Unconstitutional laws being enforced: Part I, beaches continue to flout state laws on nudity

by jovan1984

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The investigation concluded on time. However, the posting wasn’t so timely.

From March 10 to March 27, we investigated the laws and ordinances of beachside towns and counties. While most beach resorts decided to comply with state laws, some decided that they can just go ahead and enforce laws more strict than state law.

For the purposes of comparisons, we have divvied up each location into categories. One category is a go-zone, the other category is a no-go zone. Places that do not have laws of their own, that have laws more lenient than state law, or that follow state laws (since the only three states with restrictions are landlocked), are classified as go-zones — these are shown in either green or the standard font as posted in the table’s theme. Locations that have laws more strict than state law are classified as no-go zones, and are shown in red font.

This is an investigation into the nudity laws in various beach locations in the 23 coastal states. Some of these municipalities are enforcing unconstitutional bans in violation of state law. We’re gonna make an attempt to hold them accountable for flouting state laws.

Georgia:

City

Ordinance State Law Nudity ban? Breastfeeding exemption? Enforcable?

Savannah

None n/a n/a

Tybee Island

Public nudity No n/a Yes, because the ban on nudity only applies to entertainment.

Brunswick

Indecent exposure Yes No Yes. Georgia does not have an indecent exposure law. Also, ordinance does not provide for any exemptions.

Connecticut:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Bridgeport

none n/a n/a

Groton

none n/a n/a

New London

none n/a n/a

Massachusetts:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Marblehead

none n/a n/a

Maryland:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Ocean City

none n/a n/a

South Carolina:

City or Town

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Beaufort

none n/a n/a

Hilton Head Island

none n/a n/a

Charleston

Indecent exposure Indecent exposure (Section 16-15-130) Yes No No. A 2006 state law preempts the local ordinance and the city could be held liable for punitive damages for enforcing an ordinance more strict than state law allows.

Folly Beach

Indecent exposure Indecent exposure (Section 16-15-130) No Yes Yes, it matches state law. While nudity is allowed on the beach, sexual contact of any kind is expressly forbidden.

Isle of Palms

Indecent exposure Indecent exposure (Section 16-15-130) No Yes Possibly. It depends on how sexually explicit is defined in the local ordinance.

Sullivan’s Island

none n/a n/a

Edisto Beach

none n/a n/a NOTE: profanity is banned in the town.

Georgetown

Indecent exposure Indecent exposure (Section 16-15-130) Yes No No. State law preempts the indecent exposure portion of the city’s ordinance, and the city can be held liable for punitive damages for enforcing their ordinance, which is more strict than the state allows.

Pawleys Island

Indecent exposure Indecent exposure (16-15-130) No Yes Yes. Town repealed nudity ban ordinance and adopted state ordinance to fall in compliance with state law.

Myrtle Beach

Public nudity Yes No Yes. State does not have a ban on public nudity. Breastfeeding in public was legal in the city prior to June 11, 2013, when Section 14-83 repealed the 1993 ordinance, and in the process, indiscriminately banned it. State law legalizing breastfeeding in public does not preempt any local ordinances to the contrary.

North Myrtle Beach

Nudity Yes No Yes. State does not have a statute banning nudity in public. State law legalizing breastfeeding in public does not preempt local ordinance.

Virginia:

City or Town

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Hampton

Indecent exposure Indecent exposure (18.2-387) No Yes Yes

Colonial Beach

Indecent exposure Indecent exposure (18.2-387) No n/a Yes

Norfolk

Public nudity Yes No Yes. Virginia does not have a ban on nudity in public, meaning an exemption to breastfeeding does not apply to a local public nudity ban.

Virginia Beach

Public nudity Yes No (public nudity ordinance overrides indecent exposure language exempting breastfeeding) Yes. While a mother breastfeeding can’t be charged under the city’s indecent exposure clause, a person can be charged under a public nudity clause for breastfeeding. The local ordinance overrides the existing indecent exposure ordinance for this instance.

New York:

City Ordinance State law Nudity Ban? Breastfeeding Exemption? Enforcable?
New York Indecency Exposure of Person Yes No No, the ordinance has not been enforceable since the Equal Rights Amendment was written into state law in 1992. The ERA also removed the authority of municipalities to create their own bans on public nudity, which is why the last portion of Section 245.01 is no longer enforceable. A state breastfeeding law summarily removed the authority of municipalities to ban breastfeeding in public two years later. In 2013, a state judge struck down the city’s ban on nudity and breastfeeding after activist Holly Van Voast filed a lawsuit against the city’s cops for arresting her for being topless.

North Carolina

City

Ordinance State Law Nudity ban? Breastfeeding exemption? Enforceable?

Atlantic Beach

None no n/a n/a

Carolina Beach

Indecent exposure Indecent exposure (Section 14-190.9) no n/a Yes

Caswell Beach

none no n/a n/a

Duck

none no n/a n/a

Emerald Isle

Public nudity Yes Yes No, due to the violation of women’s topless rights. The town has two choices: 1. They could allow female toplessness, or 2. They could curtail the exemption for breastfeeding.

Holden Beach

Public nudity Yes No Yes. The ordinance does not allow for any exemptions. North Carolina state law allows for municipalities to prohibit breastfeeding in public, so as long as the ordinance isn’t billed as an indecent exposure ordinance.

Kure Beach

none n/a n/a n/a

Nags Head

none no n/a n/a

North Topsail Beach

none no n/a n/a

Oak Island

Public nudity Yes No Yes. The ordinance does not allow for any exemptions. North Carolina state law allows for municipalities to prohibit breastfeeding in public, so as long as the ordinance isn’t billed as an indecent exposure ordinance.

Ocean Isle Beach

Public nudity Yes No Yes. The ordinance does not allow for any exemptions. North Carolina state law allows for municipalities to prohibit breastfeeding in public, so as long as the ordinance isn’t billed as an indecent exposure ordinance.

Pine Knoll Shores

Disorderly conduct No Yes Yes, Section 38-2 only applies when fully clothed. Cursing is banned on the beach.

Southern Shores

none no n/a n/a

Sunset Beach

Public nudity Yes No Yes. The ordinance does not allow for any exemptions. North Carolina state law allows for municipalities to prohibit breastfeeding in public, so as long as the ordinance isn’t billed as an indecent exposure ordinance.

Surf City

Exposure of female breast No No, breastfeeding in public is banned under 1992 ordinance. Yes, however, ordinance possibly violates the equal protection clause of the 14th Amendment by banning female toplessness, since male nudity is legal at the beach.

Wilmington

Topless entertainment No No, breastfeeding in public is banned under 1962 ordinance. Yes, however, ordinance possibly violates equal protection clause of the 14th Amendment by banning female toplessness since male nudity is legal in the city.  Until a challenge comes along, it is enforceable.

Wrightsville Beach

none No n/a n/a

Rhode Island:

City or Town

Ordinance State Law Nudity ban? Breastfeeding exemption? Enforceable?

Narragansett

none n/a n/a n/a

Newport

Indecent exposure Indecent exposure (11-45-2) No Yes Yes

North Kingstown

none n/a n/a n/a

South Kingstown

Indecent exposure prohibited Indecent exposure (11-45-2) No Yes Yes. Of particular note, public bathing is also banned.

Tiverton

none n/a n/a n/a

Warwick

Indecent exposure Indecent exposure (11-45-2) No Yes Yes. City repealed its ban on public nudity in 1996 in favor of a ban on nudity in establishments that serve alcoholic beverages.

Mississippi:

City

Ordinance State Law Nudity ban? Breastfeeding exemption? Enforceable?

Biloxi

none n/a n/a n/a

Gulfport

Public nudity Yes, only for adult businesses. Otherwise, no. Yes Yes. Ban on public nudity only applies to adult businesses.

Ocean Springs

none n/a n/a n/a

Pascagoula

Public indecency No n/a Yes. It is only illegal to appear in a state of nudity if the nudity is lewd or malicious.

Alabama:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Gulf Shores

Nudity and simulated nudity on the premises of commercial establishments that serve alcohol Only for alcoholic commercial establishments. n/a Yes. The nudity ban only applies to commercial establishments that serve alcohol.

Orange Beach

Nudity and sexual conduct in establishments licensed to sell alcoholic beverages prohibited Only in establishments that possess a license to sell liquors. n/a Yes

Maine:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Bar Harbor

Exposure by people who run adult businesses Only for workers at adult businesses. n/a Yes

Lincolnville

none n/a n/a n/a

Old Orchard Beach

Adult entertainment prohibitions (nudity) Only for adult entertainment establishments. n/a Yes

Scarborough

none n/a n/a n/a

Wells

Obscenity No n/a Yes

York

Prohibiting Obscenity for commercial gain No n/a Yes

Florida:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Bradenton

none n/a n/a n/a

Daytona Beach

Public nudity Yes. This ban also applies to breastfeeding, bathing suits, bikinis, mankinis, G-Strings, see-thru clothing and thongs. No. Breastfeeding is also banned in the city. Yes, the law does not make any exceptions that could be misconstrued as discriminating against any particular group of people.

Delray Beach

Bathing in the nude Exposure of sexual organs (Section 800.03) Only for bathing. n/a Yes

Fernandina Beach

Bathing in the nude; swimming in the nude Exposure of sexual organs (Section 800.03) Only for bathing. n/a Yes

Fort Lauderdale

Public indecency and bathing in the nude Exposure of sexual organs (Section 800.03) Only for bathing. n/a Yes

Fort Myers

Indecent exposure in businesses that sell alcohol for direct consumption on property Only for businesses that sell alcohol for direct consumption on property. n/a Yes

Key West

Nudity or body-painting Yes Yes No. The ordinance as written violates the Equal Protection Clause of the 14th Amendment. The Fantasy Fest exemption is insufficient to satisfy the Equal Protection Clause requirements barring discrimination against any group of law-abiding citizens.

Miami

none n/a n/a n/a

New Port Richey

none n/a n/a n/a

Panama City

Bathing in the nude; nude swimming Exposure of sexual organs (Section 800.03) Only for bathing. n/a Yes

Pensacola

City of Pensacola Public Nudity Ordinance Yes Yes No. Ordinance violates the 14th Amendment rights of law-abiding citizens. Exemptions written in the ordinance are an insufficient defense of the city’s nudity ban.

Tampa

Female nudity for commercial exploitation; nudity on premises where alcohol is consumed directly Only for monetary gain. Adult breastfeeding is exempt from both ordinances. n/a Yes

Vero Beach

Nudity, sexual conduct prohibited Only in establishments where alcohol is consumed directly. n/a Yes

West Palm Beach

Nudity, sexual conduct prohibited in establishments dealing in alcoholic beverages Only in establishments that sell alcohol for direct consumption on premises. n/a Yes

Texas:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Galveston

none n/a n/a n/a

Mustang Island State Park

n/a Indecent exposure – this statute overrides all other statutes, no matter how strict other ordinances are. A statute banning nudity in state parks (Rule 59.134) is no longer enforceable. Rule 59-134 has an obsolete nudity ban in place for state parks, but the rule is no longer enforceable. Yes Yes

South Padre Island

none n/a n/a n/a

Surfside Beach

none n/a n/a n/a

California:

Note: these cities are in order from Interstate 5 mile marker 796 to mile marker 1.

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Mendocino County

none n/a n/a n/a

Sonoma County

Nudity prohibited in public & private areas; nudity and disrobing Yes, in both. Applies to parks as long as property is not owned by either state or federal government. Yes, in both No. Both ordinances violate the state’s Equal Rights Amendment in the same way Proposition 8 did. Therefore, neither ordinance is enforceable. The theatrical exemptions is an insufficient defense of the ordinance.

Marin County

Public nudity Yes No No. First, the child exemption clause sets up a claim against the county for ageism. Second, the state’s ERA prohibits discrimination of any kind against any law-abiding citizen and this ordinance discriminates against both nudists and breastfeeding mothers.

Contra Costa County

none n/a n/a n/a

Alameda County

Nudity Yes, only for entertainment purposes and except in Oakland. No, except in the act of adult breastfeeding or in Oakland. Outside of adult breastfeeding, exemptions do not apply when done for entertainment purposes. Yes

Oakland

Immoral dress Yes No No. Ordinance violates state’s Equal Rights Amendment by discriminating against nudists and by failing to add a breastfeeding exemption as required under state law.

San Francisco County

Public nudity Yes Yes No. Ordinance violates several US Constitutional amendments and the state’s ERA. It is currently being challenged by Gypsy Taub and others.

San Mateo County

Nudity Yes, only for entertainment purposes No, except in the act of adult breastfeeding Yes

County of Monterey

none n/a n/a n/a

San Luis Obispo County

none n/a n/a n/a

Santa Barbara County

Public nudity Yes No No. Ordinance violates state’s Equal Rights Amendment by discriminating against nudists. The lack of a ban on private nudity also renders the ordinance as unconstitutional.

Ventura County

none n/a n/a n/a

Los Angeles County

Nudity at public beaches (two ordinances) Yes No No. The ordinances, passed in 1971, violate the state’s Equal Rights Amendment due to age discrimination, and discrimination against nudists and naturists.

Long Beach

Nudity Yes Yes No. The ordinance violates the state’s Equal Rights Amendment due to sexual discrimination against male-identified people, age discrimination, and discrimination against women who are not mothers. Breastfeeding exemption and child exemption are insufficient defenses to ordinance.

Orange County

Prohibition of public nudity Yes No No. Ordinance violates state’s Equal Rights Amendment, which prohibits discrimination against nudists, age discrimination and sexual discrimination.

San Diego County

Nudity Yes Yes No. The ordinance violates the state’s Equal Rights Amendment due to sexual discrimination against male-identified people, age discrimination, and discrimination against women who are not mothers. Breastfeeding exemption and child exemption are insufficient defenses to ordinance.

Oregon:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Gold Beach

none n/a n/a n/a

Lincoln City

none n/a n/a n/a

Rockaway Beach

Public indecency Public indecency (Section 163.465) No n/a Yes

Seaside

Public indecency Public indecency (Section 163.465) No n/a Yes

Washington:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Seattle

Indecent exposure Indecent exposure (RCW 9A.88.010) No Yes Yes. Indecent exposure only occurs under both Seattle ordinance and Washington law if the nudity or exposure is both intentional and obscene. Both criteria must be met in order for an arrest to occur legally.

Island County

None n/a n/a n/a

Tacoma

Indecent exposure and indecent conduct Indecent exposure (RCW 9A.88.010) No. Neither ordinance has a nudity ban. Yes Yes

Des Moines

Indecent exposure Indecent exposure (RCW 9A.88.010) No Yes Yes

Alaska:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Behtel (Nunathloogagamiutbingoi Dunes)

none n/a n/a n/a, ordinance was repealed

Anchorage

Indecent exposure or exhibition Indecent exposure (Section 11-41-460) No No Yes

Barrow

none n/a n/a n/a

Point Hope

none n/a n/a n/a

Hawaii:

City

Ordinance State law Nudity ban? Breastfeeding exemption? Enforceable?

Maui County

none n/a n/a n/a

Honolulu

none n/a n/a n/a

Hilo

none n/a n/a n/a

NOTE: Every place has a ban on private nudity that only exempts breastfeeding.

Amongst the areas mentioned: Daytona Beach’s nudity ban is the nation’s most strict.  There is no exceptions for any practice of even partial nudity (including breastfeeding), anywhere in the birthplace of NASCAR.  If a person even tries to breastfeed in the city, they will be cited at best, arrested at worst.  And yes, it is actually enforceable.

Other cities that have a nudity ban that is enforceable on this list are as follows: Brunswick, Ga.; Myrtle Beach; North Myrtle Beach; Norfolk, Va.; Virginia Beach; Holden Beach, N.C.; Oak Island; Oak Isle Beach, N.C.; Surf City, N.C.; and Wilmington, although in Surf City and Wilmington’s case, their ordinances’ survival depends heavily on the court’s composition when they decide to accept arguments in each case.  Currently, their ordinances would be enforceable due to the fact that the US Supreme Court is majority conservative, and the court has repeatedly ignored prior precedent.

In California, the only coastal state with an ERA that still have nudity bans on the books, none of the bans are enforceable because the state’s court, or a federal court, can easily use the ERA to wipe the ordinances off the books.

Information on nudity laws in municipalities in Delaware, New Jersey, New Hampshire and Louisiana were not available and thus, those states were not represented on here.

Coming up on Tuesday: Part II of the investigation takes it to the Central Savannah River Area and some of your towns have unenforceable bans on the books!  See you then!

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