HomeMy WebLinkAbout08/16/2005, BUS 7 - REPORT AND RECOMMENDATIONS REGARDING THE PUBLIC NUDITY ORDINANCE WITH OPTION TO AMEND EXISTING MUNC counat M fiwD a August 16,200
j acEnba Report
CITY OF SAN LUIS OBISPO
FROM: Deborah Linden, Chief of Police lJ
Prepared By: Ian S. Parkinson, Police Captain
SUBJECT: REPORT AND RECOMMENDATIONS REGARDING THE PUBLIC NUDITY
ORDINANCE WITH OPTION TO AMEND EXISTING MUNICIPAL CODE
PROVISIONS
CAO RECOMMENDATION
1. Receive a report regarding the effectiveness of the Public Nudity ordinance since its
adoption.
2. Take no action to amend the ordinance at this time.
DISCUSSION
Background:.
On September 7, 2004, Council adopted a new ordinance that prohibits public nudity (Municipal
,Code 9.30.010). The ordinance took effect on October 7, 2004. Violations of the ordinance are
an infraction subject to a citation. When the City Council adopted the ordinance they directed
staff to return with a progress report after the first year.,
The problems associated with flashing during Mardi Gras weekend were a significant driving
force behind the adoption of the ordinance. During Mardi Gras the purposeful acts of exposure
(flashing) become the catalyst for much more significant problems by attracting unruly crowds
intent on encouraging the behavior. As these crowds grow, their behavior becomes more
aggressive and threatening, increasing the danger for the individuals involved. In addition, it has
not been unusual for uninvolved women to be harassed and sometimes cornered in attempts to
get them to flash their breasts. These dangerous situations occurred for "many years during Mardi
Gras, and peaked in 2004. The behavior was widespread and blatant, often occurring directly in
front of police officers. Staff estimates that officers personally witnessed more than fifty separate
displays of flashing/public nudity during Mardi Gras weekend 2004. This estimate does not
include the incidents that occurred but were not witnessed by officers.
In addition to Mardi Gras weekend, the Police Department receives calls throughout the year
reporting incidents of public nudity. These incidents range from individuals purposefully
exposing themselves to being in a public place nude. For example, shortly before the ordinance
was adopted, the Police Department received a telephone call from an individual wanting to
organize a nude run through the downtown area. Without the ordinance, this activity would not
constitute a crime and we would be unable to prevent or stop such activity.
Public Nudity Ordinance Follow-up Report_ .. Page 2
Other Existing Laws:
There are two sections of the California Penal Code that may be used to enforce some behavior
that involves nudity in public. Penal Code section 314.1 defines acts of "Lewd or obscene
conduct; indecent exposure; obscene exhibitions" (a misdemeanor). There is widespread belief
that this section can be used to enforce acts of public nudity, however this is not the case. For an
act of public nudity to be considered indecent exposure as defined by this section, it must be
proved that the act was done with lewd (sexual) intent. This requires that a person (victim)
witness the act, be offended, and be willing to place the offender under private person's arrest
once an officer arrives. This rarely occurs. Penal Code section 647(a) defines lewd acts in
public, which also must be sexual in nature. Individuals who are nude in public absent lewd
intent, or who are flashing their breasts for beads during.Mardi Gras, do not meet the elements of
either section. This activity may be regulated by local ordinance.
Activity since Ordinance Adoption:
During Mardi Gras Weekend.
In stark contrast to prior years, during Mardi Gras weekend 2005, officers witnessed only one
instance of public nudity (flashing) that staff is aware of., A second incident was reported by a
citizen, however it was not observed by officers. This is a dramatic reduction from 2004 and
prior years when flashing was rampant.
It is important to note that the witnessed incident was the primary cause of the only significant
crowd gathering during Mardi Gras weekend. This incident occurred at Mustang Village when
two young women repeatedly exposed their breasts to a crowd of approximately 800 people
below. The crowd quickly grew and their chants and yelling could be heard from two blocks
away. Many groups of young people were seen running toward Mustang Village to witness the
activity. Even with swift action, it took approximately 200 police officers to disperse the crowd.
This single event nearly led to a riotous incident similar to what.occurred in 2004.
The officers were unable to issue the women citations in this incident due to the size and
disorderly demeanor of the crowd (including throwing objects at the officers). The officers used
excellent discretion by focusing their attention on dispersing the unruly crowd rather than risk
further inciting them by attempting enforcement action on the women.
Staff spoke with California Highway Patrol (CHP) Assistant Chief Dwight Goggins who was
present at both the 2004 and 2005 Mardi Gras weekends. As Council is aware, CHP has
dedicated significant resources and hundreds of officers to our Mardi Gras operation. Based on
his personal observations and those of his staff, Chief Goggins believes that many of the large
crowd problems during Mardi Gras were directly associated with public nudity/flashing.. Chief
Goggins noted the significant decrease in flashing incidents from 2004 to 2005, as well as the
corresponding decrease in large crowd gatherings and unruly behavior. He believes the Public
Nudity ordinance was a critical component of the Mardi Gras messaging and crowd control
strategies.
�-a
1
Public Nudity Ordinance Follow-up Report Page 3
Calls Received other than Mardi Gras Weekend:
Since the nudity ordinance has been in effect, the Police Department has received approximately
sixteen reports of people exposing themselves in public. This appears to be a reduction from
prior years. Fourteen of the incidents involved male offenders who were reported to be naked or
exposing their genitals in public. The calls involved behavior such as streaking, riding a bicycle
while nude, repeatedly walking nude in front of a residence, and men exposing their genitals
while in stores and other public areas. Public nudity citations were.not issued in these cases
primarily because the officers were unable to locate the offenders in most of the calls. In some of
the incidents, the officers handled the problem without taking enforcement action, or arrested the
offender for other related crimes. These statistics do not include reports of people having sex in
public places, multiple calls regarding the same offender, or calls in which it was determined
there was no crime committed.
One call worth noting was a complaint from a tenant that his landlord repeatedly sunbathed nude
in the backyard of the residence. An officer responded at the request of the tenant and
determined that no crime had been committed since the backyard was on private property and out
of public view. This was explained to the tenant and no action was taken. This demonstrates
that the ordinance is not being used to interfere with private behaviors, which was an initial
concern when the ordinance was first considered.
It is important to note that the ordinance has only been in effect for 10 months, which is a very
short time in which to measure its statistical impact especially when officers and dispatchers are
still becoming familiar with its provisions. In addition, staff's ability to accurately retrieve call
information is limited due to the way these calls are recorded and tracked in our system.
Is the Ordinance Accomplishing what was Intended?
The purpose of any law is to prevent undesired behavior and create sanctions for violators. The
best measure of success is not the number of citations written for violations of a law, but the
reduction of the behavior that led to the law in the first place. In fact, an excessive number of
citations can sometimes indicate that the law is problematic, such as the 55 MPH speed limit law.
Enforcement is one of many tools to deter the undesirable behavior.
The primary purpose of the Public Nudity ordinance was to deter acts of public nudity and
thereby prevent greater problems associated with the behavior, especially during Mardi Gras
weekend. By this measure, the ordinance has been very successful. Incidents of public nudity
since the adoption of the ordinance have dropped significantly during Mardi Gras weekend and
appear to be declining the rest of the year: Staff believes the publicity and messaging about the
ordinance, especially preceeding Mardi.Gras weekend, helped prevent the behavior. This is a
very positive outcome.
Is the Ordinance Discriminatory Toward Women?
There has been some perception that the Public Nudity ordinance only applies to women; or is
somehow discriminatory toward women. This is not the case. The ordinance applies to both
_ 'I'3
Public Nudity Ordinance Follow-up Report Page 4
men and women (albeit different parts of the body for each). Staff believes the perception that
the ordinance applies only to women is due to the focus on Mardi Gras, when acts of public
nudity are most prevalent and obvious, and are almost exclusively committed by women.
It is also relevant to examine the intent of the behavior. Unlike someone wishing to sunbathe
nude at a beach or in the privacy of their backyard, the women flashing their breasts during Mardi
Gras are doing so with the specific intent of attracting attention and of receiving something in
exchange (beads). The behavior is purposeful and designed to create a reaction from the men
encouraging it. The young women (and men) involved often have been drinking and many of the
crowd members photograph or videotape the activity. Staff has located many photos on the
Internet of young women flashing their breasts during Mardi Gras in our City. This behavior is
demeaning toward women and places uninvolved women at risk by causing them to be harassed
by crowd.members pressuring them to flash their breasts. Staff has witnessed this harassment on
many occasions.
Is the Ordinance Still Needed?
Staff strongly believes that the Public Nudity ordinance has been effective in preventing the
behavior, especially during Mardi Gras weekend when it is a critical part of our overall effort.
Although no citations were issued for violations of the ordinance during the short time since it
was enacted, the Police Department is still receiving.reports of public nudity and related behavior
that would not be illegal without the ordinance. The ordinance remains an important tool for
officers to take necessary enforcement action, especially when the conduct does not constitute a
violation of the Penal Code. Repealing or modifying the ordinance would allow situations in
which undesirable conduct could not be prevented or controlled, and it may also send the wrong
message. This is especially true during Mardi Gras weekend when the ordinance is key to
preventing problems and crowd-related violence. It is still very early in the process to end the
violence associated with Mardi Gras weekend and it will take several years of concerted effort to
accomplish Council's goals, especially if the Mardi Gras parade returns. The Public Nudity
ordinance is a necessary and important strategy in this process.
Options for Council:
Based on prior Council discussions, staff recognizes there may be some concern about the
ordinance, especially during periods of time other than Mardi Gras weekend. In order to provide
Council with alternatives should Council wish to reconsider the ordinance, staff has prepared the
following three options:
Option I —Retain the Ordinance and Consider Again in One Year. Since this ordinance is so
new, it may be beneficial to continue to evaluate its need and effectiveness for another year prior
to deciding whether to maintain it or modify it. Staff would record the appropriate statistics and
report back to Council around this same time next year.
Option 2—Modify the Ordinance to be In Effect at Council Direction: Although staff believes
the Public Nudity ordinance is needed year-round, we also recognize that the most critical need is
during the Mardi Gras period when incidents of exposure cause much more serious problems and
�� i
I
Public Nudity.Ordinance Follow-up Report_ Page 5
increase risk for people, including those not involved in the behavior. If Council does not feel
the ordinance is needed year-round, it could modify the ordinance so that it would only be in
effect during time periods specified by Council resolution or ordinance (i.e. during the Mardi
Gras period). This is the same approach Council took when it enacted the Safety Enhancement
Zone ordinance.
Should Council select this option; staff recommends modifying the ordinance and adopting a
resolution making the ordinance effective during the Mardi Gras period (from the Thursday
before "Fat Tuesday" through the Wednesday following "Fat Tuesday"). A new (modified)
ordinance is attached to this report, along with the appropriate resolution.
Option 3 – Eliminate the Ordinance: This option is not recommended. Eliminating the
ordinance would significantly impact our ability to prevent and control crowd-related problems
during Mardi Gras weekend, and would eliminate an important enforcement tool available to
officers year-round when faced with public nudity offenses. It may also inadvertently send.the
message that public nudity and flashing are now acceptable behaviors in San Luis Obispo.
CONCURRENCES
The City Attorney concurs with this report.
FISCAL IMPACT
There are no direct fiscal impacts associated with any of the options outlined in this report.
ALTERNATIVES
Staff has outlined three options for Council to consider. Council can also direct staff to pursue
other options or modifications.
ATTACHMENTS
1. Modified Public Nudityordinance (option 2).
2. Resolution enacting the Public Nudity ordinance during a specified period of time
corresponding with Mardi Gras weekend and"Fat Tuesday" (option 2).
/7
�■ erwIIon 2.911
Attachment, "'
ORDINANCE NO._(2005 Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO
AMENDING CHAPTER 930 OF THE SAN LUIS OBISPO MUNICIPAL CODE
LIMITING THE APPLICATION OF THE CHAPTER TO TIME PERIODS TO BE
SPECIFIED BY CITY COUNCIL RESOLUTION
WHEREAS,displays of public nudity during certain time periods and/or events
within the:City encourage the-gathering of crowds and'create the potential for incidents of public
disorder that.threaten the public safety and welfare;and
WHEREAS, the prohibition of public nudity during certain time periods and/or
events provides the City and law enforcement with an important tool to prevent and address such
threats to the public safety and welfare;
WHEREAS, the City's current ordinance prohibits public nudity without
limitation as to time;and
WHEREAS, Council desires to protect the health safety and welfare of the
residents of;and visitors to,San Luis Obispo by the least restrictive effective means;
NOW,THEREFORE,BE IT ORDAINED by the Council of the City of San Luis
Obispo as follows:
SECTION I. Chapter 9.30 of the San Luis Obispo Municipal Code is hereby amended
to read as follows:
Chapter 9.30
NUDITY IN PUBLIC PLACES
9.30.010 Nudity prohibited in any public place during specified times.
9,30.010 Nudity prohibited in any public place during specified times:.
It shall be an infraction for any person to appear nude in any place within.the city
open to the public;or any place visible from a place open to the public,at any time period during
which the city council determines, by resolution, that such conduct is likely to create the
potential for incidents of nublic disorder or to threaten the public health. safety or welfare.
"Nude" within the meaning.of this section means the absence of an opaque covering which
covers the genitals, pubic hair, buttocks, perineum; anus or anal region of any person or any
portion of the breast at or below the areola thereof of any female person. (Ord. 1456 § 1 (part),
2004)
�iV
Al IAUMMENT I
Ordinance`No._(20Q- Series) - oeiebed
Paget -;
SECTION 2. A.summary of this ordinance,approved by the City Attorney,together
with the narires of the Council members voting for and against it,shall be published.arleast five
days prior to its final passage,.in The Tribune,a newspaper published and circulated in this City.
This ordinance will go into effect at the expiration of thirty(30)days after its final passage:
INTRODUCED on the 16ffi day of August,2005,and adopted by the Council of the City
of San Luis Obispo at a meeting held on the _ day of _, 2005, upon motion of
seconded by and on the following roll call vote:
AYES`.
NOES:
ABSENT:
David F.Romero,Mayor
ATTEST:
Audrey Hooper -- --
City Clerk
APPROVED AS TO FORINT:
Jonathan P.Lowell
City Attorney
1/�
ATTACHMENT 2
Attachment #
RESOLUTION NO. (2005 Series)
AN RESOLUTION OF THE CITY COUNCIL.OF THE CITY OF SAN LUIS OBISPO
MAKING SAN LUIS OBISPO MUNICIPAL CODE SECTION 9.30.010 PUBLIC
NUDITY PROHIBITION AND PENALTY EFFECTIVE DURING THE EXTENDED
MARDI GRAS WEEKEND (12:01 AM ON THE THURSDAY PRECEDING"FAT
TUESDAY"UNTIL 7:00 AM ON THE WEDNESDAY FOLLOWING"FAT TUESDAY"
OF EACH YEAR)
WHEREAS, during Mardi Gras, San Luis Obispo is the site of numerous large
parties, with throngs of young people traveling between them, often under the influence of
alcohol; and
WHEREAS, displays of public nudity jassotciat.ed with or occurring during the
time period of Mardi Gras have encouraged the gathering and incitement of large crowds; and
WHEREAS, the conduct of crowds congregating to view and encourage such
displays create the potential for incidents of public disorder that threaten the public safety and
welfare; and
WHEREAS, the prohibition of public nudity during the time period in which the.
majority of Mardi Gras related events and gatherings generally occur will provide the City and
law enforcement with an important tool to prevent and address potential threats to the public
safety and welfare and to maintain the public peace; and
WHEREAS, San Luis Obispo is a charter city with the authority to adopt
ordinances and resolutions governing matters pertaining to municipal affairs, and the provisions
of this resolution are designed to protect the health safety and welfare of the residents of, and.
visitors to, San Luis Obispo.
NOW,THEREFORE,BE IT RESOLVED by the Council of the City of San Luis
Obispo as follows:
SECTION 1. The prohibition of and penalty for public nudity set forth at Section
9.30.010 of the San Luis Obispo Municipal Code shall be in full force and effect from 12:01 AM
on the Thursday preceding "Fat Tuesday" until 7:00 AM on the Wednesday following "Fat
Tuesday" during each year following the adoption of this resolution, unless revoked by the City
Council by resolution.
SECTION 2. This resolution will go into effect (30) days after final passage and upon
the effective date of Ordinance No. --__ _ _ _, amending Chapter 9.30 of the San Luis Obispo
Municipal Code.
On motion of_ __ _ ___ __ ._, seconded by ___ , and on the following
roll call vote:
1A
RESOLUTION No. __ _. (2005 Series)
- ' ATTACHMENT 2
Page 2
Ayes:
Noes:
Absent:
the foregoing Resolution was passed and adopted this day of , 2005.
David F. Romero, Mayor
ATTEST:
Audrey Hooper
City Clerk
APPROVED AS TO FORM:
J Cntkt an P. Lowell
City Attorney
SLO Citycouncil - Fw: Poly Gras- caut, explicit photos
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From: "Brett_ Cross" <brettaoss@charter.net>To: "City Council" <slocitycoundl@slocity.org>Date: 8/16/2005 12;43 PM C
Subject: Fw: Poly Gras-caution explicit photos
I sent these to Rob Bryn back in February as you can see. I'd suggest you
not re-evaluate the current ordinance. Pretty amazing given the person who
sent me these way back in February is my age and lives in Concord
California. I'm certain he wasn't out searching for Mardi Gras pictures but
the link was sent to him by someone else who knows he use live in San Luis
Obispo and went to Cal Poly.
Brett Cross
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-- Original Message-- �fCO UNCI� 'CDD DO
From: "Brett Cross" <brettcross@charter.net> P CP,O ,ErFIN DIR
To: <rb n@slog, or > 'AC.aOFIRE CHIEF''
Sent: Thursday, February 17 2005 9:33 PM ATTORNEY ,�ff, PO DIR
ry �CLERKIORIG e! POLICE CHF
Subject: Poly Gras- caution explicit photos 0 DEPT EaDS �REC DIR
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>This is nice. I'm being sarcastic. A friend sent me this from the Bay
Area.
>
> Brett
>
> http://www.polygras.com/images/boobsshow/index.htm
SLO Citycouncil - Here was a follow-up email I sent
From: "Brett Cross" <brettcross@charter.net>
To: "City Council" <slocitycoundl@slocity.org>
Date: 8/16/2005 12:44 PM
Subject: Here was a follow-up email I sent
-----Original Message ---- RED FILE
From: "Brett Cross" <brettcross@charter.net> MEETING AGENDA
To: Robert Bryn <rbryn@slocity.org> DATE-I"`�zNGITEM #
Sent: Monday, February 21, 2005 12:01 PM
Subject: Re: Poly Gras-caution explicit photos
> Here's my thought. Create an ad based on the credit card advertisements.
> Could go like this. Value of Mardi Gras beads for showing breasts- $5.
Cost
> of Triple.Fines by the City of San Luis for showing breasts- $875
> whatever the price would be). Having your parents find out that their
> daughter's breasts are all over the internet=- Priceless. Use their
> pictures in the ad with the chest area fuzzed out. That would send a nice
> subtle message and scare the crap out of those girls and make others think
> about it next year:
> Brett
Page 1 of 2
RECL. . D
Ken Hampian - Public Nudity Ordinance AUG 1 6 2005,
From: Sandra Rowley <macsar990yahoo.com>
To: Dave Romero <dRomero@SLOcity.org>, Alan Settle <aSetde@SLOcity.org>, Paul Brown
<pbrown@slocity.org>, John Ewan <jEwan@SLOcity.org>, Christine Mulholland
<cMulholland@SLOcity.org>
Date: 8/16/05 12:28PM
Subject: Public Nudity Ordinance
CC: Ken Hampian <kHampian@SLOcity.org>, Deb Linden <dlinden@slocity.org>
Dear Mr. Mayor and City Councilmembers,.
Please keep the Public Nudity Ordinance (9.30.010) in place—just as it.
is written. Eliminating it now could be interpreted as condoning.behaviors RED FILE
that foster the creation of crowds and the rowdy behavior of those crowds. MEETING AGENDA
If you wish to review the ordinance at a later date, please wait 3 - 5 DATE9",,0 ITEM # �
years to do so. By then, sufficient data should be available to see if it
has been a valuable enforcement and deterrent tool or not.
One of the actions prohibited by the ordinance is flashing. Flashing is
not about:
1. Dress standards,being established or dictated.
2. Breast feeding. 5iMOUNC I CDD DIR
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3: Nude sunbathing. C;-ACAO FIRE CHIEF=
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4. Equal rights or women's rights or any other social/political -e!'CLERK/ORIG Zf POLICE CHF
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Flashing is an action taken by women with the specific intent of =—�= — !I IR DIR
provoking a reaction in men. It is about the power to attract a crowd and to
make that crowd behave stupidly.
There is enough rowdy behavior and vandalism in San Luis Obispo without
tacitly condoning an action that, by its nature, provokes and promotes rowdy
behavior. For this reason I request you keep the ordinance in force
year-round.
The fact that our Police Department has not applied the law in 2005 is
an enforcement issue. That the women referred to in paragraph 3 of page 7-2
of the report were not subsequently cited is a matter that the Chief of
Police needs to address with her officers.
Thank you for your time and consideration.
Sincerely,
Sandra Rowley
file://C:\Documents%20and%2OSettings\slouserU,ocal%2OSettings\Temp\GW}000O1.HTM 8/16/2005
08/16/2005 10:43 8054735161 021 ASSOCIATES WEST PAGE 02
• RECEIVED
AUG 16 209
SLO CITY CLERK-
August 16,2005
RE:Anti Nudity Ordinance
Dear SLO City Council,
Attached is a copy of my letter I read to your council.last year. I understand the Anti
Nudity ordinance is up for review and will not be able to attend tonight's meeting
I feel
the same issues which I highlighted in the letter.hold true today as well. Even the police
admit the ordinance as'it is written is deficient but adhere to the argument that"police
discretion"makes this sk appropriate law. I beg to differ. In a democratic society the
police have and need direction and guidance. Open-ended laws relying upon`-Police
discretion"are not acceptable-as this allows for abuse and discrimination. Thus we.have
many court decisions overturning laws,which are passed that,are not specifically
addressing the real.problem. There is a reason why police need search warrants before
searching citizen's homes(this is but one example).
I wish to once again emphasize the problem_ is crowd control during Marti Gras
Celebrattion which only occurs once a year for a short period of time. Thus I would
e
in
encourage the council to do away with oris unnecessary and possibly
illegal ordinance
favor of addressing the real issue,which is abusive and inappropriate behavior by a
minority of young adults consuming massive amounts of alcohol.
Thanks for your time and consideration:.
Respectfully,
RED FILE Alec Casanova
Office: 805 473.0808 ext.222
MEETING AGENDA
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08/16/2005 10:43 8054735161 C21 ASSOCIATES WEST PAGE 03
[R:ECEIVE,D
269 i
August 31,2004 LERK
RE: Proposed Anti Nudity Ordinance
Dear SLO City Council,
Hello. My name is Alec Casanova and.I am one of the three speakers who spoke in
opposition to the proposed anti nudity ordinance at your August 17s'meeting. After
thinking about what transpired and rereading the police justification for the ordinance I
am convinced the only issue here is crowd control during the Marti Gras celebration. I
since have also become aware the Marti Gras is a highly charged emotional issue in SLO
and people are passionately divided regarding this matter. I respectfully remind the
reader of the truism"the first casualty of war is the truth". This ordinance is obviously
not in response to any major problem with public nudity in SLO but indicates a grasping
at straws solution to the real problem of crowd control. In other words nudity has
become a convenient scapegoat:
It is no secret the problems associated with Marti Gras are created by young adults
consuming massive amounts of alcohol. How can we intelligently discuss real solutions
if we do not focus upon the real problem? Can you imagine a policeman wading through
a drunken crowd to give someone a ticket for"flashing"? This would probably create
more hysteria and cause more problems than it would solve.
In conclusion the following points will c„rnm *+ze the above discussion.
1. I urge the Council to table this ordinance in favor of a rational discussion to find a
real solution to the real problem of crowd control. There are cities that do have
successful Marti.Gras celebrations.
2. Targeting women for the misbehavior of men is morally,ethically, and legally
wrong:
3. Solutions should focus on the particular time and place of where problems occur.
For example if there is a parking problem in a specific area or at a specific time
ss
we do not paan all encompassing city wide law for all places 24 hours a day.
Instead we analyze the situation and limit the law to the appropriate area and time
frames.
4. Is it the Councils intent to criminalize walking nude in ones own house if
someone passing on the street happens to view the individual? This is afar
distance from the original purpose of the ordinance: crowd control during Mardi
Gras.
Re�spff tfully,
G �.
RED FILE Alec Casanova -3-COUNCILTCDD DIR
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