Naturist Soc., Inc. v. Fillyaw, 90-5481
| Decision Date | 22 April 1992 |
| Docket Number | No. 90-5481,90-5481 |
| Citation | 958 F.2d 1515 |
| Parties | The NATURIST SOCIETY, INC., T.A. Wyner, Plaintiffs-Appellants, v. John FILLYAW, individually and as official Park Manager, John D. MacArthur Beach State Park, Florida, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James K. Green, Green, Eisenberg & Cohen, West Palm Beach, Fla., Terry E. Allbritton, M. David Gelfand, New Orleans, La., for plaintiffs-appellants.
Martha Corry Olive, Bryant, Miller & Olive, Tallahassee, Fla., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Florida.
ON PETITION FOR REHEARING
Before HATCHETT and DUBINA, Circuit Judges, and CLARK, Senior Circuit Judge.
In this case, we hold that the John D. MacArthur Beach State Park is a public forum and remand the case to the district court for proceedings consistent with our holding. 1
The Naturist Society, Inc. (Society), a Wisconsin corporation, advocates a "clothing optional" lifestyle and educates the public through writings, lectures, and public demonstrations. On June 29, 1988, Ms. T.A. Wyner, a Society member, contacted John Fillyaw, the park manager for the John D. MacArthur Beach State Park and advised him that the Society wished to demonstrate at the park. Wyner requested permission for Society members to approach park visitors and distribute literature, to circulate petitions for signatures, to display a two-foot by four-foot sign with the phrase "Sunnier Palms," to exhibit nude sculptures, and to appear nude or with minimal clothing. Naturist Society, Inc. v. Fillyaw, 736 F.Supp. 1103, 1106 (S.D.Fla.1990).
On July 6, 1988, Fillyaw issued a permit allowing the Society to distribute printed literature within the park. Fillyaw limited the distribution to three hours on July 9, 1988, and confined it to a small table 100 yards north of the beach entrance. The permit admonished Society members not to obstruct or impede park visitors and stated that "no banners or signs shall be permitted."
On July 9, 1988, Society members appeared at the park and distributed literature in accordance with the permit's limitations. The Society members did not carry signs or banners, did not display art work, and did not circulate petitions "because of the limitations imposed by Fillyaw." 736 F.Supp. at 1107. No member of the group appeared in the nude or in clothing more minimal than that normally found at the beach.
On July 14, 1988, Wyner wrote to Fillyaw to confirm the restrictions which he had imposed upon the demonstration. Fillyaw responded, reciting in detail the applicable Florida regulations governing bathing attire, the distribution of printed matter, and the use of displays and exhibits in state parks. He also advised Wyner that the regulations did not permit an "art exhibit," and included the regulation banning the circulation of petitions in state parks. 2 Finally, Fillyaw advised Wyner not to refer to John D. MacArthur as a "nudist" in the Society's literature, because doing so might subject the Society to a libel suit.
On March 23, 1989, the Society filed a four-count complaint against Fillyaw, both individually and in his official capacity as park manager for John D. MacArthur Beach State Park. An amended complaint filed March 30, 1989, alleged violations of the First, Ninth, and Fourteenth Amendments to the United States Constitution under 42 U.S.C. § 1983, seeking declaratory relief and damages. The amended complaint challenged the constitutionality of regulations governing attire, speech, and expressive conduct in Florida state parks.
Count I of the amended complaint challenged Florida Administrative Code Rule 16D-2.004(1)(e), the regulation governing beach attire. Count II challenged Florida Administrative Code Rule 16D-2.007(1)(a)-(h), the regulation prohibiting distribution of "printed matter" without a permit. 3
Count III challenged Florida Administrative Code Rule 16D-2.007(2) and (5), the regulation governing general conduct in the park and banning the circulation of petitions. 4 Finally, Count IV of the amended complaint challenged Florida Administrative Code Rule 16D-2.008(1) and (2)(a)-(c), alleging that the rule was unconstitutional both on its face and as applied to the Society. 5
On August 10, 1989, the district court denied the Society's motion for a preliminary injunction against enforcement of the challenged regulations. On May 4, 1990, the district court entered a final order granting Fillyaw's motion for summary judgment and denying the Society's motion for summary judgment. The district court held that the regulation governing beach attire was neither overbroad on its face nor vague as Fillyaw interpreted and applied it. 6 736 F.Supp. at 1110-12. Finding the park to be a "non-public forum," the district court concluded that the other challenged regulations constituted legitimate, content-neutral, time, place, and manner restrictions on speech and expressive conduct. The district court specifically upheld the permitting scheme governing distribution of printed matter and the complete ban on signs, banners, art exhibits, and petitions. 736 F.Supp. at 1112-18. The district court's order purported to be a final disposition on the merits of all claims for legal and equitable relief. 736 F.Supp. at 1107.
During the course of the proceedings in the district court, the state of Florida revised After the district court entered its final order, the state of Florida adopted amendments to the regulations challenged in this case. In relevant part, the amended regulations allow signs, displays, and exhibits in Florida parks, after a permit is obtained. Thus, the "new" regulations still subject signs, displays, and exhibits to a permitting procedure. Fla.Admin.Code Ann. R. 16D-2.007(1); 16D-2.008(2)(a), (b). Similarly, the amended regulations allow circulation of petitions, but only in accordance with a permitting procedure. Fla.Admin.Code Ann. R. 16D-2.007(5). The Society has not applied for a permit under the new regulations, nor has it attempted to demonstrate without a permit.
the regulations, but the revised regulations were not in effect at the time the district court ruled. Also, during the district court proceedings, Fillyaw designated a site at the beach for the exhibition of displays, signs, and the distribution of literature. It is unclear whether a permit is required for activity at the designated site. The district court did not consider these new factual matters
(1) Whether this case remains justiciable; (2) whether the district court erred in granting summary judgment for Fillyaw on the Society's claim for damages; and (3) whether the district court erred in granting summary judgment for Fillyaw on the Society's claims for injunctive relief.
Fillyaw contends that this case no longer presents a live case or controversy. He argues that the Society's claims are moot as to the original regulations because Florida has amended those regulations, and not ripe as to the amended regulations, because the Society never sought a permit under those regulations.
As the Supreme Court recently noted, Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108 L.Ed.2d 400, 411 (1990) (internal quotations and citations omitted). Fillyaw argues that the amendment of the challenged Florida park regulations after the district court entered judgment removed any personal stake the Society had in the outcome of this lawsuit. He also argues that the controversy is moot because Fillyaw granted the Society a permit to demonstrate, and the demonstration occurred.
We hold that the Society maintains a sufficient personal stake in the outcome of this lawsuit to satisfy the case or controversy requirement. First, the Society's original and amended complaints stated claims for damages on all counts. The district court found that the Society sought to approach park visitors on and off the beach to distribute literature, sought to carry a sign and display nude sculpture, and sought to circulate petitions. 736 F.Supp. at 1106. It further found that the Naturists were limited in their distribution of literature and prevented from carrying a sign, displaying nude sculpture, and circulating a petition "because of the limitations imposed by Fillyaw." 736 F.Supp. at 1107. Thus, the claim for damages saves from mootness the Society's contention that the "old" park regulations were unconstitutional as applied to it. See Memphis Light, Gas and Water Div. v. Kraft, 436 U.S. 1, 8, 98 S.Ct. 1554, 1559, 56 L.Ed.2d 30 (1978). Similarly, the Society's claim that Fillyaw suppressed its speech with the "threat" of a libel suit remains alive, because that claim also seeks compensation for a past injury.
Second, the amendments to the challenged regulations do not moot the Society's claims for injunctive relief. Where a statute is amended after the entry of judgment in the trial court, but before the Where a superseding statute leaves objectionable features of the prior law substantially undisturbed, the case is not moot. This court so held in Ciudadanos Unidos de San Juan v. Hidalgo County Grand Jury Commissioners, 622 F.2d 807, 824 (5th Cir.1980) (). The court noted that statutory amendment moots a claim only where the amendment "completely eliminate[s] the harm of which plaintiffs complained." 622 F.2d at 824. Similarly, in Alabama Hospital Ass'n v. Beasley, 702 F.2d 955 (11th Cir.198...
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