HomeMy WebLinkAbout08/17/2004, PH4 - INTRODUCE AN ORDINANCE PROHIBITING NUDITY IN PUBLIC council W6,Da
August 17,2004
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C ITY O F SAN L U I S O B I S P O
FROM: Deborah Linden, Chief of Police
Prepared by: Daniel R. Blanke, Police Captain
SUBJECT`. INTRODUCE AN ORDINANCE PROHIBITING NUDITY IN PUBLIC
CAO RECOMMENDATION
That the City Council introduce a new ordinance adding Chapter 9.30 to Title 9 of the San Luis
Obispo Municipal Code prohibiting nudity in public.
DISCUSSION
The City of San Luis Obispo currently does not have an ordinance prohibiting public nudity.
The only law that applies in very limited circumstances is California Penal Code Section 314
(Indecent Exposure — 314 PC), which makes it unlawful (misdemeanor) for any person to
"willfully and lewdly" expose the private parts of his or her body in any public place. Willfully
and lewdly means to do so with "the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of the persons involved." (In Re Smith (1972) 102 Cal.Rptr. 335, 337.)
As such, it is currently not illegal under California law for a person to appear nude in public, as
long as it is not done "lewdly". For purposes of this report, public nudity will refer to the
intentional display of the private parts of a person, including the genitals of both men and
women, and the breasts of women.
Consistent with Council direction to bring forward multiple strategies for addressing Mardi,Gras
related concerns, the Police Department (SLO PD) has identified a need for an ordinance
prohibiting public nudity in our City. The proposed ordinance would make it an infraction for
any person to appear nude in any public place, or any place open to the public or visible from a
public roadway, sidewalk, or area. Appropriate exceptions are contained in the proposed
ordinance to exclude prepubescent children, women who are breast-feeding infants, and
theatrical performances.
How significant is the problem in San Luis Obispo?
Mardi Gras:
Although the Police Department responds to complaints of public nudity throughout the year,
most of the problems with public nudity occur during the Mardi Gras weekend when young
women purposely expose their breasts in exchange for Mardi Gras beads, or because of extreme
crowd pressure. This behavior has resulted in crowd control problems, aggressive behavior and
creates an unsafe situation for the people involved, especially the women. In addition, women
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PROHIBITION OF NUDITY IN PUBLIC Page 2
who are not involved in the behavior are frequently harassed by young men trying to get the
women to expose themselves.
San Luis Obispo's experience with the problems associated with individuals exposing
themselves during Mardi Gras is not unique. In 2001, a Mardi Gras Summit was held in Seattle,
Washington, prompted by the violence that had erupted at Mardi Gras events throughout the
country. Officials from agencies throughout the Pacific Northwest attended, as well as from
Austin, TX, Fresno, CA, and Philadelphia, PA. The attendees identified twenty common factors
that contributed to the Mardi Gras violence in all of the jurisdictions; Women exposing their
breasts was one of the factors. According to the final Mardi Gras Summit report, "A lot of the
problem spots were in the crowds where women were exposing themselves to get Mardi Gras
beads."
San Luis Obispo's problems with flashing during Mardi Gras have been going on for more than
five years, peaking during the 2001 nighttime parade. A public nudity ordinance was considered
in 2002,however the idea was put on hold when the decision was made to move the parade to the
daytime in 2003 in order to see if the problems were reduced.
Fewer incidents occurred during and immediately after the parade, primarily due to lower levels
of alcohol intoxication and the lesser degree of anonymity provided during daylight hours.
Nevertheless, significant public safety problems related to nudity continued to occur. In 2003 and
2004, Mardi Gras grew into a five-day event in San Luis Obispo, from Friday night through Fat
Tuesday. The tradition of flashing permeates the entire Mardi Gras weekend, with women who
are waiting in lines to get into downtown bars exposing their breasts to passing cars and
pedestrians. On a number of occasions, this activity has nearly caused traffic accidents on
Higuera Street.
As the size of the crowds, and the unruly behavior, also grew in the residential neighborhoods
near Cal Poly, flashing became an increasing problem. Large crowds would gather around
young women flashing their breasts, growing more and more aggressive and agitated and fueling
the behavior of others in the crowd. For example, on February 21, 2004, just before the riot
started, a SLO PD officer observed a woman sitting on the shoulders of another individual and
exposing her breasts to those around her. The behavior caused the crowd around the woman to
quickly grow and become very excited and agitated, which contributed to the major disorder that
immediately followed at the same location.
The problems associated with the flashing were chronicled in various "weblogs," online diaries
written by individuals in the days after the riot. The following is an excerpt from a weblog found
during an Internet search:
"Because Cedar Creek was closed (the usual Mardi Gras hotspot), everyone was running
around in the streets. Traffic was stopped in all directions and being diverted away from the
crowd of about 1000. We were standing on the corner next to mounted police and SWAT
personnel watching the partying. A girl was lifted up and she readily exposed
herself...Drunken partiers were trying to play 'bead the police' and were throwing beads at
them...girls were getting up on balconies and showing off their boobs. The crowd responded r�
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PROHIBITION OF NUDITY IN PUBLIC Page 3
with 'show us your tits' ...In the meantime, the crowd began throwing beer bottles at the
police... "Posted February 22,2004 at 12:43 PM
The disturbing environment that flashing creates for women is illustrated in the following excerpt
from the March 17, 2004 of Cuesta College's newspaper, The Cuestonian:
"I was very distraught, " Cuesta college student Heather Landis said. "Men turn into
animals and women become passive to what is going on. As much as I enjoy Mardi Gras, I
wish it was not about pathetic young guys trying to see breasts... "
Over the years, this growing trend associated with our Mardi Gras event has fed into the
perception of San Luis Obispo as the "the place to be" over Mardi Gras weekend, and has
certainty helped to attract unwelcome crowds to our community over the weekend.
The public nudity ordinance being proposed would give officers a valuable tool to stop the
behavior as soon as it occurs and before it attracts large unruly crowds. The ordinance would
also act as a preventative measure since many individuals will choose not to expose themselves if
they know it is illegal and they could be subject to a citation.
Non Mardi Gras—related Incidents:
While Mardi Gras is certainly the period when incidents of public nudity are the most prevalent,
the Police Department does receive complaints of public nudity throughout the year. These
incidents range from individuals purposefully exposing themselves or masturbating in public, to
individuals being in a public place nude. Many of these incidents do not fit the elements of 314
PC, or lack a victim who is willing to place the offender under private person's arrest when the
officer did not observe the behavior. For example, SLO PD was recently called to a shopping
center parking lot on a report of a man exposing himself. The responding officers found the man
sleeping on the front seat of his car in the public lot, in plain view of anyone walking past the car.
The man was not wearing pants and his private parts were fully exposed. Because officers could
not prove lewd intent, no existing law applied to the situation. Nevertheless, the man's actions
were shocking and offensive to those who saw him. The nudity ordinance being introduced
would provide a means of enforcement in such situations.
Ordinances in other communities:
Many cities and counties throughout the state have public nudity ordinances, including the cities
of Berkeley, Fremont, Chico, Burlingame, and Chula Vista, as well as Santa Barbara and San
Diego Counties. The draft ordinance being introduced is based on the City of Berkeley's
ordinance. San Luis Obispo County does not have such an ordinance, nor do the other cities in
the county. Cal Poly and Cuesta College both have codes of conduct that prohibit public nudity
on campus and at campus-sponsored events, and students who violate this regulation are subject
to discipline.
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PROHIBITION OF NUDITY IN PUBLIC Page 4
Penalties for violating the ordinance:
The City Attorney's Office would be responsible for prosecuting violations. The proposed
ordinance is an infraction, and violations carry the following penalties, per section 1.12.040 of
the SLO City Municipal Code:
First offense: $100 fine
Second offense within 1 year: $200 fine
Third or more offenses within 1 year: $500 fine
In addition, the City Attorney has the option of prosecuting a violation as a misdemeanor if the
same individual commits three or more violations, or if the seriousness of a particular violation
warrants it.
CONCURRENCES
The City Attorney concurs with the recommended action.
FISCAL IMPACT
There are no fiscal impacts associated with this proposed ordinance.
ALTERNATIVES
Decline to adopt the ordinance. This action is not recommended since this ordinance will
provide our police officers with a key tool to help control unruly crowd behavior during Mardi
Gras, and address other problem behavior when complaints are received throughout the year.
ATTACHMENTS:
1) Draft Ordinance adding Chapter 9.30 to the Municipal Code
ORDINANCE NO. (2004 Series)
AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS
OBISPO ADDING NEW CHAPTER 9.30 TO TITLE 9
OF THE SAN LUIS OBISPO MUNICIPAL CODE PROHIBITING NUDITY IN PUBLIC
BE IT ORDAINED by the Council of the City of San Luis Obispo as follows:
SECTION 1. Chapter 9.30 is hereby added to the San Luis Obispo Municipal Code to read as
follows:
Chapter 9.30
NUDITY IN PUBLIC PLACES
9.30.010 Nudity prohibited in any public place.
It shall be an infraction for any person to appear nude in any place open to the public or any place
visible from a place open to the public. "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.
9.30.020 Exceptions..
The provisions of this chapter shall not apply to:
A. Any person ten years old or younger.
B. Any female exposing her breast to the extent such exposure is necessary to breast-feed a
child.
C. Performers who are engaged in live theatrical performances performed in a theater, concert
hall or other such establishment which is primarily devoted to theatrical performances.
SECTION 2. A summary of this ordinance, approved by the City Attorney, together with the
names of the Council members voting for and against it, shall be published at least 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 17th day of August, 2004, and adopted by the Council of the City of San
Luis Obispo at a meeting held on the_day of , 2004, upon motion of seconded by
and on the following roll call vote:
i
AYES:
NOES:
ABSENT:
Mayor Dave Romero
ATTEST:
Diane Reynolds, Acting City Clerk
APPROVED AS TO FORM:
nathan Lowell, ity Attorney
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ME, I �G, AGENDA
® T\A J ITEM # _ AUG 7 2004
August 17, 2004 SLO CITY CLERK
Dear Honorable Council Members of the City of San Luis Obispo:
The Naturist Society is a national organization that supports and promotes body freedom and
body acceptance through nude recreation, http://www.naturistsociety.com/. The Naturist Action
Committee is the political are of The Naturist Society, httl)://www.naturistsociety.com/. We
work to protect the rights of naturist throughout North America.
As a preliminary matter, please understand that"breast flashing" at events such a Mardi Gras
parades etc. for the delight and entertainment of crowds is not something that naturist practice,
nor does such behavior reflect naturist values. While we understand the Cities need to control
unruly behavior during the Mardi Gras parade, a complete, Citywide ban on all public nudity is
not the answer. It is tantamount to using a cannon to kill a bothersome fly. Therefore we wish to
express our opposition to proposed ordinance 9.30.
The proposed ordinance has some initial problems, even without considering its overall
necessity. First, it would ban exposure of the buttocks. Besides being vague, (how much of the
buttocks could be legally exposed?)this would prohibit the wearing of modern thong style
swimwear.
Second, prohibiting exposure of"...any portion of the breast at or below the areola thereof of
any female person" is discriminatory toward women and is open to challenge under the U.S.
Supreme Court decision in the Virginia Military Institute case or California Constitution.
Additionally, including this language would prohibit most women's swimsuit tops as well as a
lot of ladies eveningwear. Many states, cities and counties have adopted statutes and ordinances
with the same or similar language. However, these provisions of the law are virtually never
enforced without exposure of the entire breast. The City Council should refrain from enacting an
ordinance it has no intention of enforcing.
Many states don't criminalize exposure of the female breasts (California for example) while
others provide constitutional protection for female topfreedom, the same as for males (New
York).
Third, the language"place open to the public or any place visible from a place open to the
public" is extremely broad. This would criminalize back yard nude sunbathing if someone in a
public place somewhere could possibly view the nude persons on their own private property.
This would also prohibit legitimate naturist events, and have a chilling.effect on nude political
protests such as the recent World Naked Bike Ride to protest dependence on oil.
Social attitudes about public nudity are changing. In 2000, the Naturist Education Foundation
commissioned a Roper poll to gage the change in public attitudes toward nude sunbathing.
Without going into detail here, the results of that poll can be seen here: InAup �
http://www.nef.oshkosh.net/Projects/NEF-Roper_Poll/nef-roper poll.htmlourIcIL ' �"yC"DD DIR
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This proposed ordinance would only serve to perpetuate the myth that the human body is dirty
and something to be ashamed of.
Public Nudity takes place increasing frequency in U.S. with no problems, except where
excessive drinking present. Examples of peaceful occurrences of public nudity included the
annual Bay to Breakers Run/Walk in San Francisco, the World Naked Bike Ride,the Seattle
Solstice Festival, the Burning Man Festival, and at Clothing-Optional beaches all along the
coasts of our great State. The common thread of violence associated with any form nudity is
public drunkenness. In fact, public drunkenness causes plenty of violence without any nudity or
"flashing" involved..
Other cities have had similar problems that were claimed by the police to be cause by "flashing."
However, some of these cities have been able to control crowds without passing anti-nudity
ordinances. Most notably is the city of Huntington Beach, California, where the July 4t' crowds
rioted for a few years.Through effective use of existing appropriate California Penal Code
sections, and good police work, they have had several years of relatively peaceful July 4`h
holidays, with out prohibiting public nudity.
The following California Penal Code Sections are available to Peace Officers to control crowds:
• 647 (f)Public intoxication (Misdemeanor).
• 148 (a) (1) Resisting a Peace Officer(Misdemeanor).
• 404.6 (a) Incitement to riot.(Misdemeanor).
• 405 Participating in a riot (Misdemeanor).
• 405(a) Lynching (Felony).
• 406 Rout (Misdemeanor).
• 407 Unlawful assembly (Misdemeanor).
• 409 Remaining present at a riot, rout or unlawful assembly (Misdemeanor).
• 416 (1)Fighting in public or challenging a fight in public. (Misdemeanor).
• 416 (3)Fighting words (Misdemeanor).
• 243.4 Sexual battery (Misdemeanor or felony depending on circumstances).
It must be remembered as well, that City Council has a duty to represent all citizens including
those whose lifestyle choices they might personally disagree with, such as naturists.
On half of all of the residents of you city who hold naturist values and abhor excessive
government control, we urge you to vote against passage of this proposed ordinance, or at least
delay any action until such time as all viable alternatives that will fit the City's needs while
respecting the rights of the people have been explored.
Thank you for your thoughtful consideration,
R. Allen Baylis
Director, Naturist Action Committee
council m e m o Ra n b u m
city of 9ar5 WIS osis o. k6fin staation of ifitfii 5t
DATE`. August 17, 2004 RECEIVED
TO: City Council AUb 17 2004
VIA: Ken Hampian, CAO SLO CITY CLERK
FROM: Deborah Linden, Chief of Police
SUBJECT: Correction to Council Agenda Report—August 17, 2004; Item PH4
Introduce an Ordinance Prohibiting Public Nudity
In the agenda report for item PH4, scheduled for tonight's Council meeting, I listed the City of
Chico as a jurisdiction that had an ordinance prohibiting public nudity. At this morning's agenda
review meeting, City Attorney Jonathan Lowell said that he had received information indicating
that Chico did not have such an ordinance. Captain Blanke subsequently checked with the Chico
Police Department and confirmed that Chico does not have an ordinance prohibiting public
nudity.
The notation about Chico is on page 4-3, in the section titled"Ordinances in other communities,"
line 2 of the agenda report for item PH4. I apologize for any inconvenience this error may have
caused.
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Public Nudity Ord Red File
Message Page 1 of 1
i
SLO Citycouncil- Proposed anti-nudity ordinance, Chapter 9.30
From: "Donald F Stanton" <dfsI @comcast.net> AU6 17 2004
To: <slocitycouncil@slocity.org>
Date: 8/17/2004 12:32 PM SLO CITY CLERK
Subject: Proposed anti-nudity ordinance, Chapter 9.30
Honorable Council Members:
Please consider delaying or defeating the introduction of proposed ordinance 9.30, "Nudity In Public
Places" at your August 17 meeting.
As it is currently worded, your proposed ordinance is capable of being interpreted so as to allow its
application to the grounds and other private places of your citizens. In addition, the ordinance is capable
of being interpreted so as to preclude the wearing of modern style swimwear and evening dress.
Further, the ordinance is capable of being interpreted so as to create a unconstitutional discrimination
against female persons. This issue,in particular, is the subject matter of current litigation in other parts of
our country.
Finally, it appears that your objectives can be accomplished by using provisions of state law. I suspect
that your municipal code offers the same opportunity. The proposed ordinance also presents
management and budget consequences that make its adoption questionable as a matter of good
management.
My apologies for the lateness of this communication, but I first learned of this proposed ordinance at
10:00 P.M. last evening. For that reason, I am unable to appear at your hearing.
We would appreciate the opportunity to discuss the matter with your staff and to propose language
that would meet the needs of your fine city and at the same time not offend the principles of our
organization.
May we have the opportunity to discuss this matter further?
Donald Stanton rGC UNCIL CCPD D>- I;9
Naturist Action Committee 21-CAO c IN DIR
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MEETING AGENDA
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Page 1 of 1
Allen Settle- Proposed anti nudity ordinance
From: "Alec Casanova" <aleccasanova@sunsetgmac.com> AUb 17 2004
To: <asettle@slodty.org>
Date: 8/17/2004 2:46 PM SLO CITY CLERK
Subject: Proposed anti nudity ordinance
August 14,2004
RE: Special Anti Nudity Ordinance
Dear SLO City Council,
Has the danger of bared breasts in SLO reached a point where a special
ordinance is necessary to protect public safety? I think not. How much
time, money and energy has the SLO PD spent on this issue? Could they not
spend more time solving the problems related to reckless driving,
dangerous intersections, and or real crime such as assaults, burglary, and
robbery? I read the police spokespersons comments regarding assualtive RED FILE
behavior by young men and wonder how this is the.fault of women's lack of MEETING AGENDA
clothes. Is not assaultive behavior the fault of the perpetrator?
Honestly, this logic is one step away from the hunting down of witches in DATE$-I* ITEM #
Salem.Should we outlaw short skirts also?
To think this issue came to this point because of ONE DAY A YEAR is
incredible to me.
Please use common sense and create real reform to keep SLO safe not
emotional knee jerk responses banning exposure of a woman's anatomy. I
suspect the District Attorney is not in favor of this ordinance. How about
enforcement?Are the police going to be issued cameras to document this
latest threat to public safety? What about women breastfeeding, or a
surfer taking off his or her wet suit, or somebody sunbathing in their ,(_ TCDD DIR
backyard, or loose fitting clothes where a breast is exposed if one bends �4 UNCi FAIN DIR
over, ect, ed, ect. /C,q0 )R-FIRE CHIEF
�A�ORNEY JR
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Alternative solutions would be to use existing ordinances regarding ; LER "REG REG DIR
assualt and or intent to incite a riot. 1 ,_i DEP
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Respectfully,
Alec Casanova
Sunset Properties GMAC
805 473-0808 ext.222
1-800-549-1313 ext.222
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