text:
    ROCKLAND PHYSICIAN ASSOCIATES, P.C., Ehsanollah Benaresh, M.D., Caridad M. Dy, M.D., Moon Young Kim, M.D., Anthony C.K. Lau, M.D., Rizalina Turla, M.D., Sidney Veitch, M.D., Plaintiffs, v. Warren GRODIN, M.D., Individually, and as Director, Department of Anesthesiology, Nyack Hospital, Nyack Medical Associates, P.C., Warren Grodin, M.D., President, Darrell Goode, M.D., David Miller, M.D., Mitchell Cohn, M.D., and Stephen Cagliostro, M.D., Individually and as members of Nyack Medical Associates, P.C., and the Nyack Hospital, Defendants.
    No. 84 Civ. 8586.
    United States District Court, S.D. New York.
    June 4, 1985.

      Danziger & Markoff, Mount Kisco, N.Y., for plaintiffs.
    McDonough Marcus Cohn & Tretter, P.C., New York City, for Nyack Medical Associates, P.C., and individual defendants.
    Garfinkel, Wild & Travis, P.C., Great Neck, N.Y., for defendant Nyack Hosp.
   MEMORANDUM DECISION

GAGLIARDI, District Judge.

Plaintiffs moved for a temporary restraining order and preliminary injunction restraining defendants from honoring an exclusive contract for anesthesiology services at Nyack Hospital (“the hospital”). Plaintiffs, who have rendered anesthesiology services at the hospital on both an exclusive and, more recently, a nonexclusive basis, argued that they retain clinical privileges at the hospital and that as long as they retain such privileges they cannot be ousted by an exclusive contract. Defendants opposed the motion on a number of grounds. Plaintiffs’ motion was denied by oral order at a conference on April 29, 1985. At that time, the court indicated that before the court could consider injunctive relief, plaintiffs would first need to exhaust their administrative remedy before the New York Public Health Council, thereby complying with the procedures set forth in N.Y.Pub.Health L. § 2801-b(l-4) and § 2801-c, as interpreted in Guibor v. Manhattan Eye, Ear and Throat Hospital, 46 N.Y.2d 736, 413 N.Y.S.2d 638, 386 N.E.2d 247 (1978). This order sets forth in greater detail the basis of the April 29 decision.

Background

Most of the critical facts concerning this action are set forth in the order of this court dated March 19, 1985, 616 F.Supp. 945, and will not be repeated here. Following issuance of the March 19 order, plaintiffs continued to provide some anesthesiology services at the hospital. Specific referrals to individual anesthesiologists to serve on particular cases apparently were honored. In April, 1985, however, plaintiffs were informed by the hospital administration that such individual referrals to plaintiffs would no longer be honored after May 1, 1985, the date the hospital’s contract with Nyack Medical Associates, P.C., (“NMA”) by its own terms becomes exclusive. Individual plaintiffs’ position is that they are entitled to have specific referrals honored, on the basis of renewal of their clinical privileges last year for the two year period beginning June 1, 1984 and ending May 31, 1986. To rebut defendants’ argument that plaintiffs’ privileges have been terminated by the exclusive contract, plaintiffs argue that (1) provisions of the hospital by-laws set forth specific procedures to be followed in the event the hospital wishes to terminate an individual’s privileges and that (2) the by-laws have the force of contract, so that (3) unless those procedures are followed, plaintiffs’ privileges remain intact.

In earlier submissions to the court, defendants have argued that questions concerning curtailment or termination of anesthesiology privileges do not present situations of irreparable harm and, further, that such questions in any event must be presented to the Public Health Council before they can be addressed by this court. The court has considered these arguments, as well as the more recent argument that plaintiffs’ privileges automatically lapse on May 1, 1985, when the contract with NMA becomes exclusive.

Discussion

I. Section 2801

At common law, a grant of hospital privileges to a physician meant little. Absent contractual provisions to the contrary, privileges were revocable by the hospital at will, for any or no reason. See Cohoes Mem. Hosp. v. Dept. of Health, 48 N.Y.2d 583, 424 N.Y.S.2d 110, 399 N.E.2d 1132 (1979); Guibor v. Manhattan Eye, Ear & Throat Hospital, 46 N.Y.2d 736, 413 N.Y. S.2d 638, 386 N.E.2d 247 (1978), aff’g, 56 A.D.2d 359, 392 N.Y.S.2d 628 (App.Div. 1977) (“Guibor"). In passing the provisions of N.Y.Pub.Health L. § 2801, the legislature granted the .holders of hospital privileges an enforceable but limited right not to have privileges terminated except “for reasons limited to patient welfare, institutional objectives, and character or competency of the physician.” See Fried v. Straussman, 41 N.Y.2d 376, 393 N.Y.S.2d 334, 335, 361 N.E.2d 984 (1977). One limitation placed on this right is that claims that a hospital improperly has excluded or expelled a physician from membership, or curtailed, terminated or diminished “in any way” a physician’s professional privileges must be presented to and determined by the Public Health Council before being brought before a court. This requirement applies to all claims, including those seeking injunctive relief. See Guibor, supra; Cohoes Mem. Hosp. v. Dept. of Health, supra (injunctive relief must await determination of Public Health Council; requirement of exhaustion of administrative remedies does not violate or conflict with N.Y. Pub.Health L. §§ 2801-b(4), 2801-c).

A second significant limitation stems from the standard of review. Under section 2801, courts are not to determine the “ultimate truth” of the claims which form the basis of a hospital’s actions. Rather, a court is to uphold a hospital’s action if it appears that the action was taken in “good faith” on the basis of the “apparent facts as reasonably perceived by the [hospital] administrators,” and that the “purported grounds were reasonably related to the institutional concerns set forth in the statute____” Fried v. Straussman, supra, 393 N.Y.S.2d at 338, 361 N.E.2d at 988; see Moss v. Albany Medical Center, 61 A.D.2d 545, 403 N.Y.S.2d 568 (App.Div.1978).

II. Irreparable Harm

Plaintiffs argue that they will be irreparably harmed if they are not permitted to practice at the hospital after May 1, 1985. In interpreting section 2801, however, New York courts have not been swayed by the sympathetic circumstances of physicians seeking injunctive relief to restore long-standing grants of clinical privileges. In Guibor, the New York Court of Appeals affirmed an appellate division opinion refusing to grant injunctive relief on the ground of failure to exhaust the administrative remedy. This was done even though the physician in question had held privileges from 1971 until 1976, and, as the result of the denial of reappointment, had not been permitted to practice in the hospital for more than two and a half years. See Guibor, supra, (issued December 6, 1978). Thus, even if a risk of irreparable harm were proven, it might not justify issuance of an injunction before recourse to the Public Health Council.

Further, on the facts of this case, plaintiffs have not met the burden of establishing irreparable harm. See the order of this court dated March 19, 1985 at 7-10. See also Dos Santos v. Columbus-CuneoCabrini Med. Ctr., 684 F.2d 1346 (7th Cir. 1982) (district court abused its discretion in granting preliminary injunction against enforcement of exclusive contract for anesthesiology, even though plaintiff retained privileges and had shown that most of the local hospitals had exclusive contracts, so that he might be unable to find employment in the area).

III. Enforcement of the By-laws

Plaintiffs also seem to argue that they are entitled to an injunction at this time because they have a distinct contractual right derived from the by-laws to continue to practice at the hospital. The court disagrees. Even if, as is doubtful, hospital by-laws are indistinguishable from a contract between hospital and physician, the provisions most heavily relied upon by plaintiffs do not apply to the facts in issue here. In addition, since plaintiffs seek an order which would permit them to practice, not one which would mandate a hearing, the court cannot characterize their claim as one which need not be presented to the Public Health Council.

A. Status of the By-laws

A number of New York cases suggest that provisions in hospital by-laws cannot be equated with provisions in a contract between a hospital and one of its physicians. The primary case cited in this area is Leider v. Beth Israel Hospital Ass’n., 11 N.Y.2d 205, 227 N.Y.S.2d 900, 182 N.E.2d 393 (1962) (per curiam). On the facts of the Leider case as set forth in the Court of Appeals opinion, it might be possible to conclude that the decision rested on a construction of the by-laws in question rather than on refusal to grant by-laws the status of contract. That inference, however, becomes less tenable upon review of the dissent and of the decision of the trial court, 33 Misc.2d 3, 229 N.Y.S.2d 134 (Sup.Ct. 1960), both of which more directly address the issue of treating by-laws as contract. Further, recent cases have cited Leider for the proposition that under New York law “medical staff by-laws do not give rise to actions against a hospital for alleged violations thereof.” Yates v. Cohoes Mem. Hosp., 64 A.D.2d 726, 406 N.Y.S.2d 893 (App.Div.), appeal dismissed, 45 N.Y.2d 836, 409 N.Y.S.2d 215, 381 N.E.2d 613 (1978) (court also found no violation of the by-laws in question); Konik v. Champlain Valley Physicians Hospital Medical Ctr., 88 A.D.2d 678, 450 N.Y.S.2d 914 (App.Div. 1982); see also Cohoes Mem. Hosp. v. Dept. of Health, supra; Moss v. Albany Medical Ctr. Hosp., supra (physician denied staff privileges sought judgment directing grant of privileges based on allegations, inter alia, of procedural irregularities; court noted that “at common law, absent a contractual obligation to the contrary, denial of staff privileges by a private hospital constituted no legal wrong”).

Plaintiffs stress two cases in their argument on this question. The first, Northeast Georgia Radiological Assoc. v. Tidwell, 670 F.2d 507 (5th Cir.1982), in no way determined the issue in this case. In Northeast Georgia, language in the contract between plaintiff (a professional corporation for radiology services) and the hospital referred to the hospital by-laws and incorporated them. See id., 670 F.2d at 509, n. 6. Here, there is no such provision in the contract between Rockland Physicians Associates, P.C., and the hospital. In Northeast Georgia, the focus was not on whether the procedural provisions of the by-laws were enforceable as contract, but rather whether, where a county hospital was involved, it was appropriate to find a “protected property interest” and state action, and thus to require that physician-contractors be afforded due process. Here, there are no questions of state action or constitutional right, only those of contract and statutory right.

The second case relied on by plaintiffs, Chalasani v. Newman, 97 A.D.2d 806, 468 N.Y.S.2d 672 (App.Div.1983), rev’d with direction to dismiss original complaint for mootness, 64 N.Y.2d 879, 487 N.Y.S.2d 556, 476 N.E.2d 1001 (1985), while closer to the facts here, does not clarify matters significantly. In Chalasani, the trial court upon motion dismissed for failure to state a cause of action a complaint which alleged that the defendant hospital had failed to follow procedures included in its by-laws when it denied plaintiff reappointment to the hospital’s staff. In a brief memorandum decision, the appellate division reversed. It reinstated the complaint, finding error in the lower court’s holding that “violation of Medical Staff By-Laws do[es] not give rise to an action against the hospital,” and holding that “the complaint does sufficiently plead a cause of action to withstand the motion to dismiss.” Id., 468 N.Y.S.2d at 673.

The Chalasani decision makes no mention of either the Guibor or the Leider line of cases, and concludes only that a cause of action may arise where a hospital violates its by-laws. The decision quite clearly does not hold that by-laws are enforceable as contract. The word “contract” does not appear, nor is there any mention of contractual remedies. Significantly, the analysis relies primarily on Tedeschi v. Wagner Coll, 49 N.Y.2d 652, 427 N.Y.S.2d 760, 763, 765, 404 N.E.2d 1302, 1305, 1307 (1980), where a student suspended from college was not afforded a review hearing described in the college’s published guidelines. In Tedescki, the Court of Appeals expressly refused (1) to accept the proposition that the rules should be treated as contract, (2) to reverse dismissal of a claim for money damages, (3) to require more than “substantial compliance” with procedural rules, or (4) to direct immediate reinstatement pending the hearing. The relief granted was essentially a direction that a hearing must be held within five months, or else plaintiff must be reinstated. Since the plaintiffs in this case have neither formally demanded nor actively sought a review hearing, Chalasani and Tedescki do little to further their cause.

Thus, under current New York law, the hospital's by-laws should not be treated as a contract in the manner urged by plaintiffs.

B. Construction of the by-laws

Even assuming that the hospital bylaws should be treated as a contract, injunctive relief would be unjustified, since plaintiffs’ claim based on the by-laws seems unlikely to succeed. Article III of the Nyack Hospital By-Laws is structured as follows:

Section 1 Qualifications
Section 2 Ethics and Ethical Relationships
Section 3 Application for Membership
Section 4 Procedure of Appointment and Reappointment
Section 5 Terms of Appointment
Section 6 Discipline
Section 7 Initiation of a Complaint
Section 8 Appeal of Adverse Decision
Section 9 Summary Suspension
Section 10 Automatic Suspension

General provisions concerning membership appear in sections three through five of Article III. Sections six through ten are more limited in nature, referring to the situation where a physician is accused of incompetence or misconduct. To say that selected provisions of sections seven and eight apply even in cases which do not concern such accusations, then, seems to take them out of context.

Once the provisions of sections seven and eight are excluded, the pertinent by-law provisions suggest only that plaintiffs are entitled not to be removed except by the Board of Trustees after conference with the Medical Executive Committee. Plaintiffs argue that no such action has been taken by the Board. Were the court to find both that the by-laws constitute a contract and that the Board has not acted, it might conclude that the individual plaintiffs retain privileges which are not being honored. As discussed earlier, however, a claim that existing privileges are being improperly dishonored is precisely the kind of claim which by law must first be presented to the Public Health Council.

Conclusion

The foregoing constitutes the court’s findings of fact and conclusions of law pursuant to Rule 52(a), Fed.R.Civ.P. For the foregoing reasons, the court denied plaintiffs’ application.

So Ordered.

      . It is not clear that renewal of privileges for two year periods is in accordance with the hospital by-laws. See Nyack Hospital By-laws, art. III, sec. 5(1); see also Nyack Hospital By-laws, art III, sec. 3(lc), (10).

      . The court can give little weight to the fact that individual referrals to particular anesthesiologists now are being made. There is no evidence that such referrals were common before issuance of the March 19 order.

      . There are no express contracts between individual plaintiffs and the hospital.

      . The breach of contract claims in Northeast Georgia were voluntarily dismissed; a claim under 42 U.S.C. § 1983 remained.

      . The term “protected property interest” cannot be equated to the term "contract right.”

      . In their affidavit in support of preliminary injunctive relief and restraining order, plaintiffs rely specifically on art. III, sec. 5(5); art. III, sec. 7(4)(c); and art. III, sec. 8(3) of the by-laws.

      . The specific procedures outlined in art. Ill, sec. 8., concerning appeal to a hearing officer who hears evidence and makes findings for later review, if necessary, by the Board of Trustees, not surprisingly are suitable for cases where resolution of a factual question will be decisive. Where the basic facts are not disputed, and the critical questions concern the legal rights that arise under the facts (as one may expect where privileges are changed for reasons which reflect "institutional concerns,” not characteristics of individual physicians), there would appear to be little sense in following such procedures, and thus little sense in reading them as an expansion of art. Ill, secs. 3, 4 and 5. See generally Nyack Hospital By-Laws, art. III, sec. 3(3B); N.Y.Pub.Health L. § 2801-b.

      . The general provisions in Article 3 include: No practitioner shall be automatically entitled to membership on the Medical Staff or to exercise of particular clinical privileges ... because he had, or presently has ... staff membership or privileges at this hospital.... [art. Ill, sec. 3(lc) ]; An application may be denied ... on the basis of inconsistency with the Hospital's written plan of development ... or ... insufficient current or expected patient load to support an additional staff member with the applicant’s skills and training____ [art. Ill, sec. 3(3B) ]; The Board of Trustees may [ajccept the recommendation of the Staff, or [rjefer the recommendation to the Joint Conference Committee for advice, or ... [rjeject the application following consultation with the Joint Conference or Medical Executive Committee, ____[art. Ill, sec. 4(9) ];
      In no case shall the Board of Trustees ... cancel an appointment previously made, or reduce or increase privileges, without conference with the Medical Executive Committee ____[art. Ill, sec. 5(3) ];
      Members of the Staff are subject to removal by the Board of Directors at any time after a conference with the Medical Executive Committee ----[art. Ill, sec. 5(6)].

      . Defendants argue that the action of the Board of Trustees in approving the exclusive contract with NMA is sufficient to terminate plaintiffs’ privileges as of May 1, 1985. In view of the analysis above, the court will not consider defendants’ argument at this time.


source: Caselaw Access Project

author: JOYCE HENS GREEN, District Judge.

license: Public Domain

text:
    Carlos CHIRIBOGA and Fabiola Chiriboga, and Sonia Chiriboga Ruiz, Personal Representative of the Estate of Jesus Guevara, Plaintiffs, v. INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT, T/A the World Bank, and the Insurance Company of the State of Pennsylvania, Defendants.
    Civ. A. No. 84-0182.
    United States District Court, District of Columbia.
    March 29, 1985.

      Craig Dean Katz, H. Edward Chozick, Washington, D.C., for plaintiffs.
    Daryl J. Hudson, III, Washington, D.C., for Insurance Company.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This matter comes before the Court on defendant World Bank’s (“the Bank”) motion to dismiss and the defendant Insurance Company of the State of Pennsylvania’s (“Insurance Company”) motion to dismiss, or in the alternative, motion for summary judgment. The plaintiffs brought suit against the defendants in an effort to recover $200,000 in benefits under an accident insurance policy held by a former employee of the World Bank. The defendant World Bank now contends that it is immune from suit because this case arose out of a dispute involving the Bank’s “personnel policies or dealings with [Bank] employees.” The defendant Insurance Company argues that the claims alleged against it should be dismissed for lack of subject matter jurisdiction, or in the alternative, that summary judgment should be granted in its favor because the insurance policy holder was not covered under the policy at the time the accident occurred. For the reasons set forth below, the Court grants the defendants’ motions to dismiss.

I.

On July 11, 1983, Alicia Chiriboga Guevara and her husband, Jesus Guevara, were killed in an airplane crash in Ecuador. At the time of the accident, Alicia Guevara was employed by the World Bank in Washington, D.C. The trip to Ecuador was undertaken by the Guevaras—both natives of Ecuador—as part of the Bank’s home leave benefit arrangement, which permits staff members and their families to return periodically to their home countries. The Bank authorized the Guveras’s planned 19-day trip as “home leave travel” and as “annual leave”. Only the two travel days to and from Quito, Ecuador, however, were authorized as home leave travel. The Bank paid for the Guevara’s round trip fare between Washington and Alicia Guevara’s home city of Quito, Ecuador.

The Guevaras left Washington, D.C. for Quito on July 3, 1983. Approximately one week after their arrival in Quito the Guevaras elected to make a trip to the city of Cuenca, Ecuador. Unlike the trip to Quito, this trip was not specifically authorized by the Bank. The Guevaras themselves paid for the airplane tickets. On the way to Cuenca, the Transportes Aereos Nacionales Ecuitorianos 737 carrying the Guevaras crashed, killing numerous passengers. Among those killed were the Guevaras.

At the time of her death Alicia Guevara was insured under a benefits plan provided by the World Bank to its employees. The Bank itself did not provide the insurance policy. Rather, the group travel accident policy was issued by the Insurance Company of Pennsylvania to the World Bank.

The policy provided that “each employee as defined in paragraph 1A (1) 1A (2) of foreign accident endorsement W-l will be insured for an additional sum of $100,-000.00 in the event of death____” Endorsement W-l, in turn, defined those eligible for air travel death benefits as:

I A.
1. ... Executive Directors, their alternates, assistants to executive directors, staff members, and consultants employed by the assured, and visitors who are officially invited at the insured’s expense to Washington, D.C. to observe the operation of the Economic Development Institute programs____
5. Spouses of employees, as defined in (1) above, when expenses for travel are borne by the employer,
All of Whom Are:
1. Travelling from their regular official station; or
2. Travelling to their regular official station; or
3. Travelling in any place in the world away from their regular official station; or
4. Temporarily located away from their regular official station when officially authorized by the employer or authorized by a country governmental instrumentality or agency, entity organization, institution or group collaboration with the employer in work for mutual interests; or
5. On direct travel, proceeding on or returning from officially authorized home leave or rest and recuperation leave; or who
6. In connection with entering into the employment of the employer, are travelling from their home to their regular official station provided such travel is at the direction and expense of the employer;
7. Or who, in connection with termination of employment, are travelling in their home provided such travel is at the direction and expense of the employer; or
8. As a result of any of the above outlined travels and for personals [sic] reasons are on a delayed enroute or a deviation enroute provided such delay en-route or deviation in travel does not exceed a period of seven (7) days.

The policy named Carlos and Fabiola Chiriboga, the parents of Alicia Guevara, as the sole beneficiaries.

Shortly after the crash, the Chiribogas and Sonia Chiriboga Ruiz—the personal representative of the Estate of Jesus Guevara—each placed a demand with the World Bank for payment of $100,000 in insurance benefits. The Bank refused to pay the policy proceeds on the grounds that the Guevaras were not covered under the policy at the time of the accident.

Six months later, in January 1984, the Chiriboga parents and Sonia Ruiz filed suit against both the World Bank and the Insuranee Company of Pennsylvania. The plaintiffs alleged that the Bank and the Insurance Company had breached the terms of the insurance contract and deliberately “deceived the defendants to think that there were no restrictions or limitations to the payment of the $100,000 benefits.”

In the motions to dismiss the defendant World Bank now argues that regardless of the merits of the plaintiffs’ claims, the Bank is immune from suit because “activities defining or arising out of [the] relationship of an international organization with its internal administrative staff ... may not be the basis of an action against the organization____” Broadbent v. Organization of American States, 628 F.2d 27, 35 (D.C.Cir.1980). As its primary defense the defendant Insurance Company contends that the Court lacks subject matter jurisdiction over the case because the complaint fails to establish complete diversity under 28 U.S.C. § 1332(a)(3). In the alternative, the Insurance Company refutes the plaintiffs’ specific charges of breach of contract, misrepresentation or deceit, and argues that summary judgment should be granted in their favor because the terms of the contract clearly did not cover the Guevara’s trip to Cuenca.

Each of these claims are examined in turn below. It is the jurisdictional issue, however, that the Court must address at the outset.

II.

A.

The plaintiffs assert that this Court has jurisdiction over their complaint under 28 U.S.C. § 1332(a)(3) and 22 U.S.C. § 286g. 28 U.S.C. § 1332(a)(3) provides that “the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and is between—... (3) citizens of different States and in which foreign states or citizens or subjects thereof are additional parties.” 22 U.S.C. § 286g provides that:

For the purpose of any action which may be brought within the United States or its Territories or possessions by or against the Fund or the Bank in accordance with the Articles of Agreement of the Fund or the Articles of Agreement of the Bank, the Fund or the Bank, as the case may be, shall be deemed to be an inhabitant of the federal judicial district in which its principal office in the United States is located, and any such action at law or in equity to which either the Fund or the Bank shall be a party shall be deemed to arise under the laws of the United States, and the district courts of the United States shall have original jurisdiction of any such action.

Without mentioning 22 U.S.C. § 286g,-the defendant Insurance Company insists that jurisdiction is lacking under 28 U.S.C. § 1332(a)(3) because the Bank is “an international financial institution” without national identity. Section 1332(a)(3) applies only to suits where the opposing parties are citizens of different states and where foreign states or citizens thereof are additional parties. The Bank, the defendant argues, is neither a U.S. citizen nor a foreign state or a “citizen thereof”; séction 1332(a)(3) cannot, therefore, provide a jurisdictional basis for suit in this Court.

Section 286g expressly states that where suit is consistent with the Bank’s Articles of Agreement, the Bank shall be deemed a citizen of the judicial district where it has its principal office. Accepting that the World Bank is “an international financial institution,” Mendaro v. World Bank, 717 F.2d 610, 611 (D.C.Cir.1983), and not a citizen of any U.S. state, it follows that section 286g may be held to provide a jurisdictional basis for this suit only if suit against the Bank is proper under the Articles of Agreement. Regardless whether one concludes that the Bank’s principal office is in New York or Washington, D.C., complete diversity is possible. The defendant Insurance Company is based in Pennsylvania, and the plaintiffs are alien residents of Maryland. Thus, if the Articles permit suit, complete diversity exists for purposes of section 1332(a)(1) and the Court may assert jurisdiction.

It is at this point that the defense asserted by the Bank in its motion to dismiss dovetails with the jurisdictional question raised by the Insurance Company. If the Bank is immune under the Articles of Agreement, as the Bank contends, this cause of action would not “be brought ... in accordance with the Articles of Agreement of the Bank”, 28 U.S.C. § 286g, and section 286g could not be used to establish diversity jurisdiction. The Bank’s motion to dismiss and the Insurance Company’s motion to dismiss for lack of subject matter jurisdiction, therefore, turn on the question of immunity.

B.

It is well established under international law that “an international organization is entitled to such privileges and such immunity from the jurisdiction of a member state as are necessary for the fulfillment of the purposes of the organization____” Mendaro v. World Bank, 717 F.2d 610 (D.C.Cir.1983), quoting Restatement of the Foreign Relations Law of the United States (Revised) § 464(1) (Tentative Draft No. 4) (1983). In keeping with this principle, this Circuit has repeatedly upheld the immunity of various international organizations from suits arising out of an employment relationship. In Broadbent v. Organization of American States, for example, the court held that the Organization of American States was immune from a suit brought by employees alleging a breach of their employment contracts. The court gave a number of persuasive policy reasons for its decision:

[t]he United States has accepted without qualification the principles that international organizations must be free to perform their functions and that no member state may take action to hinder the organization. The unique nature of the international civil service is relevant. International officials should be as free as possible, within the mandate granted by the member states, to perform their duties free from the peculiarities of national politics____ An attempt by the courts of one nation to adjudicate the personnel claims of international civil servants would entangle those courts in the internal administration of those organizations. Denial of immunity opens the door to divided decisions of the courts of different member states passing judgment on the rules, regulations, and decisions of the international bodies.
Undercutting uniformity in the application of staff rules or regulations would undermine the ability of the organization to function effectively.

628 F.2d at 34-35 (footnotes omitted; emphasis in original).

Similarly, in Mendaro v. World Bank, the Court held that the World Bank was immune from an employee’s suit alleging that the Bank had discriminated on the basis of sex. Citing Broadbent, the Mendaro court noted that “one of the most important protections granted to international organizations is immunity from suits by employees of the organization in actions arising out of the employment relationship. Courts of several nationalities have traditionally recognized this immunity, and it is now an accepted doctrine of customary international law.” 717 F.2d at 615. The reason given in Mendaro for providing immunity was—as the Broadbent court had pointed out—that unilateral control by a member nation would likely hamper the functioning of the organization:

The purpose of immunity from employee actions is rooted in the need to protect international organizations from unilateral control by a member nation over the activities of the international organization within its territory. The sheer difficulty of administering multiple employment practices in each area in which an organization operates suggests that the purposes of an organization could be greatly hampered if it could be subjected to suit by its employees worldwide. But beyond economies of administration, the very structure of an international organization, which ordinarily consists of an administrative body created by the joint action of several participating nations, requires that the organization remain independent from the international policies of its individual members.

717 F.2d at 615-16.

The activity involved in this case falls squarely within the protected sphere of activity as defined in Broadbent and its progeny. The heart of the plaintiffs’ claim is that the Bank denied the plaintiffs employee benefits to which they were entitled as named beneficiaries and the personal representative of a deceased employee and her spouse. The dispute focuses on what the Bank did or did not contract to provide to its employees. It is difficult to imagine a suit that touches more closely on the internal operations of an international organization. No matter how approached, this case cannot be characterized as anything other than a suit “arising out of the Bank’s ... relationship with its own employees.” 717 F.2d at 617.

Like other types of immunity, however, the immunity available to international organizations may be waived by members of the organization or its administrative directors. 717 F.2d at 617. The plaintiffs argue, therefore, that even if immunity exists “in theory”, the statutory grant of power to the World Bank Administrative Tribunal excludes their claims and, accordingly, the World Bank must be held to have waived its immunity to the claims.

In Mendaro the Court of Appeals addressed the issue of waiver and concluded that the Bank’s immunity may be waived only by an express waiver on the part of the organization: “[t]he Act [the Bank’s Articles of Agreement] confers immunity ‘except to the extent that [an organization] expressly waive[s] [its] immunity for the purpose of any proceedings or by the terms of any contract.’ ” 717 F.2d at 617, quoting Restatement (Second) of the Foreign Relations Law of The United States § 84 (1965) (emphasis in original).

The relevant document here—the statute of the World Bank Administrative Tribunal—contains no “express” waiver of immunity for claims like those asserted by the plaintiffs. Rather, the statute empowers the Tribunal to adjudicate claims made by a “member of the staff” alleging “nonobservance of the contract of employment or terms of appointment____” Statute of World Bank Administrative Tribunal, Attachment F to World Bank’s initial memorandum, Article 11(1). “Member of the staff” is expressly defined to include “any person who is entitled to claim upon a right of a member of the staff as a personal representative or by reason of the staff member’s death____” Id., Article 11(3). That definition clearly covers the Chiribogas and Ms. Ruiz. It is apparent, therefore, that under Mendaro the plaintiffs have failed to establish that the Bank has waived immunity for the claims.

C.

Having determined that the plaintiffs may not properly bring suit against the Bank, it is clear that 22 U.S.C. § 286g may not be asserted as a basis for establishing subject matter jurisdiction over the complaint as filed. Because the plaintiffs’ complaint relies on section 286g to meet the requirement of complete diversity, the ruling that the Bank is immune leaves the plaintiffs without subject matter jurisdiction over any of the claims alleged in the complaint.

As a general rule, failure to establish subject matter jurisdiction will result in dismissal. In this instance, however, the jurisdictional defect in the pleadings as submitted would not entirely preclude the plaintiffs from seeking relief; the jurisdictional defect could be remedied by amending the complaint to assert claims against only the Insurance Company. Given the length of time this case has been pending, the full briefings of the parties, and mindful that it would be a relatively simple matter to amend and refile, the Court concludes that in the interests of justice and out of concern for judicial economy it is appropriate to address the defendant Insurance Company’s motion for summary judgment at this time. Justice would not be served by delaying the resolution of the claims against the Insurance Company until the plaintiffs have amended their pleadings when, as here, it is evident from the record that the Insurance Company, like the Bank, is entitled to dismissal of the claims against it with prejudice. It is, therefore, to the Insurance Company’s alternative ground for dismissal—the motion for summary judgment—that the Court now turns.

The Insurance Company contends that even if jurisdiction is proper, no genuine issues of material fact remain to be decided and that as a clear matter of contract law summary judgment should be granted in its favor. The Insurance Company argues that the insurance contract is clear on its face. The plaintiffs, they maintain, were simply not covered at the time of the accident because they were not traveling to or from a duty station “on the business of the employer.”

The plaintiffs, on the other hand, contend that the meaning of the word “travel” in the insurance contract is unclear. The Court, they argue, must permit discovery to determine what the understanding of the parties actually was at the time the contract was formed. Relying on the Bank’s “Statement of Benefits” and the Bank’s “Personnel Manual Statement,” the plaintiffs insist that the policy intended to cover “any travel away from a duty station.” Irrespective of whether benefits should be awarded, the plaintiffs contend that the issue is sufficiently confused to preclude a grant of summary judgment.

Under the strict standard established by this Circuit, a motion for summary judgment may be granted only when it is shown that there “is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law____ In ruling on a summary judgment motion, the Court must draw all inferences from the record in the light most favorable to the party opposing the motion.” Williams v. WMATA, 721 F.2d 1412, 1414-15 (D.C. Cir.1983). “To warrant summary judgment the record ‘should show the right of the [movant] to a judgment with such clarity as to leave no room for controversy____’” Weiss v. Kay Jewelry Stores, Inc., 470 F.2d 1259, 1262 (D.C.Cir.1972).

It is equally well established in this Circuit that a trial court need not consider extrinsic evidence when interpreting a contract if the contractual provision in dispute is unambiguous. Lee v. Flintkote Co., 593 F.2d 1275, 1281 (D.C.Cir.1979); E. P. Hinkel & Co. v. Manhattan Co., 506 F. 2d 201, 204 (D.C.Cir.1974); 1901 Wyoming Ave. Coop Assoc. v. Lee, 345 A.2d 456, 461 (D.C.App.1975); Holland v. Hannan, 456 A.2d 708, 815 (D.C.App.1983). Under the law of the District of Columbia the terms of an insurance policy, so long as they are clear and unambiguous, express the contract between the parties and must be enforced, unless they violate a statute or public policy. Papanicolas v. Group Hospitalization, Inc., 434 A.2d 403, 404 (D.C.App.1981); Robinson v. Aetna Life Ins. Co., 288 A.2d 236, 238 (D.C.App.1972).

Viewed against this background, it is clear that a grant of summary judgment in favor of the defendant Insurance Company is both necessary and proper. No issues of material fact remain in dispute. It is conceded by both sides that:

1. Alicia and Jesus Guevara flew to Quito, Ecuador, with tickets paid by the World Bank.

2. The trip was authorized as annual leave and home leave travel—not as business.

3. The flight to Cuenca was made without the knowledge and/or authorization of the Bank, and with tickets paid for by the Guevaras.

4. The Travel Accident Insurance Policy, as submitted to the Court, is accurate. The sole issues disputed are questions of law: whether the scope of the coverage provided by the contract is clear on its face; and if so, whether the plaintiffs were included under that coverage.

The terms of Endorsement W-l carefully set out the preconditions for the recovery of benefits. Four provisions—all cited and relied upon by the plaintiffs—are relevant for the purposes of this analysis:

[An insured employee may recover if]
IB....
1. travelling from [his] regular official station; or
2. travelling to [his] regular official station; or
3. travelling in any place in the world away from [his] regular official station; or
5. on direct travel, proceeding on or returning from officially authorized home leave or rest and recuperation leave ...
The plaintiffs argue that depending on the definition one gives to “travelling”, the deceased may have been entitled to the $100,-000 benefits. It is this “ambiguity” that the plaintiffs claim should compel the court to permit examination of extrinsic evidence.
Of the four provisions cited, the last—I B.5—is clear on its face. Because the plaintiffs were not traveling directly to or from a duty station when they were killed, this provision cannot serve as a basis for recovery.
The first three provisions, read in isolation, do not define the word “travelling”. Contrary to the plaintiffs’ assertions, however, a separate provision of the contract does define the term:
The word “traveling” shall be construed as applying only to traveling undertaken on the business of the employer and officially authorized by the employer. “Traveling” shall be deemed to have commenced when the insured person leaves his residence or place of regular employment for the purpose of traveling, whichever last occurs and shall continue until such time as he returns to his residence of [sic] place of regular employment, whichever first occurs. With respect to technical assistance experts, regular official station shall be deemed to be the Washington [D.C.] Metropolitan area.
For persons traveling or on reassignment from one location to another; ‘traveling’ shall be deemed to continue while occupying hotel rooms or other temporary quarters for a period not to exceed 30 days from date of arrival at duty station provided such temporary travel status is at the Bank’s expense and authorized by the Bank.
For persons traveling to take up employment with the Bank or on termination of employment “travelling” shall be deemed to have ceased when they have reached their temporary/permanent quarters at duty station or resettlement station at retirement, providing such travel status is authorized by the Bank and at the Bank’s expense. [Emphasis added.]

The provision simply could not be clearer. Traveling for purposes of parts I B.l, 2 and 3 only refers to traveling “undertaken on the business of the employer and officially authorized by the employer.” There is no need to look to extrinsic evidence on this issue.

Applying this conclusion to the undisputed facts before the Court, it is clear that the second issue—whether the plaintiffs were covered by the contract-—must be resolved in favor of the defendant. Alicia Guevara’s travel to Ecuador was not “undertaken on the business of the employer”. It is undisputed that the trip to Quito was authorized only as home leave and annual leave. On the day that the Guevaras were killed Alicia Guevara was on annual leave. The trip to Cuenca had neither been approved nor paid for by the Bank. Indeed, the plaintiffs do not contend that the Bank knew of the trip to Cuenca. Under these circumstances, the plaintiffs are not entitled to recover insurance benefits.

III.

For the reasons set forth above, the defendant Insurance Company’s Motion to Dismiss for failure to establish subject matter jurisdiction is hereby denied. The plaintiffs’ cross-motion to strike the defendant Insurance Company’s affidavit is also denied. Because the basis for the jurisdictional ruling rests on the finding that the Bank cannot, as a matter of law, be held liable for the causes alleged by the plaintiffs, and because the Court concludes the defendant Insurance Company has successfully established, albeit in the alternative, that summary judgment in its favor is both necessary and proper, this action is hereby dismissed with prejudice as to all defendants.

      . Under an insurance policy unrelated to the one at issue in this case, plaintiffs Carlos and Fabiola Chiriboga did in fact receive $63,000 as a result of the death of their daughter, and Sonia Chiriboga Ruiz received $31,500 for the death of Jesus Guevara.

      . This reasoning is not based solely on Broad-bent. Other decisions by this Circuit have granted immunity for similar reasons. See, e.g., Tuck v. Pan American Health Organization, 668 F.2d 547 (D.C.Cir.1981) (finding international organization immune from suit by non-employee who alleged tortious interference with contract); Kissi v. de Laroisiere (International Monetary Fund), No. 82-1267 (D.D.C. June 23, 1983) (dismissing applicant’s discrimination claim against the director of the International Monetary Fund on the ground of immunity).

      . The plaintiffs insist that they should be viewed as creditors, not employees of the Bank, and that in this capacity the denial of insurance benefits constitutes commercial activity for which the Bank is not immune. This argument is flawed in several respects. First, the Bank had no commercial dealings with the plaintiffs. The suit arises out of an alleged breach of contract between the Bank and Alicia Guevara. Second, the "commercial transactions” exception for international immunity exists only to enable the Bank to achieve its chartered objectives. Mendaro, 717 F.2d at 615, 618. Allowing employees and third-party beneficiaries to sue the Bank on matters concerning the administration of employment benefits does not enhance the Bank’s ability to perform its functions. Third, Broadbent itself involved a breach of contract action by an alleged "creditor”. The court did not find the "commercial” exception applicable. 628 F.2d at 35. Fourth and finally, as a matter of general law a third-party beneficiary stands in the shoes of the promisee and is subject to all defenses that might have been asserted against the promisee. E.g. Rouse v. United States, 215 F.2d 872, 874 (D.C.Cir.1954); 4 J. Corbin, Corbin on Contracts, 266-67 (1951). A defense applicable to a suit that could have been brought by Alicia Guevara, therefore, would also be applicable to her beneficiaries. Had she lived, the only action that Alicia Guevara could have brought to win insurance benefits would have been a breach of contract action as an employee. In no sense could such a suit be characterized as "commercial."

      . Although the plaintiffs acknowledge the existence of part I C. of the contract, their treatment of the provision is less than candid. Inexplicably, the provision is quoted and discussed without including the critical first sentence. See Plaintiffs’ Opposition to Defendant Insurance Company’s Motion to Dismiss at 4.

      . Indeed, even were the Court required to examine extrinsic evidence, it is not clear that Mendaro would expect the Court to review the Bank’s personnel manuals and policy statements as advocated by the plaintiffs. A judicial determination as to how the policy is governed by the Bank’s Personnel Manual Statement would require this Court to interpret the manual and would entangle the Court in the internal administration and personnel policies of the Bank.

      . The contract is equally clear in defining who is permitted to recover. Part I A.5 of the policy provides that spouses of employees, like Jesus Guevara, are covered only “when expenses for travel are borne by the employer.” Jesus Guevara’s flight to Cuenca was not paid for by the Bank. His claim, therefore, is doubly barred: he was neither traveling on business for the Bank, nor flying with a ticket purchased by the Bank.

      . The plaintiffs’ complaint alleges both that the Insurance Company breached the terms of the insurance contract and that it deceived the defendants into thinking that there were no restrictions or limitations on the $100,000 travel insurance awards. The plaintiffs’ second claim of misrepresentation rests on the allegation that the Statement of Benefits provided by the Bank to Mrs. Guevara was misleading. In resolving the defendant Insurance Company’s motion for summary judgment this claim need not be addressed for several reasons. First, the Statement of Benefits was written by the Bank, not the Insurance Company. As submitted, the plaintiffs’ complaint and memorandum in opposition to the motion for summary judgment do not allege with the requisite specificity, see Fed. R.Civ.P. 56, precisely how the Bank’s Statement of Benefits can support a claim of deceit against the Insurance Company. No specific factual allegations are made to support a claim that the Insurance Company "secretly” designed or authored the Statement. Indeed, the defendants’ affidavit of Lillian Reamy, submitted to support the claim of the Insurance Company that it had nothing to do with the dissemination of the Bank’s Statement of Benefits, is not countered by affidavits from the plaintiffs. The plaintiffs do contend that the affidavit fails to comply with the requirements of Fed.R.Civ.P. 56(c), but that charge is wholly without merit. The affiant testifies about matters of which she has personal knowledge, and the affidavit is credible. The minor hearsay statement contained in the affidavit is admissible under Fed.R.Evid. 803(6).
      Second, the Court has found, see supra, that the terms of the contract were clear on their face. As a practical matter, therefore, regardless what the Statement of Benefits said or which of the defendants authored it, that document was neither necessary, nor relevant, to a determination of who the policy covered. Indeed, it is highly questionable as a matter of law whether the plaintiffs could maintain a claim for deceit or misrepresentation when the underlying contract is clear on its face, and the alleged “misleading” "extrinsic” evidence does not purport to revoke the contract. In short, a claim for deceit is difficult to support where the legal obligations, as set out by the contracting party, are clear on their face.
      Third and finally, although it is possible that the Bank may in fact have misled its employees as to the scope of their insurance, as discussed supra, the Bank is immune from suit in this regard.


author: ROETTGER, District Judge.

text:
    Allen J. DeWEESE, Plaintiff, v. TOWN OF PALM BEACH, a Florida Municipal Corporation; Joseph Terlizzese, Chief of Police for Town of Palm Beach, Florida; George Mathews, Charles Warwick, Thomas Mettler, Walter Rathbun, Robert Grace, Caldwell Robinson, Paul Ilyinsky, individually and in their capacities as present or former members of the Town Council of the Town of Palm Beach, Florida, Defendants.
    No. 81-8072-Civ.
    United States District Court, S.D. Florida, Fort Lauderdale Division.
    March 30, 1985.

      James K. Green, Green, Eisenberg & Cohen, West Palm Beach, Fla., for plaintiff.
    H. Adams Weaver, Johnston, Sasser, Randolph & Weaver, West Palm Beach, Fla., for defendants.
   ORDER

ROETTGER, District Judge.

This case could appropriately be titled— with apologies to Neil Simon—Bareback in the Park. Essentially, it involves an assault by Plaintiff, a lawyer, upon the Town of Palm Beach’s ordinance which proscribes running or jogging without a shirt, or top, except on the beach or private property. Plaintiff assails this as violating his first amendment rights, as well as on other bases.

The case has had an extremely complicated procedural background and, if one looks for an aggravating cause of court congestion, this case could be a splendid illustration.

PROCEDURAL BACKGROUND

On November 19,1979, Allen J. DeWeese (“DeWeese”), an attorney, was stopped by a police officer and issued a Notice to Appear for Indecent Exposure—Lewdness for running on a public jogging and bicycle trail in the Town of Palm Beach (the “Town”) clad in running shorts but with the upper part of his body uncovered.

DeWeese is an adult male resident of the Town of Palm Beach, a Florida municipal corporation located within the Southern District of Florida. DeWeese was verbally warned by the officer on numerous occasions, and was issued one prior written warning.

State Court Proceedings

Prior to trial in state court under the first ordinance (Ordinance 21-48) as a criminal defendant, DeWeese filed a motion to dismiss on various constitutional grounds. After an evidentiary hearing, the Palm Beach County judge granted DeWeese’s motion to dismiss and struck the ordinance as unconstitutional.

The Town appealed and the Appellate Court remanded so that the constitutionality of the ordinance could be considered at a further evidentiary hearing, which was held before a different Palm Beach County judge. The Town presented testimony that the first ordinance was an adjunct to other Town regulations which assisted in the preservation of the Town’s tradition, heritage and quality of life pursuant to the Town’s goals as set forth in its Comprehensive Plan. The state judge again declared the first ordinance unconstitutional.

The Town also appealed the second dismissal order, but voluntarily dismissed the appeal prior to argument, agreeing that the first ordinance was fatally vague and over-broad, and the Town did not have an “incentive to defend vigorously” by appealing the trial court’s ruling on the ninth amendment. See DeWeese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir.1982).

The Town subsequently enacted Ordinance No. 2-81 (referred to hereafter as “this ordinance”) to amend and repeal the first ordinance.

Federal Court Proceedings

DeWeese (“Plaintiff”) brought an action in this court under 42 U.S.C. § 1983, alleging that this ordinance constitutes a deprivation of rights secured to him by the first, fifth, eighth, ninth and fourteenth amendments to the United States Constitution. The spearhead of DeWeese’s Complaint is that this ordinance violates his right to dress under the ninth and fourteenth amendments, and his right to health through athletic expression. Plaintiff seeks declaratory and injunctive relief, attorney’s fees and costs. DeWeese continues to run without a shirt in the Town on public property more than 150 feet from the beach, and alleges he fears prosecution, and asserts that this ordinance should be declared unconstitutional, or, alternatively, that Defendants should be barred from enforcing the ordinance. DeWeese named as Defendants in the instant suit the Town of Palm Beach, the chief of police, and members of the Town Council (both the members when second ordinance was adopted, as well as their successors.)

This court denied the Town’s motion to dismiss for lack of subject matter jurisdiction, finding DeWeese stated “a credible threat that he might be arrested and charged”, Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 1696, 44 L.Ed.2d 275 (1975), to give rise to an actual case or controversy. On Plaintiff’s motion for partial summary judgment, this court found DeWeese entitled to judgment as a matter of law on the basis of collateral estoppel, and, declaring this ordinance unconstitutional, ruled that this jogger can “run barebacked in the park.”

The Town appealed to the Eleventh Circuit Court of Appeals. The Court of Appeals affirmed the district court’s finding of case or controversy, DeWeese v. Town of Palm Beach, 688 F.2d at 733 n. 1., but reversed and remanded the Final Judgment and the order granting summary judgment, holding the district court “abused its discretion by applying [offensive] collateral estoppel.” Id. at 732. The Eleventh Circuit remanded with a curious comment: “to allow the Town to expend more of its resources in an attempt to prove that this most unusual statute is constitutional,” and directed the district court on remand to “decide the merits of the constitutional question without giving collateral estoppel effect to the order of the state trial court.” Id. at 732, 734.

This court, having heard argument on cross motions for summary judgment, finds as follows:

POLICE POWER

“In construing the validity of the ordinance in question, we must (1) assume that a valid ordinance was intended [and] (2) construe the ordinance to be legal, if possible to do so, and strive to so construe it as to give reasonable effect to its provisions.” City of Miami v. Kayfetz, 92 So.2d 798, 801 (Fla.1957). Governments are given broad discretion in their internal affairs, “there being a peculiar propriety in permitting the inhabitants of a City through its proper officials to determine what rules are necessary for their own local government”. Id. Therefore, in most instances, courts must refrain from interfering with the daily operation of a municipality to resolve conflicts which do not directly and sharply implicate constitutional values. See Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968).

“Municipalities may enact laws in furtherance of the public health, safety and welfare, to the extent authorized by the states,” and where a local government has the power to enact an ordinance, the legislative decision is presumptively constitutional. Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 673 (11th Cir. 1984); rev’d in part on other grounds, 742 F.2d 590 (11th Cir.1984).

In considering whether or not the ordinance is reasonable, the test is not whether the decision of the Town Council appears unwise, but whether it is rationally related to the public health, morals, safety or general welfare and promotes a legitimate municipal objective. Kayfetz, 92 So.2d at 801. Plaintiff bears the burden to demonstrate that the challenged ordinance is so irrational that it serves no legitimate municipal interest. Id. at 802.

On September 25, 1979, the Town of Palm Beach, in compliance with chapter 163 of the Florida Statutes, enacted a Comprehensive Plan with its stated objectives as follows:

To maintain the quality of life which has given the Town its unique physical and historic character and, towards its objective, to take all legally and technically available measures to stablize the Town’s land use ... and further to maintain the Town’s identity and quality of life by maintaining the Town’s unique physical and historical character with emphasis on visual qualities associated with the subtropical water oriented environment and to maintain the role of the Town as a predominantly residential community adding only the type and amount of business and other support services to provide for the needs of the Town’s residents and their visitors ...

PALM BEACH, FLA., CODE § 2-81 (1979). The Town Council received the

advice of its planning consultants and experts on maintaining land values ... that because of its unique character and history it is in the interest of the public health, safety and welfare of the citizens of the Town of Palm Beach and its visitors, in order to meet and maintain the goals of the Town’s Comprehensive Plan, to ... minimally regulate the attire of citizens and visitors within certain limited and defined areas in the town ...

PALM BEACH, FLA., CODE § 2-81 (1979). The Town’s stated interests are within the scope of authority delegated to the Town by the state and, therefore, the Town, under its police power, has the authority to enact reasonable dress regulations.

The first section of the ordinance in question, Section 3, requires a person engaged in recreational activities on public property not otherwise excluded to “have the upper part of his or her body covered in clothing appropriate to and characteristic of the recreational activity being undertaken.” PALM BEACH, FLA., CODE § 2-81 (1979). Section 3(c) specifically includes jogging and running within this category of recreational activities. Section 2 excludes from regulation not only private property, but also public bathing beaches and the immediate vicinity of public bathing beaches. Section 4 defines “beach,” “vicinity of public bathing beaches” and the phrase, “upper part of his or her body covered.” Therefore, these words and phrases have a clear meaning when read in the context of the entire ordinance.

DeWeese has not met his burden to overcome the presumption that this ordinance is reasonable, nor does this court find any basis in the record to declare the ordinance unreasonable or otherwise invalid. For the reasons stated above, this court holds that this ordinance (the second ordinance) is a reasonable exercise of the police power insofar as it relates to DeWeese, in that the requirement that runners be clothed above the waist in certain prescribed areas of the Town bears a rational relationship to Palm Beach’s general welfare.

It is necessary to consider each constitutional infringement alleged by Plaintiff to determine first, whether the Plaintiff may claim such liberty interest and, if so, whether the legislation survives the appropriate constitutional test.

RIGHT TO DRESS UNDER THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE

“Since the days of the Founding Fathers the right to dress (though not necessarily to undress) as one pleases has been regarded as a basic, if seemingly trivial, form of personal liberty, one not even requiring explicit mention in the Constitution to be recognized.” South Florida Free Beaches, Inc. v. City of Miami, Florida, 548 F.Supp. 53, 59-60 (S.D.Fla.1982).

Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976) is the principal Supreme Court opinion which addresses the issues whether there is a constitutional right to dress or liberty interest within the fourteenth amendment in matters of personal appearance, and, if so, to what extent a state subdivision may restrict that interest. Kelley distinguished the liberty interest in one’s personal appearance, from the right to control one’s own body, and concluded that the interest in personal appearance was less weighty than rights associated with procreation, marriage and family life protected under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and its progeny. Id. 425 U.S. at 244, 96 S.Ct. at 1444. The Supreme Court declined to decide whether there was some sort of liberty interest in matters of personal appearance noting that the Court’s cases offer little, if any, guidance; however, the Court assumed such a right for purposes of deciding the case, but found that assumption insufficient to carry the challenger’s claim. Id.

Similarly, this court assumes, for purposes of this decision, that there is a right to dress or liberty interest in matters of personal appearance, so that we may examine DeWeese’s claim that the due process clause of the fourteenth amendment protects his choice to go bareback or topless.

The right to dress is not a fundamental right as it is neither explicitly nor implicitly protected under our Constitution. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33, 93 S.Ct. 1278, 1296, 36 L.Ed.2d 16 (1973). The courts have found fundamental rights in cases which incidentally involved matters of personal appearance but the fundamental right attached to the first amendment right to speech, not the right to dress. See, e.g., Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Leonard v. City of Columbus, 705 F.2d 1299 (11th Cir.1983). However, as will be discussed subsequently, the liberty interest at stake in this case does not involve conduct entitled to first amendment protection.

As the right to dress is not fundamental, the heightened standard of strict scrutiny does not apply. Instead, DeWeese must demonstrate that the dress regulation imposed by the ordinance is so irrational that it may be branded arbitrary, and, therefore, a deprivation of Plaintiffs liberty interest in his personal appearance. Johnson, 425 U.S. at 248, 96 S.Ct. at 1446.

Similarly, see various Circuit Court decisions, including the following observations of Mr. Justice Stevens, while he was on the Circuit bench:

Even if we assume for purposes of decision that an individual’s interest in selecting his own style of dress or appearance is an interest in liberty ... every restriction on that interest is not an unconstitutional deprivation ... no absolute right to an unfettered choice of appearance has ever been recognized; matter of appearance and dress have always been subjected to control and regulation, sometimes by custom and social pressure, sometimes by legal rules. A variety of reasons justify limitations on this interest. They include a concern for public health or safety, a desire to avoid specific forms of antisocial conduct, and an interest in protecting the beholder from unsightly displays ... Therefore, just as the individual has an interest in a choice among different styles of appearance and behavior, and a democratic society has an interest in fostering diverse choices, so also does society have a legitimate interest in placing limits on the exercise of that choice.

Miller v. School District, Number 167, Cook County, III, 495 F.2d 658, 664 (7th Cir.1974) quoted in East Hartford Ed. Ass’n. v. Bd. of Ed. of East Hartford, 562 F.2d 838, 854-55 (2d Cir.1977).

The runner, like the policeman in Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708, has no absolute right to appear as he pleases and, therefore, “[sjtripped of constitutional protection ... [shirtless running] is subject to legitimate governmental proscriptions.” South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d 608, 610 (11th Cir.1984).

The present case before this court offers few of the justifications advanced for grooming regulations directed at policemen and teachers.

In Kelley v. Johnson, 425 U.S. at 240, 249, 96 S.Ct. at 1442, 1446, a grooming regulation directed at the style and length of a patrolman’s hair, sideburns and mustache, was held sufficiently rational to defeat a claim based on the liberty guarantee of the fourteenth amendment due process clause. The Supreme Court considered the hair-length regulation “in the context of the county’s chosen mode of organization for its police force” and concluded that the similarity of appearance fostered the “overall need for discipline, esprit de corps, and uniformity” within the police force. Id. at 246-47, 96 S.Ct. at 1445-46. The Court upheld such restrictions as a rational means of achieving legitimate objectives. Id.

In Hander v. San Jacinto Junior College, 519 F.2d 273, 275 (5th Cir.1975), the court distinguished personal appearance regulations directed at teachers from those directed at policemen and firemen, and held unconstitutional a grooming regulation requiring faculty members and all male employees of a junior college “to be clean shaven, wear reasonable hair styles and have no excessively long sideburns.”

Although plaintiff correctly asserts that the instant case involves no need for discipline, esprit de corps or uniformity that provided the legitimate objective upon which Kelley was upheld, there is a more basic difference between this ordinance and the multitude of hair and grooming regulations that have come before the courts. One forced to cut his hair or shave his beard must, necessarily, appear that way 24 hours a day, in public as well as in the privacy of his home. DeWeese, on the other hand, must be clothed above the waist only on public property within the Town that is not otherwise exempt from the dress regulation. Plaintiff may run shirtless within the Town on private property or public property at the beach or in the vicinity of the beach. Of course, Plaintiff has the unlimited freedom to run shirtless on any jogging path outside the Town so long as conformance to a dress regulation is not required.

The stated objectives advanced by the Town for the imposition of this dress code, discussed herein, were substantiated by testimony in county court. An expert community planner testified that the ordinance “taken ... as a network or a system or ordinances and controls and efforts ... is consistent with all the other things the Town is doing to maintain its visual qualities, ambience, if you will, its traditional image, so it is consistent with all the other measures taken to protect the Town’s visual quality.” Expert testimony was also received in state court from an expert real estate appraiser on the effect of not having the ordinance:

It would have an effect of erosion ... over a long period of time, the desirability of residing in that community and of the amenities that are presently offered by the community. It would be one of a number of factors that ... would proceed out of not having similar ordinances to protect those people who have invested in that community from visual nuisances. This is in keeping with the Comprehensive Plan and the proper function of a comprehensive plan and zoning ordinances.

It is sufficient to note here that the court finds the Town’s articulated goals— (1) maintaining the quality of life, (2) stabilizing land use, (3) maintaining the identity of the Town, and (4) maintaining the Town’s role as a residential community— provide a rational basis for the minimal restriction on dress. It is a matter so well known that judicial notice can be taken of the uniqueness of Palm Beach; among small cities, it truly is one of a kind.

Plaintiff has failed to meet his burden of demonstrating that the regulation is arbitrary; therefore, it should be upheld as presumptively valid and not an unconstitutional deprivation of rights guaranteed under the due process clause of the fourteenth amendment.

FIRST AMENDMENT RIGHT TO FREE SPEECH AND EXPRESSION

In addition to the right to dress, Plaintiff claims a liberty interest in running as a form of expression protected by the first amendment.

Plaintiff believes that the human body is an artistic medium, and that running, as well as other athletic activities, are art forms. DeWeese maintains that by refusing to wear a shirt, he communicates a philosophy to members of the public who observe him about health, fitness and the oneness of mind and body.

Similarly, in South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d at 609-10, where appellants asserted nude sunbathing was a form of expression advocating a freer, more wholesome lifestyle, the Eleventh Circuit affirmed the district court’s finding that the first amendment did not clothe plaintiffs with a constitutional right to sunbathe in the nude. The court recognized that “[a] distinction must be made between groups concerned with discussing and promoting a pleasurable activity and those ... merely desiring to pursue that activity.” Williams v. Kleppe, 539 F.2d 803, 806 n. 9 (1st Cir.1976) in South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d at 610-11.

The courts have delineated a speech-conduct continuum in which pure speech (spoken, written or printed) receives the highest protection, and conduct the least protection under the first and fourteenth Amendments. Midway between those two extremes lies symbolic speech, which is conduct afforded free speech protection.

Pure Speech

Pure speech, or “speech in its pristine form,” is explicitly protected under the first and fourteenth amendments. The Supreme Court has distinguished protection afforded pure speech from that afforded symbolic speech: “We emphatically reject the notion ... that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as those amendments afford to those who communicate ideas by pure speech____” Cox v. Louisiana, 379 U.S. 536, 555-56, 85 S.Ct. 453, 464-65, 13 L.Ed.2d 471 (1965) in East Hartford Ed. Ass’n. v. Bd. of Ed. of East Hartford, 562 F.2d 838, 858.

In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284, the Supreme Court found that a four-letter word was entitled to the first amendment protection afforded speech in its pristine form. Cohen was convicted of disturbing the peace for wearing a jacket with the words “Fuck the Draft” in the corridor of a courthouse. The Court held that a state may not punish the public display or underlying content of a four-letter word. DeWeese’s conduct may be distinguished from Cohen’s in that the latter criminal offense rested solely upon speech and the asserted offensiveness of the words used to convey a message to the public. Id. at 18, 91 S.Ct. at 1784. Symbolic Speech

Symbolic speech “closely akin to ‘pure speech’ ” also enjoys the protection of free speech, Des Moines Independent Community School District, 393 U.S. at 505-06, 89 S.Ct. at 735-36, but remains conduct, subject to governmental regulation. In Des Moines Independent Community School District, 393 U.S. at 505, 515, 89 S.Ct. at 735, 741 the Supreme Court stated that the wearing of black armbands by students in contravention of school regulations “to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them” constituted symbolic speech.

Similarly, in Leonard v. City of Columbus, 705 F.2d 1299, black police officers removed the American flag from their uniforms while picketing police headquarters to protest racially discriminatory practices in the city police department. The Eleventh Circuit ruled that the officers’ activities “involved conduct as well as ‘pure speech’,” but, because “their interest in expressing themselves was substantial,” the court determined “that the removal of the flag constituted symbolic speech ... protected under the first and fourteenth amendments.” Id. at 1303-4.

Conduct

Conduct, as contrasted with pure speech and symbolic speech, does not enjoy the protection of the first amendment. The Eleventh Circuit has recognized that nudity is conduct, rather than expression, and, as such, merits little, if any, constitutional protection. South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d at 609-10. DeWeese suggests that semi-nude running should enjoy at least as much protection under the first amendment as does nude dancing. Although “[ejntertainment, as well as political and ideological speech, is protected within the First Amendment guarantee,” Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981), “[m]ere nudity is ... not expressive in the sense that nudity might be in a play or work of art.” South Florida Free Beaches, Inc. v. City of Miami, Florida, 548 F.Supp. at 57. “[N]udity is protected as speech only when combined with some mode of expression which itself is entitled to first amendment protection.” South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d at 610. Accord, Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981).

DeWeese’s penchant for running without a shirt involves neither pure speech nor the type of conduct akin to pure speech that would constitute symbolic speech. Further, Plaintiff’s shirtless running is not entertainment nor is it combined with other expressive conduct entitled to first amendment protection. This court is unwilling to expand free speech to protect a jogger’s choice to go barebacked or topless.

However, even if this court concedes that shirtless running merits some constitutional protection under the first amendment, the court must balance Plaintiff’s interest in free expression against the Town’s goals in requiring runners to wear more clothes than they might care to. The dress restriction imposed by this ordinance while unappealing to DeWeese, is a rational means of promoting the Town’s goals.

RIGHT TO HEALTH THROUGH ATHLETIC EXPRESSION

The right to health, like the right to dress, is not “fundamental” in the constitutional sense and “[i]t is not the province of this Court to create substantive constitutional rights.” Rodriguez, 411 U.S. at 33, 93 S.Ct. at 1296. Nor is there any citation of legal authority presented that speaks to a liberty interest in the right to health through athletic expression.

DeWeese contends that his liberty interest in the unhindered enjoyment of his faculties includes the right to improve and enjoy his health through athletic activity such as running. Plaintiff, a champion long-distance runner who once dropped out of a race as a result of heat exhaustion, asserts that this ordinance unconstitutionally infringes on his right to health and that he cannot run on hot days if required to wear a shirt.

At a hearing on the first ordinance in state court, evidence was received that a number of runners go topless on hot days, and that the most serious incidence of heat injury for the runner results from running long distances on hot days while wearing a shirt. Gerald O’Connor, M.D., a specialist in internal medicine and nephrology, testified as an expert witness and a runner on the avoidance of heat injury. Although Dr. O’Connor suggested “that people would be better off running without a shirt” in South Florida, he could not recall any articles specifically recommending (as the exclusive prevention against heat injury) that runners run without shirts in hot climates. Instead, Dr. O’Connor summarized the articles on avoidance of heat injury to advise that the runner (1) be acclimated and in shape, (2) drink plenty of fluids, and (3) wear certain types of garments. Indeed, notice can be taken that male runners wore shirts at the recent Olympic (Los Angeles) marathon which was run on a hot day.

Even if this court concedes that there is some liberty interest in the right to health through athletic expression, this ordinance must be upheld as it satisfies the rational relationship test.

RIGHT TO EQUAL PROTECTION

The equal protection clause of the fourteenth amendment commands that no state may deny the equal protection of the laws to any person within its jurisdiction. However, the Supreme Court “has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways.” Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971).

“[E]qual protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976), per curiam. Where the ordinance involves neither situation, the rational-basis standard has consistently been applied. Id. at 313, 96 S.Ct. at 2566. As was true in the due process analysis, the classificatory scheme, as adopted by the legislature, is presumed to be valid, and, as the court is aware “that the drawing of lines that create distinctions is peculiarly a legislative task____[perfection in making the necessary classifications is neither possible nor necessary.” Id. at 314, 96 S.Ct. at 2567. “[T]he crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212 (1972).

DeWeese argues that this ordinance sets forth three classifications that deny the runner the equal protection of the law: that this ordinance distinguishes between (1) the beach or the vicinity of public bathing beaches and non-beach property, (2) public and private property, and (3) those fourteen years of age or older and those under age fourteen.

These classifications do not burden the exercise of a fundamental right nor do they operate to the peculiar disadvantage of a suspect class, therefore, the rational-basis standard, rather than strict scrutiny should be applied.

Contrary to Plaintiffs allegations, and, unlike its predecessor, this ordinance does not regulate lewdness or indecent exposure. Instead, the purpose of the ordinance is to assist in meeting the goals of the Town’s Comprehensive Plan—to maintain the quality of life within the community and preserve the Town’s unique historical and physical character.

The classifications bear rational relationships to the Town’s stated objectives as set forth in the Comprehensive Plan and the ordinance. First, the distinction between beach and non-beach property is reasonable because beachwear is commonly inappropriate away from the beach areas, and the requirement of an upper body covering in non-beach areas would similarly be inappropriate dress for men at the beach. Second, the distinction between public and private property is a correction of the predecessor ordinance which reached private as well as public areas. The last challenged classification, the distinction between those fourteen years of age or older and those under fourteen, is also upheld in its attempt to define the affected group and eliminate overbreadth problems. Defendants have correctly observed that our laws are replete with valid classifications based on age and levels of maturity (e.g. for driver’s licenses, voting, drinking, marriage, etc.), and this ordinance is not objectionable simply because of this age classification.

This court concludes that this ordinance does not deny DeWeese the equal protection of the law because all persons unclothed above the waist in areas subject to the dress requirement are treated equally, and the classifications set forth in the ordinance bear a rational relationship to the Town’s objectives.

VAGUENESS AND OVERBREADTH

Plaintiff, DeWeese, maintains that this ordinance is void for vagueness and overbreadth and must be struck down as facially invalid and unenforceable against himself or anyone else.

Vagueness

It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First ... we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.

Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). In accord, Broadrick v. Oklahoma, 413 U.S. 601, 608, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973). To challenge an ordinance for vagueness, a plaintiff must demonstrate the ordinance is vague as applied to him. South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d at 611.

Section 3 of the ordinance states:

[a] person engaged in recreational activities ... shall have the upper part of his or her body covered in clothing appropriate to and characteristic of the recreational activity being undertaken; however, the choice and style of such clothing shall be at the complete option of the individual but such clothing shall always consist of some garment.

In Section 4, “upper part of his or her body covered” is defined as “clothed above the waist in dress characteristic to the activity being undertaken” and “garment” is defined as “an article of clothing.”

Plaintiff contends that this ordinance is unconstitutionally vague as applied to him, and that the objectionable phrases “clothed above the waist” and “clothing appropriate to and characteristic of the recreational activity being undertaken,” which are undefined, offer no guidance to enable a person of reasonable intelligence to comply with the ordinance.

Initially, the court notes that Plaintiff lacks standing to challenge this ordinance as void for vagueness. Even if the outermost boundaries of the ordinance are imprecise, any uncertainty has little relevance where, as here, Plaintiffs conduct “falls squarely within the ‘hard core’ ” of the ordinance’s proscriptions. Broadrick v. Oklahoma, 413 U.S. at 608, 93 S.Ct. at 2913.

Although “[w]ords inevitably contain germs of uncertainty,” Id., the challenged ordinance, which requires that a person be “clothed above the waist” is not impermissibly vague as applied to Plaintiff, because “the ordinary person exercising ordinary common sense can sufficiently understand” that running without a shirt or top is prohibited. Id. As DeWeese was completely unclothed above the waist, he cannot now be heard to challenge the ordinance as to which anatomical parts above the waist must be covered and what articles of dress will satisfy the ordinance’s requirement of “clothing appropriate to and characteristic of the recreational activity being undertaken.” Overbreadth

An ordinance is overbroad if “it purports to reach protected as well as unprotected conduct.” Broadrick v. Oklahoma, 413 U.S. at 610, 93 S.Ct. at 2915. However,

a person to whom a statute may constitutionally be applied [cannot] ... challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court____the Court has recognized some limited exceptions to these principles, but only because of the most weighty countervailing policies ... One such exception is where individuals not party to a particular suit stand to lose by its outcome and yet have no effective avenue of preserving their rights themselves ... Another exception has been carved out in the areas of the First Amendment.

Id. at 610-11, 93 S.Ct. at 2915. These exceptions should be applied “sparingly and only as a last resort.” Id. at 613, 93 S.Ct. at 2916; Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 946 (11th Cir. 1982), cert. denied, 459 U.S. 859, 103 S.Ct. 132, 74 L.Ed.2d 113 (1982).

Plaintiff lacks standing to raise the overbreadth issue. DeWeese cannot challenge this ordinance on the grounds that it is unconstitutional as applied to him because shirtless running falls squarely within the proscribed conduct. Nor can Plaintiff challenge the ordinance on the basis that it may be applied unconstitutionally to others, as neither exception set forth in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 pertains to this situation—the ordinance does not abridge first amendment rights to speech or expression of other persons not before the court, nor is Plaintiff representing the claims of others who cannot protect their own rights.

EIGHTH AMENDMENT PROTECTION AGAINST EXCESSIVE FINES AND CRUEL AND UNUSUAL PUNISHMENT

The eighth amendment to the United States Constitution provides, “excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Plaintiff claims this ordinance is invalid because it provides a draconian fine for harmless behavior in violation of the eighth amendment since, if convicted for running without a shirt, DeWeese could be required to pay a $500.00 fine.

However, this, ordinance specifically eliminated the imprisonment provision present in its predecessor, and provides for punishment “by a fine as provided by general law for the violation of municipal ordinances.” The penalty provision which imposes the same fine as for all municipal ordinance violations in the State of Florida does not constitute an excessive fine nor cruel and unusual punishment under the eighth amendment.

CONCLUSION

In summary, this court concludes that this ordinance represents a valid exercise of the Town’s police power in that it promotes the general welfare of Palm Beach. The court has found no fundamental rights to dress, speech or health at stake in this case. However, the court has identified a liberty interest in one’s personal appearance, which, although protected under the due process clause of the fourteenth amendment, does not survive the rational relationship test which requires this court to uphold the ordinance as presumptively constitutional. Plaintiff’s shirtless running is conduct, and, as such, is not entitled to the first amendment protection afforded free speech. Nor is the alleged right to health through athletic expression recognized as a liberty interest by any legal authority. The ordinance survives Plaintiff’s equal protection challenge because the classifications employed in the ordinance bear a rational relationship to the Town’s objectives. However, Plaintiff lacks standing to challenge the ordinance for vagueness and overbreadth. Finally, the penalty provision of the ordinance does not constitute an excessive fine nor cruel and unusual punishment under the eighth amendment.

Judgment to be entered for defendant.

APPENDIX

ORDINANCE NO. 2-81

AN ORDINANCE OF THE TOWN OF PALM BEACH, PALM BEACH COUNTY, FLORIDA, AMENDING CHAPTER 21 OF THE CODE OF ORDINANCES, TOWN OF PALM BEACH, ENTITLED “OFFENSES AND MISCELLANEOUS PROVISIONS”, SO AS TO AMEND SECTION 21-48 THEREOF, “REGULATIONS REGARDING DRESS”; REPEALING ORDINANCE NO. 4-79 OF THE TOWN OF PALM BEACH; AND SUBSTITUTING THIS ORDINANCE THEREFOR: PROVIDING A PENALTY FOR VIOLATION HEREOF; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, the State of Florida by enacting Chapter 163 of the Florida Statutes has mandated that each municipality within the State of Florida assess its goals, priorities and needsd in order to preserve and enhance preent qualities, overcome present handicaps and prevent or minimize future problems by adopting a Comprehensive Plan; and

WHEREAS, Section 163.165 sets forth that the legislative intent and the provisions of the Local Government Comprehensive Planning Act in its interpretation and application are declared to be the enactment of minimum requirements necessary to promote, protect and improve the public health, safety, comfort, good order, appearance, convenience, morals and general welfare; to conserve the value of land, buildings and resources; and to protect the character and maintain the stability of residential, agricultural, business and industrial areas and to promote the orderly development of such areas; and

WHEREAS, the Town of Palm Beach in compliance with the mandate of the State of Florida did enact this Comprehensive Plan in the form of Ordinance No. 13-79 of the Town of Palm Beach, Florida, enacted September 25, 1979, with its required objectives stated, in part, to be: “To maintain the quality of life which has given the Town its unique, physical and historic character and, towards its objective to take all legally and technically available measures to stabilize the Town’s land use ... and further to maintain the Town’s identity and quality of life by maintaining the Town’s unique physical and historical character with emphasis on visual qualities associated with the subtropical water-oriented environment and to maintain the role of the Town as a predominantly residential community adding only the type and amount of business and other support services to provide for the needs of the Town’s residents and their visitors ... ”; and

WHEREAS, the Town of Palm Beach has received the advice of its planning consultants and experts on maintaining land values and said experts have advised the Town of Palm Beach that because of its unique character and history it is in the interest of the public health, safety and welfare of the citizens of the Town of Palm Beach and its visitors, in order to meet and maintain the goals of the Town’s Comprehensive Plan, to, in concert with other regulations and ordinances, minimally regulate the attire of citizens and visitors within certain limited and defined areas in the Town of Palm Beach; and

WHEREAS, the purpose and intent of the Town of Palm Beach in enacting certain minimal regulations regarding the attire of citizens and visitors is solely related to the Town’s attempt to maintain the quality of life within the community and preserve the Town’s unique historical and physical character and is not intended for the purpose of attempting to define or impose any moral code on individuals or otherwise impair or restrict individual rights not otherwise governed by the general law;

NOW, THEREFORE,

BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF PALM BEACH, PALM BEACH COUNTY, FLORIDA, as follows:

Section 1: Section 21-48 of the Code of Ordinances, Town of Palm Beach, is hereby repealed and this Ordinance shall serve in its place and stead..

Section 2: It shall be unlawful for any person to appear in any public place in the Town of Palm Beach without the upper part of his or her body covered. This section shall not apply to private property or public bathing beaches and the immediate vicinity of public bathing beaches.

Section. 3: A person engaged in recreational activities in public places and facilities in the Town of Palm Beach, where such recreational activities are otherwise permitted and which are not areas excluded from the operation of this Ordinance by Section 2, shall have the upper part of his or her body covered in clothing appropriate to and characteristic of the recreational activity being undertaken; however, the choice and style of such clothing shall be at the complete option of the individual but such clothing shall always consist of some garment. Such recreational activities and places shall include, but not be limited to:

a. Golf on public golf courses.
b. Tennis on public tennis courts.
c. Walking, bicycling, jogging, running, skating or skateboarding on Town facilities or rights-of-way where such activity is not otherwise prohibited.

Section 4: Definitions: As contained in this Ordinance the following definitions shall apply:

a. “Upper part of his or her body covered” shall mean clothed above the waist in dress characteristic to the activity being undertaken by the individual at any particular time. There are no activities for which some dress above the waist is not required.
b. “Vicinity of public bathing beaches” shall mean within 150 feet of an ocean beach.
c. “Beach”, as used in this Ordinance, shall mean the landward most portion of the sandy area adjacent to the Atlantic Ocean.
d. “Garment” shall mean an article of clothing.
e. “Person” or “individual” shall mean a male or female, 14 years of age or older.

Section 5: Penalties: Any person who shall violate any of the terms, provisions or conditions of this Ordinance shall, upon conviction thereof, be punished by a fine as provided by general law for the violation of municipal ordinances but shall not be subject to imprisonment.

Section 6: If any provision, section, paragraph, sentence or phrase in this Ordinance shall for any reason be found to be invalid or inoperative, or shall be held by any court to be unconstitutional, the remainder of the provisions of this Ordinance shall, nevertheless, continue in full force and effect.

Section 7: That all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.

Section 8: That this Ordinance shall take effect immediately upon its passage and approval, as provided by law.

      . Town of Palm Beach v. Allen DeWeese, Case No. 79-10882 MO-AOl, Palm Beach County Court.

      . A claim for an award of monetary damages was apparently withdrawn.

      . The court admits to some puzzlement as to the apparent inconsistency between “Palm Beach socks” (the cognoscenti know that means no socks) and running barebacked in the streets or through the park, with respect to the Town’s "unique ... identity and quality of life."

      . DeWeese cannot challenge this ordinance as an infringement on his right to privacy under the ninth amendment because "one loses one’s claim to privacy by acting in a place both public and in plain view of the public ... [as] the public interest may outweigh privacy on public lands." South Florida Free Beaches, Inc. v. City of Miami, Florida, 548 F.Supp. 53, 57 (S.D.Fla. 1982).

      . "[T]he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution." Rodriguez, 411 U.S. at 33, 93 S.Ct. at 1296.

      . The Supreme Court pointed out that Tinker was a first amendment case, not a right to dress case: "The problem posed ... does not relate to regulation of the length of skirts or the type of clothing, to hair style, or deportment ... Our problem involves direct, primary First Amendment rights akin to ‘pure speech.”’ Tinker v. Des Moines Independent Community School District, 393 U.S. at 508, 89 S.Ct. at 738.

      . Testimony of Mr. Adley, transcript, page 27, lines 6-12.

      . Testimony of Mr. Edgar W. Maxwell, transcript, page 46, lines 4-15.

      . In South Florida Free Beaches, Inc. v. City of Miami, Florida, 734 F.2d at 611, the Eleventh Circuit held that ordinances banning "the practice of being ‘insufficiently clothed to prevent improper exposure’ ” and statute making “it unlawful for a person ‘to expose or exhibit his sexual organs’ or to appear naked in public” were not unconstitutionally vague as applied to nude sunbathers on a public beach.

      . DeWeese questioned which of the following anatomical parts of the body are included in the phrase "clothed above the waist"—the entire torso, head, neck, arms, shoulders, abdomen, upper back, sides, ribcage and nipples. DeWeese suggests the following articles may satisfy the ordinance’s dress requirement—sweatband, visor, wide-brimmed hat, mesh singlet, T-shirt with large holes cut for ventilation, tank top exposing the abdomen, a woman’s halter top worn by a man, a transparent plastic bag with arm and head holes, and pasties (as worn by exotic dancers).

      . The undersigned judge was running or jogging fifteen to twenty years before it became fashionable. The court, therefore, personally understands plaintiffs indignation at wearing a shirt while running during the subtropical summer. Plaintiffs clear remedy is available by political means, not by litigation. The court’s findings are set forth in extensive detail in the hope of ending this matter in the courts once and for all.