01-000527RX Marvin Vaun Frandsen vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Wednesday, September 26, 2001.

Summary: Rule 62D-2.014(18) is a valid exercise of delegated legislative authority. This Rule is not vague, establishes standards for Division decisions, and does not vest unbridled discretion in the Division.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN VAUN FRANDSEN , )

)

Petitioner , )

)

vs. ) Case No. 01- 0527RX

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondent. )

________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Charles A. Stampelos, held a final hearing in the above-styled

case on May 30 and 31, 2001, in Tallahassee, Florida.

APPEARANCES

For Petitioner : Marvin Vaun Frandsen, pro se

4467 County Road

Melbourne, Florida 32934

For Respondent : Suzanne B. Brantley, Esquire

Mara B. Tickett, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

At issue in this proceeding is whether the Department of

Environmental Protection (Department), Division of Recreation

and Parks' (Division) existing Rule 62D-2.014(18), Florida

Administrative Code (Rule), is an invalid exercise of delegated

legislative authority. Specifically, the issues are whether the

Division has exceeded its grant of rulemaking authority and

whether the Rule is vague, fails to establish standards for

Division decisions, and vests unbridled discretion in the

Division.

PRELIMINARY STATEMENT

On February 5, 2001, Petitioner, Marvin Vaun Frandsen

(Frandsen) filed a "Petition to Declare State Park "Free Speech"

Rule Invalid." Frandsen alleged that Rule 62D-2.014(18) is an

invalid exercise of delegated authority, that certain agency

statements are rules and violate Section 120.54(1)(a), Florida

Statutes (2000), that the Division's application of the Rule "to

restrict, limit or forbid free speech activities in state parks"

is invalid, and that the Rule is an unconstitutional prior

restraint. (All citations to the Florida Statutes are to the

2000 version unless otherwise indicated.)

On May 22, 2001, the Department filed a Motion in Limine,

and in essence, requested an order limiting Frandsen from

introducing evidence regarding any "as applied" challenge to the

validity of the Rule which appeared in his Petition and further

to limit Frandsen's evidence regarding particular restrictions

placed on Frandsen and others and activities in state parks

involving nudity and the restrictions placed on nudity and the

Division's policy on nudity. In part, the Department suggested

that Frandsen must file a separate petition, and necessarily

with the Department, pursuant to Sections 120.569 and 120.57,

Florida Statutes, in order to challenge the validity of specific

agency statements (which may include agency action related to

Frandsen) which may have been applied to him and which may have

affected his substantial interests.

Frandsen filed a Response and also filed a Petition in Case

No. 01-2067RU, challenging the legality of various agency

statements "on their face and as applied" to him. The latter

Petition was filed in response to the Department's Motion. The

second Petition incorporated some of what was alleged in this

rule challenge, with additional allegations pertaining to his

"as applied" challenge. However, the second Petition was filed

with the Division of Administrative Hearings in the context of a

non-rule policy challenge, notwithstanding reference to Sections

120.569 and 120.57, Florida Statutes. The Petition was not

filed with the Department. See Hasper v. Department of

Administration , 459 So. 2d 383 (Fla. 1st DCA 1984).

The parties discussed their respective positions during a

telephone hearing on May 25, 2001, and Frandsen orally withdrew

his Petition filed in Case No. 01-2067RU and the Division of

Administrative Hearing's file was closed.

The Motion in Limine was otherwise denied without

prejudice. See Order, May 29, 2001.

Consistent with Frandsen's withdrawal of his Petition in

Case No. 01-2067RU, on May 29, 2001, Frandsen filed a "Motion to

Amend Petition to Narrow Scope of Claims," to exclude his

challenge to agency statements as rules pursuant to Section

120.54(4)(a), Florida Statutes. The Department did not object.

The Motion was granted and Frandsen's challenge to the agency

statements as rules referenced in his Petition were excluded.

See Order, May 29, 2001.

At hearing, Frandsen called eight witnesses: himself; Toni

Anne Wyner; John C. Palm; Perry J. Smith, Park Manager IV of the

Division of Recreation and Parks, Department of Environmental

Protection; Michael K. Murphy, District 4 Bureau Chief of the

Division of Recreation and Parks, Department of Environmental

Protection; John Baust, Bureau Chief of Operational Services of

the Division of Recreation and Parks, Department of

Environmental Protection; Fran Mainella, Director of the

Division of Recreation and Parks, Department of Environmental

Protection; and Eric Miller, Bureau Chief of Park Patrol of the

Division of Law Enforcement, Department of Environmental

Protection.

The Department called Perry J. Smith, Michael K. Murphy,

John Baust, Fran Mainella, and Eric Miller.

Frandsen offered 63 exhibits, all of which were admitted.

The Department's Exhibits 1 through 4 were also admitted into

evidence.

The Transcript was filed June 28, 2001. The parties

stipulated to extend the time to file proposed final orders

until August 27, 2001. Frandsen filed a Closing Argument and a

Memorandum of Law, and each party filed a proposed final order

which have been considered in the preparation of this Final

Order. Frandsen also filed a Motion for Reimbursement of Costs

should he prevail, which is denied based upon the disposition of

this proceeding.

FINDINGS OF FACT

Frandsen

1. Frandsen is a citizen of the state of Florida who is

interested in free speech activities in state parks that advance

the cause of naturist activities, including recreation.

Frandsen is a physicist and works for the United States Air

Force, essentially as a defense scientist.

2. Frandsen's original challenge in this proceeding was

directed, in part, to the Division's application of the Rule and

the validity of agency statements as rules and as applied to

him. Frandsen has deleted these from his challenge. This Final

Order does not decide whether the Division has properly applied

the Rule to Frandsen nor whether any agency statements are

invalid, nor whether the Rule is constitutionally infirm either

on its face or as applied.

3. Frandsen's cause, with respect to the state park

system, is to see limited, designated areas within state parks

open to "clothing optional recreation, particularly beachfront

recreation, where someone can sunbathe," "socialize," and "swim

nude in the ocean and on the beaches as the human race has for

eternity."

4. Frandsen is aware of the anti-nudity rule, Rule 62D-

2.014(7)(b), but is challenging the right to be able to advocate

changing the rule which prohibits nudity. For Frandsen, "[t]he

issue [here] is [his] ability to exercise free speech to

communicate with the public to advocate for [his] cause," in a

state park. Conversely, "[t]his action does not deal with the

issue of whether [Frandsen has] a constitutional right to

incorporate nudity into a communication." His main concern is

the absence of standards in Rule 62D-2.014(18) to channel the

Division's exercise of discretion relating to time, place, and

manner restrictions placed on free speech activities and also

the threat of arrest if the restrictions are not complied with.

5. The Department stipulated that Frandsen has standing to

challenge Rule 62D-2.014(18) as an invalid exercise of delegated

legislative authority.

Department and Division

6. The Department is an agency of the state of Florida,

which manages and operates state parks under its jurisdiction,

pursuant to Chapter 258, Part I, Florida Statutes, through its

Division of Recreation and Parks.

7. The Division has the duty "to supervise, administer,

regulate, and control the operation of all public parks . . .."

Section 258.004(1), Florida Statutes. Additionally, the

Division "shall preserve, manage, regulate, and protect all

parks and recreational areas held by the state . . .." Section

258.004(2), Florida Statutes.

8. It is the policy of the Division "[t ]o promote the

state park system for the use, enjoyment, and benefit of the

people of Florida and visitors . . . administer the development,

use and maintenance of these lands and render such public

service in so doing, in such a manner as to enable the people of

Florida and visitors to enjoy these values without depleting

them . . .." Section 258.037, Florida Statutes.

9. "The division has authority to adopt rules pursuant to

ss. 120.536(1) and 120.54 to implement provisions of law

conferring duties on it, and the violation of any rule

authorized by this section shall be a misdemeanor and punishable

accordingly." Section 258.007(2), Florida Statutes.

State Parks

10. The Division manages 155 state parks, which comprise

over a half a million acres. The term "state parks" is generic

and includes historic sites, beach areas, river parks, parks

with swimming pools, geological sites, archeological sites, and

recreation areas. The parks are very diverse and offer

different opportunities for visitors. The parks can range in

size from just a few acres to over 25,000 acres.

11. Florida's state park system is the fourth largest in

the nation. Over 16 million people visited the parks last year,

which was an increase of 13 1/2 percent from the previous year.

12. The state park system is divided into five districts,

each of which includes 20 to 30 parks. The Division employs

over 1,000 full-time employees and approximately 300 to 500

part-time, OPS help.

13. Each district is under the supervision of a district

bureau chief who is responsible for that district's employees,

visitors, volunteers, and parks.

14. Individual parks or groups of parks are under the

direct supervision of a park manager. Honeymoon Island State

Park, which is located on the west coast of Florida in Pinellas

County, is one of six main parks all managed by the same park

manager. It is part of a GEO (Geographically Efficient

Operation) park, which includes 15 properties, both submerged

lands and uplands, and extends through 3 counties.

15. Not every park is staffed with Division personnel at

all times. For example, District 4 has approximately 25 parks

with 17 park managers. In parks which are not staffed, the

telephone numbers of the park manager and assistant manager are

posted within the park at various locations including near the

restrooms, pay phones, concessions, or camp grounds.

16. Various activities are enjoyed in state parks

including: swimming, camping, hiking, boating, biking, horseback

riding, wildlife viewing, snorkeling, guided tours, and

picnicking. Each park offers a different number and combination

of these activities. The Division's primary mission is to

enable the public to enjoy outdoor-based resource recreation.

17. Through its rules, the Division regulates many

activities in state parks to ensure the safety of visitors and

to protect park resources, including the speed of vehicles,

parking, boating, fishing, the consumption of alcoholic

beverages, bathing and swimming, domestic animals, hunting,

merchandising, aircraft, and commercial photography. See Rule

62D-2.014(4), (6), (7), (8), (9), (10), (12), (13), (14), (15),

and (17), Florida Administrative Code.

The Rule

18. Rule 62D-2.014(18), Florida Administrative Code,

provides:

Free Speech Activities. Free speech

activities include, but are not limited to,

public speaking, performances, distribution

of printed material, displays, and signs.

Free speech activities do not include

activities for commercial purposes. Any

persons engaging in such activities can

determine what restrictions as to time,

place, and manner may apply, in any

particular situation, by contacting the park

manager. Free speech activities shall not

create a safety hazard or interfere with any

other park visitor's enjoyment of the park's

natural or cultural experience. The park

manager will determine the suitability of

place and manner based on park visitor use

patterns and other visitor activities

occurring at the time of the free speech

activity.

19. Rule 62D-2.014 pertains to "activities and

recreation." Section 258.007(2), Florida Statutes, is cited as

the specific authority for Rule 62D-2.014, including Subsection

(18). Rule 62D-2.014, including Subsection (18), implements

Sections 258.004, 258.007(1)-(3), 258.014, 258.016, 258.017, and

258.037, Florida Statutes.

20. The Rule was adopted in 1996 to inform the public that

free speech activities are welcome in state parks. It sets

broad guidelines and standards for park managers to ensure that

the public's First Amendment rights are respected and not

infringed. The Division felt the need for a rule "to put park

staff on notice that [First Amendment activity] is okay and it

is allowable and it is acceptable." No permits have been issued

for free speech activities since the mid-1990's as a result of a

federal court order. See The Naturist Society, Inc. v. Fillyaw ,

858 F. Supp. 1559 (S.D. 1994).

21. The Rule was not intended to be all encompassing

because of the diversity of the parks. Most activities in the

parks include some form of free speech activity. The term

"include, but are not limited to" means anything that is covered

by the First Amendment, whether it be oral, written, or symbolic

conduct. The Rule applies to even a single individual wishing

to engage in free speech activities as defined by the Rule,

including, but not limited to the activity of "displays" and

"signs."

22. The Rule states that free speech activities shall not

interfere with any other park visitor's enjoyment of the park's

natural or cultural experience. This means that people are free

to conduct any activity they choose so long as the manner in

which they do it does not infringe on other park visitors'

purpose for coming to the park. For example, if an area of a

particular park were known for bird watching, it would be

inappropriate for someone to walk through that area playing loud

music or shouting. The Rule contemplates that the Division will

be diligent in protecting visitor enjoyment and safety.

23. The Rule states that free speech activities shall not

create a "safety hazard." Safety hazards vary depending on the

activity, area, and park involved. They can range from the

dangers inherent to a large assembly of people, which would be

the same in any park, to the dangers of holding a particular

activity in a specific area of a specific park. The types of

safety hazards a manager must consider will vary significantly

with the type of activity and the park in which it takes place.

24. Park managers also consider "visitor use patterns"

when determining the suitability of the time, place, and manner

of a particular activity. Visitor use patterns are the

different activities, which typically occur in a particular

park. They vary by time of the day and the season and are

therefore different day-by-day and park-by-park. For example, a

visitor may tour the Gamble Plantation as a historic site, but

not swim. At Honeymoon Park, people use the beach and swim.

Moreover, during the summer, the use patterns at Wakulla Springs

State Park for swimming are heavy, whereas the pattern for

swimming decreases rapidly during the winter. Different safety

concerns arise given the nature and use(s) of each park.

25. A person or group wishing to engage in free speech

activities are not always able to access a park manager to

determine applicable time, place, and manner restrictions

because the park manager may not be on duty during all hours and

days when the park is open.

26. The Division does not decide in advance and publicly

post or otherwise publicly provide generic time, place, and

manner restrictions.

27. Beyond the Rule, there are no written documents,

handbooks, guidelines, and policies of general application to

provide guidance to the Division park managers to determine what

time, place, and manner restrictions may be applied.

28. Each determination of time, place, and manner

restrictions by the Division, including the resources, which may

be needed to be expended to accommodate a free speech activity,

is made on a case-by-case basis based upon the criteria in the

Rule.

29. Because of the number of parks, their diversity,

staffing issues, and the varying attendance on particular days

or in particular seasons, it would be impracticable to develop a

set of standard time, place, and manner restrictions for every

possible activity, which may occur in every park.

30. The Rule contemplates that a park manager may consult

with other personnel with the Department and the Division

regarding the application of the Rule. Park managers have

consulted with legal counsel prior to responding to a request

or, in some cases, request legal counsel to respond directly to

the requesting person. This procedure is the norm regarding

requests for "clothing optional demonstration[s]." The

Department's "Office of General Counsel is consulted on all

nudity issues that may involve free speech to ensure compliance

with all current laws" and responses are given on a case-by-case

basis in light of counsel's interpretation of the Rule, reached

in conjunction with First Amendment case law.

31. The Rule does not require contact with a park manager

prior to engaging in a free speech activity.

32. The Rule contemplates that the public may contact a

park manager to ensure that a planned activity will not create a

safety hazard or conflict with other planned activities. For

example, weddings are welcomed in the state parks, although

prior notification is not required. But, notification can be

helpful to the park manager to determine the number of people

involved and the time of day to ensure, for example, that

parking is available.

33. Although the Rule does not state a time in which park

managers must respond to a request for any applicable time,

place, and manner restrictions, the Rule contemplates that these

decisions will be made within a reasonable time. The Division

expects their park managers to respond in an expeditious manner.

The Division's typical practice is to respond within a 2 or 3

week period. There have been exceptions to this expectation.

The level of complexity of the inquiry may lengthen the time to

respond.

34. Generally, any person dissatisfied with a response

from the park manager may contact various levels of

responsibility throughout the Division and Department. This

process is not referred to as "an official administrative

appeal." Nevertheless, any decision regarding an interpretation

of a park rule or a response to an inquiry results in the

formulation of agency action. Any person substantially affected

by the agency action should be given a point of entry to

challenge the agency action pursuant to and consistent with the

procedural requirements of the APA. See Department's Proposed

Final Order, page 10, paragraph 46.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Section 120.56, Florida Statutes.

36. Frandsen alleges that Rule 62D-2.014(18), is an

invalid exercise of legislative authority because (1) the

Division has exceeded its grant of rulemaking authority under

Section 120.52(8)(b), Florida Statutes, and (2) the Rule is

vague, fails to establish adequate standards for Division

decisions, and vests unbridled discretion in the Division under

Section 120.52(8)(d), Florida Statues.

37. Frandsen has the burden of proving the invalidity of

the Rule 62D-2.014(18). St. Johns River Water Management

District v. Consolidated-Tomoka Land Co. , 717 So. 2d 72, 76-77

(Fla. 1st DCA 1998)( Tomoka ).

The standards for determining whether an existing

Rule implements or interprets a specific statutory

power and duty.

38. Material here, an "invalid exercise of delegated

legislative authority" is:

[ an] action which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

(b ) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.; or

(d ) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency.

Section 120.52(8)(b)(d), Florida Statutes.

39. The "flush left," language of Section 120.52(8),

Florida Statutes, provides the following standards in the

closing paragraph:

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

the authority to adopt a rule only because

it is reasonably related to the purpose of

the enabling legislation and is not

arbitrary and capricious or is within the

agency's class of powers or duties, nor

shall an agency have the authority to

implement statutory provisions setting forth

general legislative intent or policy.

Statutory language granting rulemaking

authority or generally describing the powers

and functions of an agency shall be

construed to extend no further than

implementing or interpreting the specific

powers and duties conferred by the same

statute.

40. This language "provides general standards to be used

in determining the validity of a rule in all cases." Southwest

Florida Water Management District v. Save the Manatee Club,

Inc. , 773 So. 2d 594, 597 (Fla. 1st DCA 2000) ( Save of the

Manatee ). This language also appears verbatim in Section

120.536(1), Florida Statutes.

41. Some digression in the legal discussion pertinent to

this case is necessary in order to place the "flush left"

language in context, which has been recently explained by Judge

Padovano, writing for the court, in Save the Manatee , in light

of 1999 amendments to the "flush left" language.

42. "In 1996, the Legislature significantly revised the

Administrative Procedure Act (APA), Chapter 120, Florida

Statutes, to clarify definitions and exceptions and to simplify

its procedures. Notable among the 1996 amendments to the APA

are amendments creating a statutory standard for rulemaking

(s.120.536(1), F.S.) and inclusion of this standard [the flush

left language] in the definition of an invalid exercise of

delegated legislative authority (s.120.52(8), F.S.)." See House

of Representatives as Further Revised by the Committee on

Governmental Rules and Regulations Final Analysis, CS/HB 107

(Chapter 99-379, Laws of Florida), June 30, 1999, Storage Name:

h0107z.grr, page 2.

43. The 1996 amendments included, in material part, the

"flush left" language, and provided that, "[a ]n agency may adopt

only rules that implement, interpret, or make specific the

particular powers and duties granted by the enabling statute."

Section 120.52(8), Florida Statutes (Supp. 1996). See also Save

of Manatee , 773 So. 2d at 598. This standard was discussed in

several cases, including Tomoka .

44. In Tomoka , land owners challenged proposed rules of

the water management district that would have added two

hydrologic basins to five others within the district and would

have imposed four new development standards within these basins.

Administrative Law Judge Donald R. Alexander found the proposed

rules to be supported by competent substantial evidence, but

concluded that the statutory authority on which they were based

was ". . . merely a general, nonspecific description of the

agency's duties." Judge Alexander determined that the enabling

statute must "detail" the powers and duties that are the subject

of the rules and, since it did not, the rules were not within

the "particular powers and duties" granted by the enabling

statute. Consolidated-Tomoka Land Company, et al. v. St. Johns

River Water Management District, et al ., DOAH Case Nos. 97-

0870RP and 97-0871RP, Final Order, June 27, 1997. As a result,

the proposed rules were invalidated and the decision was

appealed by the water management district. The court reversed.

The court determined that the proper test to determine whether a

rule is a valid exercise of delegated authority pursuant to the

1996 version of the APA:

is a functional test based on the nature of

the power or duty at issue and not the level

of detail in the language of the applicable

statute. The question is whether the rule

falls within the range of powers the

Legislature has granted to the agency for

the purpose of enforcing or implementing the

statutes within its jurisdiction. A rule is

a valid exercise of delegated legislative

authority if it regulates a matter directly

within the class of powers and duties

identified in the statute to be implemented.

This approach meets the legislative goal of

restricting the agencies' authority to

promulgate rules, and, at the same time,

ensures that the agencies will have the

authority to perform the essential functions

assigned to them by the Legislature.

The class of powers and duties

delegated to an agency could be defined

broadly or specifically depending on the

Legislature's objective. For example, a

statute authorizing rules pertaining to the

general operating functions of an agency

might be broadly stated to enable the agency

to promulgate a variety of rules, all of

which are within the general class. In

contrast, a statute authorizing a regulatory

rule might be narrowly tailored to restrict

the agency's authority within a precise

range. These decisions are ultimately

within the province of the Legislature.

Tomoka , 717 So. 2d at 80-81.

45. In 1999, the Legislature considered HB 107 and SB 206

that were identical. In material part, HB 107 was written to

amend the "flush left" language in Sections 120.52(8) and

120.536(1), Florida Statutes (Supp. 1996), striking the

adjective "particular" and replacing it with "detailed." See

House of Representatives Committee on Water and Resource

Management Bill Research & Economic Impact Statement, HB 107,

Dec. 21, 1998, Storage Name: h0107.wrm, page 7. However, in the

enacted version of Committee Substitute for House Bill Number

107, the Legislature dropped "detailed" and "particular," and

retained "specific" as the adjective before "powers and duties

granted by the enabling statute."

46. In 1999, it was the express "intent of the Legislature

that modifications contained in [the 1996 amendments to Sections

120.52(8) and 120.536, Florida Statutes, including the amended

"flush left" language] which apply to rulemaking are to clarify

the limited authority of agencies to adopt rules in accordance

with chapter 96-159, Laws of Florida, and are intended to reject

the class of powers and duties analysis." Chapter 99-378,

Section 1, at 2280-2281, Laws of Florida (emphasis added). "It

[was] not the intent of the Legislature to reverse the result of

any specific judicial decision," i.e. , Tomoka . Id.

47. Thus, in 1999, the Legislature rejected the "judicial

interpretation [in Tomoka ] of this standard which created a

functional test to determine whether a challenged agency rule is

directly within the class of powers and duties identified in the

statute to be implemented." House of Representatives Final

Analysis, June 30, 1999, page 5 (citation omitted).

48. "The new law [enacted in 1999] gives the agencies

authority to 'implement or interpret' specific powers and duties

contained in the enabling statute." Save of the Manatee , 773

So. 2d at 599. The court noted, however, that:

[a] rule th at is used to implement or

carry out a directive will necessarily

contain language more detailed than that

used in the directive itself. Likewise, the

use of the term 'interpret' suggests that a

rule will be more detailed than the

applicable enabling statute. There would be

no need for interpretation if all of the

details were contained in the statute

itself.

It follows that the authority for an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the

grant of authority is specific enough .

Either the enabling statute authorizes the

rule at issue or it does not. As the

Florida Chamber of Commerce said in its

brief, this question is one that must be

determined on a case-by-case basis.

Id. (emphasis in original).

49. In summary, the Legislature developed a standard for

agencies to follow when promulgating rules. But, an agency does

not have the authority to adopt a rule merely because the rule

"is within the agency's class of powers and duties" because

"[an] administrative rule must certainly fall within the class

of powers and duties delegated to the agency, but that alone

will not make a rule a valid exercise of legislative power."

Save the Manatee , 772 So. 2d at 598-599. Further, the court

believes the 1999 "flush left" language is unambiguous, thus

justifying resort solely to a dictionary to define key terms,

e.g. , the term "specific." Id. at 599. Importantly, the court

held that "the authority to adopt an administrative rule must be

based on an explicit power or duty identified in the enabling

statute ." Id. (emphasis added). This explanation of the

standard was re-affirmed in State of Florida, Board of Trustees

of the Internal Improvement Trust Fund v. Day Cruise

Association, Inc. , 26 Fla. L. Weekly D2240a (Fla. 1st DCA

Sept. 13, 2001).

50. Stating the general standard is one thing; it is quite

another to apply the standard on a case-by-case basis, as here.

The duties and powers of the Division.

51. In 1949, the Legislature enacted Chapter 25353, at

777, Laws of Florida. This Chapter created the Florida Board of

Parks and Historic Memorials (Florida Board) and provided in

part that "[i ]t shall be the duty of the board to supervise,

administer, regulate and control . . . [t]he operation of all

public parks . . .." Id. Section 6, at 779. The powers of the

Florida Board were separately stated. Id. Section 7, at 780.

52. The Legislature also provided several "whereas"

clauses, including the statements that "WHEREAS, the

conservation, development and protection of forests and forest

lands is so divergent from the purpose for which the Florida

Park service was created, which purpose was to conserve the

scenery and the natural and historic objects and the wild life

therein and to provide for the enjoyment of the same in such

manner and by such means as will leave them unimpaired for the

enjoyment of future generations, as to require, in the best

interest of the people, that the activities be under the

administration of separate agencies, and . . . WHEREAS, certain

buildings, roads, trails, recreational facilities, utilities and

other capital improvements are essential to the full use and

enjoyment of the State Parks and are essential to their

economical administration and operation." Id. "Whereas

Clauses," at 777.

53. The Florida Board was also given the authority "to

make and publish such rules and regulations as it may deem

necessary or proper for the management and use of the

parks . . . under its jurisdic tion . . .." Id. Section 7, at

780.

54. In 1969, as part of the reorganization of state

agencies, the Legislature created the Division of Recreation and

Parks within the Department of Natural Resources. Chapter 69-

106, Section 25, at 543, Laws of Florida. The Division assumed

all of the functions of the Florida Board. Id. at 545.

55. In 1975, the Legislature, enacted the Florida

Environmental Reorganization Act of 1975, and in part,

reiterated that the Division of Recreation and Parks would be a

Division within the Department of Natural Resources, Chapter 75-

22, Section 13, at 51, Laws of Florida, and "shall preserve,

manage, regulate and protect all parks and recreational areas

held by the state . . .." Id. Section 14, at 52.

56. In 1998, the Legislature amended Section 258.007(2),

Florida Statutes (1997) as follows: "(2) The division has the

authority to adopt rules pursuant to ss. 120.54 and 120.536(1)

to implement provisions of law conferring duties on it shall

make and publish such rules and regulations as it may deem

necessary or proper for the management and use of the parks,

monuments, and memorials under its jurisdiction , and the

violation of any rule of the rules and regulations authorized by

this section shall be a misdemeanor and punishable accordingly."

Chapter 98-200, Section 47, at 1842, Laws of Florida (additions

are underlined; deletions are stricken through). By enacting

Chapter 98-200, in part, the Legislature was "restating

rulemaking authority for numerous state officers, departments,

divisions, boards, and other entities" including the Division.

Id. "Title," at 1828. It appears that the Legislature's goal

was greater uniformity among the various general rule-enabling

statutes.

57. The Legislature also repealed Section 258.011, Florida

Statutes (1997) "[r ]ules and regulations for certain parks,"

which had authorized the Division to "adopt and enforce such

rules and regulations as may be necessary for the protection,

utilization, development, occupancy, and use of said parks, and

consistent with existing laws and with the purpose, or purposes,

for which said areas were acquired, designated, and

dedicated . . .." Chapter 98-200, Section 48, at 1842. The

Legislature did not change the "duties" of the Division.

58. In light of the above, the Division has several

statutory "duties" pursuant to Section 258.004(1) and (2),

Florida Statutes:

(1 ) It shall be the duty 1 of the Division of

Recreation and Parks of the Department of

Environmental Protection to supervise, 2

administer, 3 regulate, 4 and control 5 the

operation 6 of all public parks. . . .

(2 ) The Division of Recreation and Parks

shall preserve, 7 manage, 8 regulate, and

protect 9 all parks and recreational areas

held by the state . . .

In the absence of specific statutory definitions, it can be

assumed that the words describe the Division's duties according

to their ordinary dictionary definitions. Save the Manatee , 773

So. 2d at 599.

59. The Legislature also stated in Section 258.037,

Florida Statutes, that it is policy of the Division:

[t ]o promote the state parks system for the

use, enjoyment, and benefit of the people of

Florida and visitors; to acquire typical

portions of the original domain of the state

which will be accessible to all of the

people, and of such character as to

emblemize the state's natural values;

conserve these natural values for all time;

administer the development, use and

maintenance of these lands and render such

public service in so doing, in such a manner

as to enable the people of Florida and

visitors to enjoy these values without

depleting them; to contribute materially to

the development of a strong mental, moral,

and physical fiber in the people; to provide

for perpetual preservation of historic sites

and memorials of statewide significance and

interpretation of their history to the

people; to contribute to the tourist appeal

of Florida.

60. The issue for resolution is whether the Legislature

intended the statutory "duties" to be "specific (or explicit)

duties" which can be implemented or interpreted by Rule 62D-

2.014(18), and in particular, whether the Division, in

promulgating Rule 62D-2.014(18), is implementing or interpreting

"specific (or explicit) duties" in accordance with the "flush

left" language of Sections 120.52(8) and 120.536(1), Florida

Statutes. See Save the Manatee , 773 So. 2d at 599.

Rule 62D-2.014(18) does not exceed the Division's grant of

rulemaking authority.

61. The Legislature granted the Division the general

authority to adopt rules pursuant to Section 258.007(2), Florida

Statutes, and "to implement provisions of law conferring duties

on it," i.e. , Section 258.004, Florida Statutes. (emphasis

added). Pursuant to the "flush left" language of Section

120.52(8), Florida Statutes, this grant of rulemaking authority

is necessary and has been satisfied. But, does Rule 62D-

2.014(18) implement or interpret a specific or explicit

statutory duty or power?

62. For over 50 years the Legislature has delegated to the

Division, and its predecessor, the specific duties to supervise

the operation of all public parks, to administer the operation

of all public parks, to regulate the operation of all public

parks, and to control the operation of all public parks. The

Division also has the duty to "preserve, manage, regulate, and

protect all parks and recreational areas held by the state."

63. Public parks and recreation areas include more than

picturesque fields, rivers and streams, fauna, and other natural

beauty; they also include benches and tables, restrooms,

roadways and paths, and other physical attributes.

64. Public parks and recreation areas are frequented by

people who visit parks for a myriad of reasons. Over 16 million

people visited Florida State parks last year. They stroll about

viewing nature at its best; they camp; they boat; they swim;

they cook, either alone or in a group; they use restrooms and

other facilities. Unfortunately, there are also opportunities

for the public to litter, pollute the air somewhat due to

vehicle traffic, or to offend, or cause physical harm, to their

fellow visitor in some unexpected or perhaps intentional manner

or way. While the public has the right to visit a public park,

this right is not absolute.

65. Park areas can be dangerous. The park may not be able

to accommodate all of the people who may wish to use the park at

the same time. Some activities of the public may be liked by

some and abhorred by others. There must be some authority to

exercise control over the physical property of the park and

public activities, which transpire within the park. The public

expects that public parks will have reasonable rules, regulating

the time, place, and manner in which the public can use the park

and this includes free speech activities. It is not

unreasonable to assume that the Legislature understood this when

the Division was granted the specific duties described herein.

66. The enumerated statutory duties, by definition, see

endnotes 2-10, overlap to some degree, but each has its own

special meaning. When viewed collectively, the Division has the

specific statutory duty to maintain the physical property in and

of the parks in an acceptable manner so that the public can

enjoy these public areas and also to supervise, regulate, and

control human activity in public parks, as these terms relate to

the operation of the public parks. The supervision,

administration, regulation, and control of the operation of the

parks include the duty to place reasonable time, place, and

manner restrictions on public activity, which includes free

speech activity. This is the very essence for the existence of

the Division. The Legislature specifically designated the

Division, as the responsible state agency, to exercise these

functions and to exercise its discretion in a meaningful and

fair way.

67. The situation here is different from the circumstances

attending the Division of Pari-Mutuel Wagering's attempt to

promulgate a rule authorizing the Division of Pari-Mutuel

Wagering to conduct warrantless searches of persons and places

within pari-mutuel wagering facilities. See Department of

Business and Professional Regulation v. Calder Race Course,

Inc. , 724 So. 2d 100 (Fla. 1st DCA 1998)(approved in Save the

Manatee ). First, the Division of Pari-Mutuel Wagering was given

the general authority to "adopt reasonable rules for the

control, supervision, and direction of all . . .

licensees . . .." Id. at 102. The Division of Pari-Mutuel

Wagering was not given the specific statutory duty or power to

"supervise, administer . . . and control the operation of all"

pari-mutuel wagering facilities nor do they have the specific

duty to "preserve, manage, . . . and protect" these facilities.

The Division of Pari-Mutuel Wagering regulates the facilities;

they are not the caretakers of the facilities, directly

responsible for the operation of the facilities and the persons

who frequent them. Second, the Division of Pari-Mutuel Wagering

did not have the specific statutory duty or power to conduct

warrantless searches. As noted by the court, the only

identifiable authority in the enabling statute to empower the

Division of Pari-Mutuel Wagering to conduct the searches was the

Division of Pari-Mutuel Wagering's power to carry out

investigations. The court rejected the adequacy of this power

to support the proposed rule.

68. Rule 62D-2.014(18) implements or interprets the

specific or explicit statutory duties enumerated above. Through

the Rule, the Division formally advises the public of some, but

not all, free speech activities. Free speech activities are not

unfettered because they cannot "create a safety hazard or

interfere with any other park visitor's enjoyment of the park's

natural or cultural experience." This Rule further advises the

public to inquire if there are any park "restrictions as to

time, place, and manner" which may be specifically applied when

a free speech activity is planned. Finally, the Rule advises

that "park visitor use patterns and other visitor activities

occurring at the time of the free speech activity" will be

considered by the park manager when called upon to "determine

the suitability of place and manner" restrictions, if any.

69. This Rule broadly explains how the Division

supervises, administers, regulates, and controls the operations

of all the public parks regarding free speech activities and is

a valid attempt to implement or interpret specific or explicit

statutory duties.

70. Throughout the Petition, there are allegations that

Rule 62D-2.014(18) is an unconstitutional prior restraint on

free speech. Whether Rule 62D-2.014(18) is unconstitutional on

its face or as applied is beyond the scope of this Final Order.

The Division of Administrative Hearings does not have the

jurisdiction or authority to pass on the constitutionality of an

existing rule. See Key Haven Association Enterprises, Inc. v.

Board of Trustees of Internal Improvement Trust Fund , 427 So. 2d

153 (Fla. 1982).

Rule 62D-2.014(18), Florida Administrative Code, is not

vague, does not fail to establish adequate standards for

Division decisions, nor vests unbridled discretion in the

Division.

71. Frandsen also alleges that Rule 62D-2.014(18) is

vague, fails to establish adequate standards for agency

discretion, and vests unbridled discretion in the agency. Rule

62D-2.014(18) is a valid exercise of delegated legislative

authority.

72. In paragraph 4 of his Petition, Frandsen alleges that

Rule 62D-2.014(18) gives the Division unbridled discretion

because it does not contain a time limit within which the park

manager must respond to inquiries about time, place, and manner

restrictions, thereby allowing the park manager to effectively

limit free speech by inaction.

73. While Frandsen and others feel it is imperative to

receive authority from the Division prior to conducting their

proposed park activity, the Rule, on its face, does not require

contact with the park manager nor expressly require a permit or

license prior to conducting free speech activities. See

Naturist , 858 F. Supp. at 1570-1571, regarding the former rule.

The Division tries to respond expeditiously to inquiries,

although some complex questions require more response time. The

lack of a specific response time is not fatal. "Where a time

period is not specified, courts will normally infer that a

reasonable time was intended." Kennedy v. Crawford , 479 So. 2d

758, 761 n. 5 (Fla. 3d DCA 1985). See also Roberts v. Askew ,

260 So. 2d 492 (Fla. 1972). On this record, the lack of a

specific time limit to respond to inquiries does not give the

Division unbridled discretion. Any decision, which may arise as

a result of the application of the Rule and the Division's case-

by-case determinations, is subject to challenge. Hasper .

74. In paragraph 6 of his Petition, Frandsen alleges that

the Rule is vague because it states that free speech activities

"include, but are not limited to , public speaking, performances,

distribution of printed material, displays, and signs."

(emphasis in original).

75. This Rule is different from other rules because the

"include, but are not limited to" language does not proscribe

conduct on its face and does not describe any punishment if a

person performs a free speech activity not included in the list

of examples.

76. Moreover, the list of examples is not meant to

exhaustive and, as interpreted by the Division, the term

"include, but are not limited to" means anything that is covered

by the First Amendment, whether it be oral, written, or symbolic

conduct or speech. See generally Mayo v. City of Sarasota , 503

So. 2d 347, 349 (Fla. 2d DCA 1987) (applying the doctrine of

ejusdem generis to a city personnel rule)("Under the doctrine of

ejusdem gereris where an enumeration of specific things is

followed by some more general word or phrase, such general word

or phrase will usually be construed to refer to things of the

same kind or species as those specifically enumerated.")

77. It is neither practicable nor required for the

Division to list every authorized free speech activity. Any

attempt at an exhaustive list would be incomplete.

78. The general test for vagueness "is whether the statute

[here the Rule] gives a person of ordinary intelligence fair

notice of what constitutes forbidden conduct." State of Florida

v. Pavon , 26 Fla. L. Weekly D2107a (Fla. 4th DCA Aug. 29,

2001)(citing Brown v. State , 629 So. 2d 841, 842 (Fla. 1994)).

The limited list of examples of free speech activities does not

make the Rule impermissibly vague. 10

79. Frandsen alleges in paragraphs 9, 10, 11, and 12 of

the Petition that the Rule vests park managers with unbridled

discretion to restrict free speech activities. Essentially,

Frandsen argues that the terms "safety hazard," "visitor's

enjoyment" and "visitor use patterns" do not provide park

managers with sufficient standards when deciding on appropriate

time, place, or manner restrictions. However, these terms have

definite, yet broad, meanings and park managers are in the best

position to evaluate the conditions at the parks they manage and

decide on appropriate restrictions based on the proposed

activity and the guidelines articulated in the Rule.

80. In addition, it is not Rule 62D-2.014(18), which gives

the Division or park managers the discretion to regulate and

control activities in state parks. Rather, it is Section

258.004(1)(2), Florida Statutes, that grants the Division this

authority. The Division then delegated some of this authority

to the park managers who are responsible for the daily operation

of their parks. Therefore, this is not a case where the Rule

confers unbridled discretion on the Division. A rule is not

invalid "simply because [the] 'governing statutes, not the

challenged rule, confer . . . discretion.'" Florida Public

Service Commission v. Florida Waterworks Association, 731 So. 2d

836, 843 (Fla. 1st DCA 1999) (quoting Cortes v. Board of

Regents , 655 So. 2d 132, 138 (Fla. 1st DCA 1995)). The duties

of the Division specified in the statute are broad and,

therefore, rulemaking latitude is similarly broad.

81. Whether a particular time, place, or manner

restriction is appropriate will depend on a number of factors

including such things as the park involved, the type of

activity, the time of year and the time of day. In this case,

it is a determination which must be made on a case-by-case basis

because it is not practicable for the Division to list a set of

time, place, and manner restrictions for every conceivable free

speech activity which could potentially be held in each of the

155 state parks, 365 days of the year for the foreseeable

future.

82. The Florida Supreme Court has recognized and supported

the principle that rules may clarify and flesh out the details

of an enabling statute. Agencies utilize their expertise by

creating rules to effectuate specific duties. "The Legislature

itself is hardly suited to anticipate the endless variety of

situations that may occur or to rigidly prescribe the conditions

or solutions to the often fact-specific situations that arise. "

Avatar Development Corporation v. State , 723 So. 2d 199, 204

(Fla. 1998). See also Southwest Florida Management District v.

Charlotte County , 774 So. 2d 903, 917 (Fla. 3d DCA 2001)

(quoting Cole Vision Corporation v. Department of Business and

Professional Regulation , 688 So. 2d 404, 410 (Fla. 1st DCA

1997)("The sufficiency of a rule's standards and guidelines may

depend on the subject matter dealt with and the degree of

difficulty involved in articulating finite standards.") and

Environmental Trust v. State, Department of Environmental

Protection , 714 So. 2d 493, 498 (Fla. 1st DCA 1998)("An agency

statement explaining how an existing rule of general

applicability will be applied in a particular set of facts is

itself not a rule. If that were true, the agency would be

forced to adopt a rule for every possible variation on a theme,

and private entities could continuously attack the government

for its failure to have a rule that precisely addresses the

facts at issue. Instead, these matters are left for the

adjudication process under section 120.57, Florida Statutes."

83. The specific time, place and manner restrictions, if

any, placed on any particular activity presents a narrow

question that must be addressed on a case-by-case basis. A

person who believes that any imposed restrictions are

inappropriate for any reason can challenge the agency action

pursuant to Sections 120.569 or 120.57, Florida Statutes.

Environmental Trust ; Hasper .

84. Frandsen further alleges in paragraph 13 of the

Petition that the Rule is invalid because it does not provide

for administrative or judicial appeal of any specific time,

place, or manner restrictions imposed by the Division. It is

alleged that this gives the Division unbridled discretion to

limit free speech. However, this is not the case and as stated

above, any particular restrictions placed on a person can be

challenged through the APA.

85. Based upon the foregoing, Rule 62D-2.014(18) is not

vague, does not fail to establish adequate standards for

Division decisions, and does not vest unbridled discretion in

the Division.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

ORDERED that the Petition to declare Rule 62D-2.014(18),

Florida Administrative Code, invalid is dismissed.

DONE AND ORDERED this 26th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September, 2001.

ENDNOTES

1 / "Duty," means "1. An act or a course of action required of

one by position, custom, law, or religion . . .. 3. A service,

action, or task assigned to one esp. in the armed forces.

4. Function or work: SERVICE . . .." Webster's II New College

Dictionary 352 (1999).

2 / "Supervise," means "To direct and watch over the work and

performance of." Id. at 1107.

3 / "Administer," means "1. To have charge of: MANAGE . . .."

Id. at 14.

4 / "Regulate," means "To control or direct in agreement with a

rule. 2. To adjust in conformity to a requirement or

specification . . .." Id. at 934.

5 / "Control," . . . means "1. Authority or ability to regulate,

direct, or influence . . .." Id. at 246.

6 / "Operation," means "1. An act, process, or way of

operating . . .." Id. at 767.

7 / "Preserve," means "1. To keep safe, as from injury or peril:

PROTECT . . .." Id. at 874.

8 / "Manage," means "1. To direct or control the use of.

2.a. To exert control over . . .." Id. at 664.

9 / "Protect," means "1. To keep from harm, attack, or injury:

GUARD . . .. Id. at 889.

10 / In McGuire v. State , 489 So. 2d 729 (Fla. 1986), the court

upheld the validity of a former park clothing rule in response

to a vagueness challenge. The rule provided in pertinent part:

"In every bathing area all persons shall be clothed as to

prevent any indecent exposure of the person. All bathing

costumes shall conform to commonly accepted standards at all

times." While noting that the rule could and should have been

more precise, the court nevertheless held that "McGuire ha[d]

failed to demonstrate that the regulation at issue [was] so

vague as to fail to put her on notice that her activities were

proscribed." Id. at 732.

COPIES FURNISHED:

Suzanne B. Brantley, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

Marvin Vaun Frandsen

4467 Country Road

Melbourne, Florida 32934

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building

Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a notice of appeal with the Clerk of the

Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the Appellate District where the party resides. The

notice of appeal must be filed within 30 days of rendition of

the order to be reviewed.