
    Belinda McGUIRE, Petitioner, v. STATE of Florida, Respondent.
    No. 84-648.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied April 10, 1985.
    James K. Green of Green, Eisenberg and Cohen, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

AFFIRMED.

DELL, J., concurs.

BERANEK, J., dissents with opinion.

LETTS, J., concurs specially.

BERANEK, Judge,

dissenting.

This matter is before the court on petition for common law certiorari to review an order of the Circuit Court acting in its appellate capacity. The Circuit Court affirmed the petitioner’s conviction of indecent exposure by wearing improper bathing attire in violation of a state park regulation designated as Rule 16-D 2.04(l)(e), Florida Administrative Code. The controversy is summarized in the first few paragraphs of the Circuit Court Judge’s order as follows:

[T]he precise question is whether or not a specific Rule of the Florida Administrative Code is sufficiently precise to inform the public and law enforcement officers of what is and what is not required of bathing costumes.
The language is as follows:
“In every bathing area all persons shall be clothed as to prevent any indecent exposure of the person. All bathing costumes shall conform to corn-monly accepted standards at all times.” [Rule 16-D 204(l)(e)]
Appellant correctly argues that better drafting would have produced a Rule requiring that breasts, genitalia and buttocks be covered by clothing sufficient to conceal them. So the question properly is whether or not this language is vague or is sufficiently clear for all reasonable persons to understand its meaning and requirements.

The defendant was arrested for violating the above park regulation because she was jogging wearing only a bathing suit bottom. She attacked the facial validity of the regulation. The trial court concluded that the regulation was not void for vagueness and the Circuit Court, in its appellate capacity, agreed. The majority has denied review. I disagree. The Fifth District Court of Appeal in Del Percio, et al, v. The City of Daytona Beach, 449 So.2d 323 (Fla. 5th DCA 1984), recently considered a much more definitive ordinance and found it constitutionally void for vagueness. Based upon the authorities cited therein, I would conclude that the present regulation is also constitutionally infirm. To say that all bathing suits must conform to commonly accepted standards is to leave the public and the police in total doubt as to what is commonly accepted. I suggest that we have finally arrived at the time in statutory evolution where the legislature and the state park authorities are capable of enunciating exactly what they mean in clothing and decency regulations. If topless jogging by a female is to be a crime when carried out in an area where such conduct has been commonly accepted, then the rule-making authority should say so in clear language. I would hold the regulation to be vague and unenforceable.

LETTS, Judge,

concurring specially.

I concur specially to observe that Judge Dell and I sympathize with much of what Judge Beranek sets forth in his dissent. However, we cannot agree that what the circuit court did constituted an essential departure from the requirements of the law.

ON REHEARING

PER CURIAM.

The petition for rehearing is denied upon the authority of Moffett v. State, 340 So.2d 1155 (Fla.1976). However, we grant the petitioner’s request to certify the following question pursuant to Rule 9.030(2)(A)(v), Florida Rules of Appellate Procedure:

Is Rule 16-D-2.04(l)(e), Florida Administrative Code, which requires in part that “bathing costumes shall conform to commonly accepted standards” unconstitutional?

DELL, J., concurs.

BARKETT, J., concurs in part and dissents in part with opinion.

LETTS, J., concurs specially with opinion.

BARKETT, Judge,

concurring in part and dissenting in part.

I agree with the majority in certifying the question. However, I respectfully dissent with the majority view on the merits and would grant the petition for rehearing. I believe the pertinent administrative code provision to be unconstitutionally vague. Because a conviction under an unconstitutional law constitutes fundamental error, a fortiori, it is a departure from the essential requirements of law and certiorari is the appropriate remedy. Combs v. State, 436 So.2d 93 (Fla.1983).

The defendant in this case was convicted pursuant to Rule 16D-2.04(l)(e), Florida Administrative Code, which provides in part:

In every bathing area all persons shall be clothed so as to prevent any indecent exposure of the person. All bathing costumes shall conform to commonly accepted standards at all times.

I respectfully suggest that to automatically equate the terms “indecent exposure” and “bathing costumes ... that conform to commonly accepted standards” to a topless bathing suit is a totally subjective exercise in the mind of the beholder. The lack of specificity of these terms and the subjectivity of interpretation is underscored by the testimony of the MacArthur State Park manager who testified that a swimsuit top was not necessary to comply with the regulation — seashells would suffice! “In my mind, if the seashell is large enough to cover the nipple portion of the breast, it would probably be okay....” Another park officer indicated he had seen skimpy bathing suits which revealed “pubic hair” and “nipple erection” or “something that would be close to it.” He was unsure of the proper response to such a suit. Clearly, each park officer has his own notion of what conduct constitutes indecent exposure and what attire is acceptable. One’s chances of arrest under this rule are dependent upon the unbridled discretion of whichever officer happens to be on duty on a given day.

The same problems exist regarding the phrase “commonly accepted standards.” Commonly accepted where? By whom? Clearly, the evidence indicated that the defendant’s bathing costume had been commonly accepted on this beach for many, many years before this incident. The Air Force Beach area, when owned by John D. MacArthur had, by custom, been a “clothing-optional” beach. The letter in evidence from J. Roderick MacArthur states:

As you may remember, my father owned the entire 345 acre area, part of which was sold and part donated to become a State park. He always resisted the temptation to exploit it commercially, and not only tolerated it, but positively approved of the nude bathing and sunbathing (he had always been a skinny dipper himself). So the use of this beach by the clothing-optional people has been institutionalized for over a quarter of a century.

At the trial, one park officer stated that at the time of this defendant’s arrest, the beach, by commonly accepted practice, was divided into clothed and clothing-optional areas. The defendant was m the clothing-optional area.

The issue in this case is not whether partial nudity is or is not to be tolerated. That issue is one ultimately to be decided by the public. The narrow issue for this court is whether the actions of this defendant constitute criminal conduct under the wording of this rule. It is axiomatic that a criminal statute or rule must be strictly interpreted and should give clear and fair warning as to the conduct it is meant to prohibit. Legislation that is clearly vague and open to interpretation or not easily interpreted by reasonable persons is viola-tive of constitutional standards:

[I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972). We, as jurists, are not privileged to declare behavior to be immoral, immodest, lewd, or indecent merely because such behavior may not be in keeping with our individual concepts. City of Cincinnati v. Wayne, 23 Ohio App.2d 91, 261 N.E.2d 131 (1970). If the State wishes to proscribe partial or total nudity, it is incumbent upon the State when imposing criminal penalties therefor, to clearly say so. One need only read chapter 847, Florida Statutes (1983), to know that specificity in delineating proscribed conduct in this area of the law can easily be accomplished. I concur with Judge Beranek’s original dissent that:

[W]e have finally arrived at the time in statutory evolution where the legislature and the state park authorities are capable of enunciating exactly what they mean in clothing and decency regulations. If topless jogging by a female is to be a crime when carried out in an area where such conduct has been commonly accepted, then the rule-making authority should say so in clear language.

LETTS, Judge,

concurring specially.

A reviewing court is supposed to uphold the constitutionality of a statute, ordinance or code — if it can. Aldana v. Holub, 381 So.2d 231 (Fla.1980). The phrase “commonly accepted standards” may be vague, but we do not need to reach it here because the first half of the applicable code provision proscribes “indecent exposure.” I suggest there are very few citizens of this state who would not agree that an adult woman presenting herself in public, naked from the waist up is engaging in indecent exposure. Certainly, that is my view. If I am correct, then even the latter half of the code provision relating to commonly accepted standards would not be constitutionally infirm when applied to the facts of this case.

The dissent’s discourse on skimpy bathing suit tops and pubic hair is inapt. In this case, we are concerned only with breast baring. The top was neither decent nor indecent, it was nonexistent.

In conclusion, I continue to be of the view that what the circuit court did here, sitting in its appellate capacity, was not a departure from the essential requirements of the law. Judge Barkett cites Combs, a recent Supreme Court case on this subject, which appears to equate certiorari jurisdiction with the “seriousness of the error” coupled with a “miscarriage of justice.” As ever, these quoted exerpts leave room for judicial difference of opinion. Suffice it to say I have a hard time believing that the judge’s error here, if any, was of serious constitutional dimension. Nor do I perceive any great miscarriage of justice. As our Supreme Court held in Moffett, supra:

We are ... convinced that ... the Legislature intended to prohibit adult females from appearing in public places, including Florida’s public beaches, with openly exposed breasts.

So be it. 
      
      . There was specific evidence offered in this case that nudity had been acceptable on this beach for many years before the incident in question.
     