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Naturist Society Inc. v. Fillyaw
934 F.2d 1177 (11th Cir. 06/27/1991)

U.S. Court of Appeals, Eleventh Circuit

 No. 90-5481
934 F.2d 1177, 1991.C11.40976
June 27, 1991

Naturist Society Inc. v. Fillyaw, 934 F.2d 1177 (11th Cir. 06/27/1991)
U.S. Court of Appeals, Eleventh Circuit
No. 90-5481
934 F.2d 1177, 1991.C11.40976
June 27, 1991

THE NATURIST SOCIETY, INC., T.A. WYNER, PLAINTIFF-APPELLANT,
v.
JOHN FILLYAW, INDIVIDUALLY AND AS OFFICIAL PARK MANAGER, JOHN D. MACARTHUR BEACH STATE PARK, FLORIDA, DEFENDANT-APPELLEE

Appeal from the United States District Court for the Southern District of Florida. No. 89-8130-CIV-JAG; Gonzalez, Judge.

For appellant: James K. Green, GREEN, EISENBERG & COHEN, West Palm Beach, Florida, W. Trent Steele, West Palm Beach, Florida, Terry E. Allbritton, New Orleans, Louisiana, M. David Gelfand, New Orleans, Louisiana.

For appellee: Martha Corry Olive, BRYANT, MILLER & OLIVE, P.A., Tallahassee, Florida.

Hatchett, Clark and Dubina, Circuit Judges.

Author: Hatchett

     In this case we affirm the district court's ruling that the John D. MacArthur Park, a state of Florida park, is a "non-public forum," and order dismissal of all claims.

     On March 23, 1989, the appellants, the Naturist Society, Inc., and T.A. Wyner, a Society member and a Florida resident, filed a complaint in the United States District Court for the Southern District of Florida naming as defendant John Fillyaw, individually and in his official capacity as park manager for John D. MacArthur Beach State Park. An amended complaint claimed a violation of the first, ninth, and fourteenth amendments to the United States Constitution, under 42 U.S.C. § 1983, the provision authorizing suits for violations of civil rights. Jurisdiction in the district court was premised upon 28 U.S.C. § 1343, 2201, and 2202.

     The amended complaint, filed March 30, 1989, contained four counts challenging the constitutionality of regulations which govern behavior and activities in state parks in the state of Florida. Fillyaw is responsible for enforcing these regulations.

     Count I of the amended complaint alleged that Florida Administrative Code rule 16D-2.004(1)(e), which regulates beach attire, is vague and overbroad; therefore, it is unconstitutional, both on its face and as applied.

     Count II of the amended complaint challenges Florida Administrative Code rules 16D-2.007(1)(a)-(h) which prohibit the sale or distribution of "printed matter" without a permit, as unconstitutional, both facially and as applied.

     Count III of the amended complaint challenges Florida Administrative Code rules 16D-2.007(2) and (5), which regulate "moral" behavior and ban solicitations in parks, as unconstitutional on their face and as applied.

     Count IV of the amended complaint challenges Florida Administrative Code rules 16D-2.008(1), (2)(a), (b), and (c), which prohibit political speech and assembly, as unconstitutional on their face and as applied.

     Under Count I, the appellants sought a declaration of unconstitutionality, attorney's fees and costs, and such other relief as the district court deemed appropriate. Under the remaining counts, the appellants sought declaratory relief, damages, attorney's fees and costs, and other relief.

     The appellants moved for a preliminary injunction against the enforcement of the regulations, and the district court denied the motion. After discovery, both parties filed motions for summary judgment. On May 4, 1990, the district court entered a final order and judgment granting Fillyaw's motion for summary judgment, and denying appellants' motion for summary judgment.

     During the district court proceedings, the parties briefed the impact of new proposed amendments to the park regulations, which at that time had not been adopted. The district court considered only the original regulations. On appeal, at oral argument, the parties agreed that the new regulations have been adopted and are now in effect. Also at oral argument, the parties stated that no lawsuit was pending in the district court based on the new regulations; and, in fact, the appellants have not sought a permit under the new regulations.

ISSUES

     The appellants present the following issues:

     (1) Whether the district court erred in ruling that John D. MacArthur Park, a state park regularly opened to the public, is not a "public forum" under the first amendment?

     (2) Whether the district court erred in ruling that Fillyaw had a valid qualified immunity defense?

     (3) Whether Florida's prohibition of signs, banners, petitions, and exhibits in state parks is unconstitutionally overbroad?

     (4) Whether Florida's park permit system vests too much discretion in the park managers because the regulations contain unconstitutionally vague terms and fail to include required procedural protections?

     (5) Whether Florida's restrictions upon appellants' speech and expressive activities are valid time, place, or manner restrictions?

     (6) Whether the district court erred in ruling that Fillyaw's threat of a libel suit was not a suppression of speech?

     Discussion

     A. Public Forum

     As to the first and second issues, in which the district court ruled that the state of Florida's regulations limiting the public's first amendment rights on its public beach are constitutional, and that Fillyaw had a valid qualified immunity defense, we affirm the district court based upon the portions of the district court's opinion reported as Naturist Society, Inc. v. Fillyaw, 736 F.Supp. 1103, 1115-18 (S.D.Fla.1990), which discusses these issues. The eleventh amendment bars recovery against the state of Florida. Consequently, our affirmance on the first amendment and qualified immunity issues render all other issues regarding the old regulations moot.

     B. Case or Controversy

     Two matters lead us to conclude that no further action is proper in this case. First, the district court made the following ruling:

     Subsequent to the filing of this lawsuit, the plaintiffs have expressed their intention through various motions and memorandums filed herein to conduct other activities at the park. They now say they wish to display additional banners and signs containing the phrases "American Sunbathing Association" and "This is Nudist Country", and to use sound amplification to promote their message. They also intend to limit their personal solicitations of park visitors. According to Wyner, the group desires to approach persons on the beach, but alleges that they would first obtain permission from a distance of at least six feet before they would come closer and that they would promptly leave if the beachgoer so requested. Finally, the Naturists wish to display written messages on their clothing. . . .

     In any case, the court will not consider these new factual matters. They are not contained in the amended complaint filed on March 30, 1989 and the plaintiffs have not moved for leave of court to file a further amended pleading. Moreover, as to these new facts, there is no case and controversy. The Naturist's intention to engage in these activities was never expressed to Fillyaw prior [to] the date of the original proposed demonstration. Whether Fillyaw would approve or reject these activities is, therefore, sheer speculation.

     Naturist Society, Inc. v. Fillyaw, 736 F.Supp. at 1106-07.

     Secondly, the district court ruled:

     The defendant also has offered new factual allegations arising since the commencement of this case. First, at the direction of Joseph Knoll, the Director of the Division of Recreation and Parks (Department of Natural Resources), Fillyaw has designated a site at the beach for the exhibition of displays and signs and the distribution of literature. The area's measurements are fifteen feet square and it is located at one end of the parking lot, reasonably near the "Nature Center", restrooms, and a pedestrian walkway. See Exhibit A. Second, the defendant has filed with the court a set of revised regulations drafted by the state, but not yet adopted. For the same reasons stated above in regards to the plaintiffs' new allegations, this court declines to consider these facts. They are not within the pleadings. Further, the proposed revisions are not yet in effect, and no definite time has been set for their adoption. This court therefore, does not deem any of the plaintiffs' claims to be moot.

 
     Naturist Society, Inc. v. Fillyaw, 736 F.Supp. at 1107.

     The parties agree that the court has correctly stated the status of the above matters at the time this case was in the district court. As earlier noted, before this court, the parties agreed that the new regulations are now in effect.

     Appellants urge us to reach the merits of their arguments regarding the constitutionality of the old, now defunct, regulations and the new regulations. They urge us to do so even though they promptly received a permit and conducted their demonstration under the old regulations. Moreover, they urge us to rule on the new regulations in spite of the fact that they have not applied for a permit under the new regulations, and have not even suggested that they will definitely seek a new permit. They have not even asked the proper state authorities how the new regulations will be interpreted and applied. They seek guidance for the future. But, two compelling principles forbid further proceedings in this case based on the new regulations: We have nothing to review, and we have no power to proceed. The district court has not considered the new regulations; it has made no findings or conclusions regarding the new regulations; and nothing in this record indicates that a permit would not be granted to the appellants authorizing the activities which they desire under the new regulations. We hasten to add that nothing in this record indicates that any of the conduct alleged to be unconstitutional is likely to reoccur. Without doubt, if such conduct did reoccur, it would be subject to prompt redress.

     We have no power to proceed because no case or controversy exists. Before we exercise jurisdiction as to the new regulations an actual case or controversy is required by article III of the United States Constitution. Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). To show an actual case or controversy, we recently held: "Appellants' allegations fail article III's case or controversy requirement on two counts: first, the case is not ripe for judicial determination, and second, the appellants do not have standing." Association for Enforcement of Support v. Conger, 899 F.2d 1164, 1165 (11th Cir.1990). At this point, nothing keeps the appellants from carrying on the activities they desire in the park. This court and others will be open when some party is aggrieved as a result of the new regulations.

Conclusion

     Accordingly, we affirm the district court's ruling that the John D. MacArthur Park is a non-public forum and that Fillyaw enjoys qualified immunity. As to the validity of the old regulations, we find no case or controversy and remand this case to the district court with directions that it be dismissed.

     AFFIRMED and REMANDED to the DISTRICT COURT FOR DISMISSAL.

Disposition

     Affirmed and Remanded to the District Court for Dismissal.



 

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