South Florida Free Beaches v. City of Miami, Fla., Civ. A. No. 82-1071-Civ-CA.

Citation548 F. Supp. 53
Decision Date03 September 1982
Docket NumberCiv. A. No. 82-1071-Civ-CA.
PartiesSOUTH FLORIDA FREE BEACHES, etc., et al., Plaintiffs, v. CITY OF MIAMI, FLORIDA, etc., et al., Defendants.
CourtU.S. District Court — Southern District of Florida

COPYRIGHT MATERIAL OMITTED

Robert Korschun, Miami, Fla., for plaintiffs.

Richard A. Graddock, City Atty., Bruce Barkett, Asst. Atty. Gen., Ralph C. Rocheteau, III, Asst. Dade County Atty., for defendants.

MEMORANDUM OPINION

ATKINS, Chief Judge.

THIS CAUSE came before the Court on July 9, 1982 for trial on the merits, the Court having consolidated the hearing of plaintiffs' motion for a preliminary injunction with trial, pursuant to Fed.R.Civ.P. 65(a)(2). There being no material disputed issues of fact, the Court proceeded to hear oral argument. In order to explain the Court's decision, however, it is first necessary briefly to set forth the background of this case.

A. FACTS

Individual plaintiff Gary Bryant, along with other members of plaintiff South Florida Free Beaches, Inc., enjoys nude bathing and sunbathing and regularly engages in such activity on a portion of the public beach area of Virginia Key, in the City of Miami. Plaintiffs allege that the City of Miami, after having tolerated nude bathing on Virginia Key for many years, has recently expressed its intent to enforce various existing ordinances against public nudity. The City of Miami readily admits such intent; Dade County Sheriff Bobby Jones and State Attorney Janet Reno, while disclaiming any present intention to take action against plaintiffs, rest on the validity of the existing laws and reserve their right to enforce them. Plaintiffs claim that nude sunbathing is a form of expression, and that they are not only enjoying Miami's beaches to the fullest but are at the same time advocating a freer and more wholesome lifestyle. They also claim that the long history of nude bathing at Virginia Key gives rise to some constitutional right to continue to enjoy that beach without the encumbrance of clothing. Plaintiffs allege that, as a consequence of defendants' threats, they have ceased their nude activities (at least at Virginia Key) in order to avoid arrest, and thus are presently being irreparably injured. Finally, they claim that the statutes which the defendants seek to enforce are unconstitutionally vague and overbroad. The particular statutes which plaintiffs challenge are:

1. City of Miami Ordinance 37-32 (Indecent Exposure), which, in part, makes it unlawful

... for a person in any place, whether publicly or privately owned, in the city, to be found in a state of nudity or in a dress not customarily worn by his or her sex, or exposing his or her sexual organ, or committing any indecent or lewd act so as to be seen by another person from or in any place frequented by the public; provided that this section shall not apply to prohibit the exposure of such organs or the person in any place provided or set apart legally for that purpose.

2. City of Miami Ordinance 37-65 (Sunbathing in public), which makes it unlawful in the city for any person to

sunbathe in any of the public streets, sidewalks, parks and other public places, other than in normal street attire with clothing properly arranged; provided that nothing herein contained shall be construed so as to prohibit sunbathing adjacent to any public swimming pool or beach.

3. City of Miami Ordinance 37-4 (Bathing in Nude Condition):

No person shall bathe, wash or swim in any river, bay, lake, pond or pool within the city, being naked or insufficiently clothed to prevent improper exposure of his person.

4. City of Miami Ordinance 37-1, which incorporates by reference Fla.Stat. 800.03 (Exposure of Sexual Organs):

It shall be unlawful for any person to expose or exhibit his sexual organs in any public place or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. Provided, however, this section shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose. Any person convicted of a violation hereof shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.

5. Florida Statute 877.03 (Breach of the Peace):

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in § 775.082 or § 775.083.
B. DISCUSSION
1. JURISDICTION

Plaintiffs seek declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. This Court has jurisdiction over this cause pursuant to 28 U.S.C. § 1343(a)(3) and (4) and 42 U.S.C. § 1983. Venue of this cause lies in this Court and district pursuant to 28 U.S.C. § 1391(b). Plaintiffs have alleged particularized and immediate injury sufficient to give them standing to challenge the ordinances and statute in question. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). See also Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). It is also well established that an association such as South Florida Free Beaches, Inc., may bring an action on behalf of its members even absent any allegation of injury to the association itself. See Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

2. FIRST AMENDMENT IN THE RAW

Federal courts have consistently held that nude sunbathing is conduct rather than "expression" and merits little, if any, constitutional protection. Williams v. Kleppe, 539 F.2d 803 (1st Cir. 1976); United States v. Hymans, 463 F.2d 615 (10th Cir. 1972); Chapin v. Town of Southampton, 457 F.Supp. 1170 (E.D.N.Y.1978). See also, Hoffman v. Carson, 250 So.2d 891 (Fla.1971) (declining to find nudity per se or nudity in a purely commercial context to be a form of protected expression). Williams v. Kleppe, supra, upheld the Secretary of Interior's decision to ban nude sunbathing at the Cape Cod National Seashore. There, as here, the beach in question was remote and had been used for nude sunbathing for years. The Secretary found, however, that recent increases in the number of nude sunbathers had led to environmental and property damage in and around the park. The district court found that nudity, like wearing long hair, was individual conduct rather than expression and was thus not a fundamental right. Therefore, the court concluded that what little constitutional protection such behavior might merit was outweighed by the Secretary's reasons for banning it. In affirming, the First Circuit held that no free speech rights were involved. Similarly, in Hymans, supra, the Tenth Circuit upheld convictions under a regulation prohibiting "indecent conduct" in a federal park. The court held that a regulation banning "indecent conduct" was not unconstitutionally vague, and that nude sunbathing in a national park is "indecent conduct."

The best discussion of the issue is in Chapin, supra. Relying largely on Williams v. Kleppe, the Chapin court held that nude sunbathing per se is not protected "expression." The Court there also cited extensive dicta implying the same result. See, e.g., Roth v. United States, 354 U.S. 476, 512, 77 S.Ct. 1304, 1323, 1 L.Ed.2d 1498 (Douglas, J., dissenting) (1957) ("No one would suggest that the First Amendment permits nudity in public places..."); Erzoznik v. City of Jacksonville, 422 U.S. 205, 211 n. 7, 95 S.Ct. 2268, 2273 n. 7, 45 L.Ed.2d 125 (1975) (public nudity, unassociated with any form of artistic expression, is subject to indecent exposure statutes). Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970) ("the right to appear au naturel at home is relinquished when one sets foot on a public sidewalk"). All these cases indicate that mere nudity, while not obscene, is also not expressive in the sense that nudity might be in a play or work of art.

The Chapin court similarly rejected a privacy argument, noting that one loses one's claim to privacy by acting in a place both public and in plain view of the public. While the Williams v. Kleppe court felt that the combination of seclusion and a long history as a nude beach (as at Virginia Key) created some right to constitutional protection, it too found that the public interest may outweigh privacy on public lands.

Finally, the courts in both Williams v. Kleppe and Chapin rejected the argument that a gathering to engage in a pleasurable activity, such as nude sunbathing, was constitutionally protected association, such as might exist if plaintiffs gathered to discuss and promote rather than merely to engage in nude sunbathing. The plaintiffs are not, after all, prevented from advocating the concept of nude sunbathing. I conclude, therefore, that nude sunbathing per se is not a constitutionally protected activity.

3. VAGUENESS IN THE EYE OF THE BEHOLDER

Plaintiffs challenge the above-cited statutes as being so vague that a reasonable person could not conform his or her behavior to them. Vagueness is an "as applied" test: to challenge a statute for vagueness, plaintiff must show that the statute is vague as applied to him. Parker v. Levy, 417 U.S. 733, 753-58, 94 S.Ct. 2547, 2560, 41 L.Ed.2d 439 (1974). This is different from overbreadth analysis (discussed at section 4, infra), wherein a plaintiff may challenge a statute that arguably infringes on constitutionally protected activity, whether or not the statute's application to the plaintiff would so infringe. None of the statutes challenged is vague as applied to...

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