Terlizzese, Chief of Police for Town of Palm Beach, Florida; George Mathews, Charles Warwick, Thomas Mettler, Walter Rathbun, Robert Grace, Caldwell Robinson, Paul Ilyinsky, individually and in their capacities as present or former members of the Town Council of the Town of Palm Beach, Florida, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
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James K. Green, Green, Eisenberg & Cohen, West Palm Beach, Fla., for plaintiff.
H. Adams Weaver, Johnston, Sasser, Randolph & Weaver, West Palm Beach, Fla., for defendants.
This case could appropriately be titled — with apologies to Neil Simon — Bareback in the Park. Essentially, it involves an assault by Plaintiff, a lawyer, upon the Town of Palm Beach's ordinance which proscribes running or jogging without a shirt, or top, except on the beach or private property. Plaintiff assails this as violating his first amendment rights, as well as on other bases.
The case has had an extremely complicated procedural background and, if one looks for an aggravating cause of court congestion, this case could be a splendid illustration.
On November 19, 1979, Allen J. DeWeese ("DeWeese"), an attorney, was stopped by a police officer and issued a Notice to Appear for Indecent Exposure — Lewdness for running on a public jogging and bicycle trail in the Town of Palm Beach (the "Town") clad in running shorts but with the upper part of his body uncovered.
DeWeese is an adult male resident of the Town of Palm Beach, a Florida municipal corporation located within the Southern District of Florida. DeWeese was verbally warned by the officer on numerous occasions, and was issued one prior written warning.
Prior to trial in state court under the first ordinance (Ordinance 21-48) as a criminal defendant, DeWeese filed a motion to dismiss on various constitutional grounds. After an evidentiary hearing, the Palm Beach County judge granted DeWeese's motion to dismiss and struck the ordinance as unconstitutional.
The Town appealed and the Appellate Court remanded so that the constitutionality of the ordinance could be considered at a further evidentiary hearing, which was held before a different Palm Beach County judge. The Town presented testimony that the first ordinance was an adjunct to other Town regulations which assisted in the preservation of the Town's tradition, heritage and quality of life pursuant to the Town's goals as set forth in its Comprehensive Plan. The state judge again declared the first ordinance unconstitutional.
The Town also appealed the second dismissal order, but voluntarily dismissed the appeal prior to argument, agreeing that the first ordinance was fatally vague and overbroad, and the Town did not have an "incentive to defend vigorously" by appealing the trial court's ruling on the ninth amendment. See DeWeese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir.1982).
The Town subsequently enacted Ordinance No. 2-81 () to amend and repeal the first ordinance.
DeWeese ("Plaintiff") brought an action in this court under 42 U.S.C. § 1983, alleging that this ordinance constitutes a deprivation of rights secured to him by the first, fifth, eighth, ninth and fourteenth amendments to the United States Constitution. The spearhead of DeWeese's Complaint is that this ordinance violates his right to dress under the ninth and fourteenth amendments, and his right to health through athletic expression. Plaintiff seeks declaratory and injunctive relief, attorney's fees and costs.2 DeWeese continues to run without a shirt in the Town on public property more than 150 feet from the beach, and alleges he fears prosecution, and asserts that this ordinance should be declared unconstitutional, or, alternatively, that Defendants should be barred from enforcing the ordinance. DeWeese named as Defendants in the instant suit the Town of Palm Beach, the chief of police, and members of the Town Council (both the members when second ordinance was adopted, as well as their successors.)
This court denied the Town's motion to dismiss for lack of subject matter jurisdiction, finding DeWeese stated "a credible threat that he might be arrested and charged", Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 1696, 44 L.Ed.2d 275 (1975), to give rise to an actual case or controversy. On Plaintiff's motion for partial summary judgment, this court found DeWeese entitled to judgment as a matter of law on the basis of collateral estoppel, and, declaring this ordinance unconstitutional, ruled that this jogger can "run barebacked in the park."
The Town appealed to the Eleventh Circuit Court of Appeals. The Court of Appeals affirmed the district court's finding of case or controversy, DeWeese v. Town of Palm Beach, 688 F.2d at 733 n. 1., but reversed and remanded the Final Judgment and the order granting summary judgment, holding the district court "abused its discretion by applying offensive collateral estoppel." Id. at 732. The Eleventh Circuit remanded with a curious comment: "to allow the Town to expend more of its resources in an attempt to prove that this most unusual statute is constitutional," and directed the district court on remand to "decide the merits of the constitutional question without giving collateral estoppel effect to the order of the state trial court." Id. at 732, 734.
This court, having heard argument on cross motions for summary judgment, finds as follows:
POLICE POWER
"In construing the validity of the ordinance in question, we must (1) assume that a valid ordinance was intended and (2) construe the ordinance to be legal, if possible to do so, and strive to so construe it as to give reasonable effect to its provisions." City of Miami v. Kayfetz, 92 So.2d 798, 801 (Fla.1957). Governments are given broad discretion in their internal affairs, "there being a peculiar propriety in permitting the inhabitants of a City through its proper officials to determine what rules are necessary for their own local government". Id. Therefore, in most instances, courts must refrain from interfering with the daily operation of a municipality to resolve conflicts which do not directly and sharply implicate constitutional values. See Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968).
"Municipalities may enact laws in furtherance of the public health, safety and welfare, to the extent authorized by the states," and where a local government has the power to enact an ordinance, the legislative decision is presumptively constitutional. Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 673 (11th Cir. 1984); rev'd in part on other grounds, 742 F.2d 590 (11th Cir.1984).
In considering whether or not the ordinance is reasonable, the test is not whether the decision of the Town Council appears unwise, but whether it is rationally related to the public health, morals, safety or general welfare and promotes a legitimate municipal objective. Kayfetz, 92 So.2d at 801. Plaintiff bears the burden to demonstrate that the challenged ordinance is so irrational that it serves no legitimate municipal interest. Id. at 802.
On September 25, 1979, the Town of Palm Beach, in compliance with chapter 163 of the Florida Statutes, enacted a Comprehensive Plan with its stated objectives as follows:
PALM BEACH, FLA., CODE § 2-81 (1979). The Town's stated interests are within the scope of authority delegated to the Town by the state and, therefore, the Town, under its police power, has the authority to enact reasonable dress regulations.
The first section of the ordinance in question, Section 3, requires a person engaged in recreational activities on public property not otherwise excluded to "have the upper part of his or her body covered in clothing appropriate to and characteristic of the recreational activity being undertaken." PALM BEACH, FLA., CODE § 2-81 (1979). Section 3(c) specifically includes jogging and running within this category of recreational activities. Section 2 excludes from regulation not only private property, but also public bathing beaches and the immediate vicinity of public bathing beaches. Section 4 defines "beach," "vicinity of public bathing beaches" and the phrase, "upper part of his or her body covered." Therefore, these words and phrases have a clear meaning when read in the context of the entire ordinance.
DeWeese has not met his burden to overcome the presumption that this ordinance is reasonable, nor does this court find any basis in the record...
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U. OF UTAH STUDENTS AGAINST APARTHEID v. Peterson
... ... the shanties to jogging without wearing a shirt, discussed in DeWeese v. Town of Palm Beach, 616 F.Supp. 971 (S.D.Fla. 1985). In DeWeese, the ... ...
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