JUDICIAL DECISIONS
and related documents

On this page are some of the crucial legal opinions and related documents from North America since 1986. Other material will be added as time permits.

Contents

Arlene Vogt, 2001 June 25.

Linda Meyer, 2000 June 08.

Rochester Topfree Seven, 1992 July 07: Ramona Santorelli, Mary Lou Schloss, Nikki Craft, Kathleen Reilly, Deborah Seymour, Elsie Jo Tooley, Lynn Zicari.


Arlene Vogt

Arlene Vogt was convicted of being nude in a public place for being topfree on Higbee Beach in Lower Township, Cape May County, New Jersey, on August 7, 1999. This is the decision in her appeal to the New Jersey Superior Court. The conviction was upheld.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5140-99T2

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARLENE E. VOGT, Defendant-Appellant.

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Argued May 14, 2001 -- Decided: June 25, 2001

Before Judges Newman, Braithwaite and Wells. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 46-10-99.

Frank L. Corrado, Jr., argued the cause for appellant (Rossi, Barry, Corrado, Grassi & Radell, attorneys; Mr. Corrado, of counsel and on the brief).

Steven D. Scherzer argued the cause for respondent (Cooper, Perskie, April Niedelman, Wagenheim & Levenson, attorneys; Mr. Scherzer and Michael Gross, co-counsel and on the brief).

The opinion of the court was delivered by

WELLS, J.A.D.

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Defendant, Arlene Vogt, appeals from her conviction of "nudity in a public place" in violation of Lower Township Ordinance 3-2.6 in its Municipal Court. Arlene was again convicted upon her de novo appeal to the Law Division, Atlantic County, pursuant to R. 3:23-1. She was sentenced to pay a fine of $500 of which $450 was suspended, together with $30 in costs. The conduct for which Vogt was convicted consisted essentially of appearing topless on a public bathing beach known as Higbee Beach in Lower Township, Cape May County.

We note that Arlene Vogt's appeal to the Law Division was consolidated with that of her husband, William Vogt, who was convicted for conduct in violation of the Fish & Game Laws, which occurred on another part of Higbee Beach. Both appeals were argued together, both in the Law Division and here. Our opinion in William's case, which involves issues not implicated in Arlene's appeal, will be handed down separately.

Ordinance 3-2.6, upon which Arlene was convicted, states:

Indecent or Nude Exposure. It shall be unlawful for any person to appear or travel on any street, avenue, highway, road, boardwalk, beach, beach front or waterway located in the Township of Lower, or to appear in any public place, store or business in said borough in a state of nudity or in an indecent or lewd dress or garment, or to make any indecent or unnecessary exposure of his or her person.

The evidence introduced before the municipal judge was neither complicated nor in dispute. The State's only witness at the municipal court trial was the arresting officer, Officer Martin Biersbach. According to his testimony, on August 7, 1999, at about 4:10 p.m., he was walking with binoculars on Higbee Beach, trying to find nude people to charge with violating the public-nudity ordinance. Through his binoculars he spotted what appeared to be two men in bathing suits, but as he approached he saw that one was a woman, defendant Arlene; the man with her was her husband, William. Also in the area was "a camera man from a news channel." Seeing that Arlene was not wearing a top, Biersbach asked her for identification; after she identified herself, he advised her that she was in violation of the public-nudity ordinance. She asked for a summons because "she wanted to address it in court." He gave her a summons citing the number of the ordinance and describing the offense as "Nudity in Public Place." He did not cite William. Arlene was on the state-owned portion of Higbee Beach; in the companion appeal, William appeared nude on the federally owned portion.

Arlene chose not to testify. On her behalf William testified that when his wife was cited by Biersbach, she insisted that she was not "nude" because she was wearing a bathing suit bottom. William had been sunbathing nude on Higbee Beach since 1979. As the beach was well known as a destination for nudists, no one was ever alarmed at seeing nudity there. William examined pictures of men's breasts introduced into evidence by Arlene, opining that some men's breasts were larger than women's breasts. William admitted that Arlene was topless at the time and that she was aware of the ordinance. William professed that, in his opinion, the ordinance was vague.

When asked by the judge if she had anything to say before sentencing, Arlene responded: "It's my first offense, so I would ask that you be lenient, and it was done as a test case simply to try to get nudity back at Higbee's Beach, or at least a portion of it. And the police department was informed of the action I was going to take that day."

Because to some extent we plow old ground in this case, we pause briefly to set forth the historical and legal context in which the issues arise. Both the Municipal Judge and the Law Division relied extensively on this history in considering the issues raised by Vogt. Higbee Beach has historically been the situs of public nude sunbathing. In Tri-State Metro Naturists v. Lower Tp., 219 N.J. Super. 103, 107-108 (Law Div. 1987), Judge Gibson described the beach:

The site of the nude sunbathing is a portion of a state-owned wildlife preserve known as Higbee Beach. Higbee Beach consists of approximately 200 acres of generally undeveloped land bordering on Delaware Bay along the southerly most tip of Cape May County. That property was purchased by the State of New Jersey in 1978, following which a Management Plan was adopted by the Department of Environmental Protection and implemented through the Division of Fish, Game and Wildlife. The Management Plan reflects the "growing number of outdoor enthusiasts" that visit the area and the "increasing popularity with such tourists as a free beach and place of quiet solitude." Pursuant to N.J.S.A. 13:8A-25 regulations were promulgated covering a wide variety of subjects, the primary purpose of which was to preserve wildlife but which included the management of human conduct as well, including recreational activities. N.J.A.C. 7:25-2.20. The recreational activity covered by the regulations is extensive and includes birdwatching, picnicking and bathing. No prohibition exists, however, with respect to nude bathing or sunbathing. See N.J.A.C. 7:25-2.9.

[T]he area can clearly be labeled as secluded. There is only one road that leads into Higbee Beach and the area is not easily accessible through neighboring property. It is not a place that one would stumble upon by accident. On the other hand, it is clearly open to the public and is used by a large number of people. The fact that it is remote and secluded, therefore, does not mean that it is private or out of public view.

Prior to Tri-State, we had decided a case which challenged the right of another township to limit nude bathing. In Borough of Belmar v. Buckley, 187 N.J. Super. 107 (App. Div. 1982) the proscriptive language of the ordinance in question was identical to that in this case. The defendant was convicted on evidence that she was sunbathing on a public beach while wearing only the bottom of her bikini. On appeal to the Law Division, the court acquitted her on the ground that enforcement of the ordinance was preempted by the State lewdness statute. We reversed on the preemptive ground and remanded for a trial de novo on the merits. Id. at 112- 13.Although the trial court had not reached the defendant's vagueness argument, we chose to dispose of it:

[W]e are satisfied that the ordinance in this respect met constitutional muster since it gave a person of ordinary intelligence fair notice of the nature of the prohibited conduct. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L. Ed. 2d 110 (1972); State v. Monteleone, 36 N.J. 93, 99 (1961).

The meaning of portions of the ordinance may be debatable. Nevertheless, we have no doubt that the proscription against "indecent or unnecessary exposure" of the person would unmistakably apprize persons of ordinary intelligence that topless sunbathing on a public beach in the summertime by a female adult lying on her back is prohibited. We recognize that that might not be so in other societies having different mores and customs, but the import and applicability of the prohibition to the conduct here in this societal context is beyond reasonable debate.

[Ibid. (footnote omitted).]

We observed that, pending the appeal, Belmar amended the ordinance to add a sentence defining "state of nudity" to include, among other things, complete exposure of the female breasts. Id. at 112 n.3. We commented:

While the amendment is obviously more exact and explicit than the ordinance pursuant to which defendant was convicted, the question is not whether the original ordinance could have been more precisely phrased but only whether it was adequately phrased to give reasonable notice of the nature of the prohibited conduct.

[Ibid.]

In Tri-State, an organization of nudists sued to invalidate the same ordinance as involved here which was adopted in 1986 by Lower Township to ban nude sunbathing. The suit was prompted by the fact that several of the plaintiff's members had been arrested under the ordinance on Higbee Beach.

Judge Gibson rejected the plaintiff's various constitutional challenges, including those based on the freedom of expression, right to privacy, freedom of association, vagueness, and protected liberty interest. Tri-State Metro Naturists, supra, 219 N.J. Super. at 108-15. In refuting the vagueness theory, the judge adopted the reasoning of Belmar. Id. at 112. While conceding that "certain portions of this ordinance are arguably vague, particularly with respect to dress," the judge reaffirmed the Belmar court's view that "there is nothing vague about the prohibition against public nudity." Ibid.

Notwithstanding its upholding of the validity of the ordinance, the court held that the ordinance could not be enforced on Higbee Beach, a site that "is state-owned and regulated and therefore immune from local control under state sovereignty grounds." The latter obstacle to enforcement has been removed by L. 1999, c. 141, effective June 28, 1999, by which the Legislature amended N.J.S.A. 40:48-1(9) to allow municipalities to enforce ordinances prohibiting nudity on state-owned lands.

In the present case before the Municipal Court, the Law Division and here, Arlene raised four issues which we paraphrase: (1) The ordinance is unconstitutionally vague on its face and as applied to her; (2) the ordinance denies equal protection under the Fourteenth Amendment to the United States Constitution because it distinguishes legal and illegal conduct on the basis of gender; (3) the ordinance denies equal protection under Art. 1, para. 1 of the State Constitution because the individual rights it affects outweigh the asserted governmental interests it serves; and (4) given the historical pedigree of nude sunbathing at Higbee Beach, the application of the ordinance violates the "public trust" doctrine.

 

I.

In a comprehensive written opinion Judge Garofolo resolved each of these issues against Arlene. With respect to the claim that the ordinance is vague he relied on both Belmar and Tri-State, concluding that both had dealt with the issue and determining that the ordinances in those cases were virtually identical to the present Lower Township ordinance. The wording "gave a person of ordinary intelligence fair notice of the nature of the prohibited conduct." Belmar, supra, 187 N.J. Super. at 112. "[T]here is nothing vague about the prohibition against public nudity." Ibid. Thus, "as applied" to Arlene, he ruled the ordinance was not vague.

We agree. It is ludicrous, as Judge Garafolo stated, to argue that toplessness does not constitute nudity within the meaning of the ordinance. Arlene notes that the ordinance does not define "state of nudity," leaving her on August 7, 1999, to speculate as to whether her partial nakedness would violate the ordinance. Thus while we consider the argument settled by both Belmar and Tri-State to lay to rest any remaining vestige of doubt we hold that the ordinance is not vague as applied to the partial nudity of a topless female sunbather.

The distinction Arlene argues fails both under the strict reading of the words of the ordinance and under the circumstances surrounding her flouting of the ordinance. First, the ordinance forbids appearing in public in "a state of nudity." While toplessness is not the complete nudity that defendant assumes is necessary, it is "a" state of nudity, namely, partial nudity in the form of bare female breasts. Arlene makes much of the fact that her dictionary does not define nudity or nakedness to include partial nudity or toplessness. But the unabridged version of the same dictionary, Webster's International Dictionary 1500 (3rd ed. 1981), defines "naked," a synonym of "nude," as including the following: "inadequately or partially clothed esp. so as to be socially unacceptable." Applying that definition, a Missouri appeals court rejected a child-pornography defendant's argument that his victim was not "nude" because she was missing only her top when he photographed her. State v. Foster, 838 S.W.2d 60, 68 (Mo. App. 1992), cert. denied, 507 U.S. 994, 113 S. Ct. 1607, 123 L. Ed. 2d 169 (1993).

Similarly, the Iowa Supreme Court disapproved a defendant's argument that he had no fair warning that his photographing his topless daughter would constitute "nudity" under the governing statute. State v. Hunter, 550 N.W.2d 460 (Iowa 1996), overruled on other grounds by State v. Robinson, 618 N.W. 2d 395 (Iowa 2000). The court reasoned:

A statutory term provides fair warning if the meaning of the word "is to be fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning." State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974). The common meaning of the word "nudity" includes exposure of the breasts, buttocks or genitalia.

[Id. at 465.]

Referring to the same dictionary definition embraced in Foster, supra, the Hunter court concluded: "The common meaning of 'nudity' does not require total nakedness." Ibid.

Not only does the Lower Township ordinance forbid nudity, but it also bans appearing in public in "an indecent or lewd dress or garment" or being in a state of "indecent or unnecessary exposure." Arlene was familiar with the ordinance beforehand, and she invited her own prosecution by informing the police that she would be testing the ordinance on the day in question. Thus she cannot persuasively profess to be uncertain whether the ordinance would apply to baring her breasts in public. She had to know that her conduct would violate at least one, if not all of the three categories: even if she were not "nude," she certainly was dressed in an "indecent" garment or engaged in "indecent or unnecessary exposure."

We further conclude that Arlene has no standing to make a facial attack on the ordinance. We harken to our recent analysis of the approach to facial invalidity arguments in State v. Saunders, 302 N.J. Super. 509, 517, certif. denied, 151 N.J. 470 (1997). That approach was, in turn, based upon Village of Hoffman Estates v. Flipside, Hoffman Estates Inc., 455 U.S. 489, 494-95, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362, 369 (1982).

The first, and here, the only necessary step is to determine whether the ordinance reaches a substantial amount of constitutionally protected conduct. We hold that it does not. This question has been answered uniformly in the negative: there is no constitutional right for a woman to appear topless on a public beach. The only New Jersey case is the Law Division opinion in Tri-State, supra, 219 N.J. Super. at 108-115, in which the court reviewed the federal case law holding that nude sunbathing does not implicate either the First Amendment, the right to privacy, or a protected liberty interest. For example, in Chapin v. Town of Southampton, 457 F. Supp. 1170 (E.D.N.Y. 1978), the court upheld an ordinance forbidding nudity on beach areas and in adjacent waters. The court reasoned that nude bathing in itself lacks any communicative value that might call for First Amendment protection. Id. at 1173-74. Nor does it implicate the right of privacy or the right to be left alone: one does not have "a right to impose one's lifestyle on others who have an equal right to be left alone." Id. at 1175. Accord. South Florida Free Beaches, Inc., v. City of Miami, 734 F.2d 608, 610 (11th Cir. 1984), (upholding ban on nude sunbathing on public beach, which enjoyed no constitutional protection).

The nude-sunbathing cases derive their authority in large part from the United States Supreme Court's pronouncements that public nudity is not safeguarded by the Constitution. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 n.7, 95 S. Ct. 2268, 2274 n.7, 45 L. Ed. 2d 125, 132 n.7 (1975). Because the ordinance is not over-broad and implicates no constitutionally protected conduct and because we have concurred with the trial judge that Arlene's conduct clearly falls within the proscribed behavior, she cannot be heard to complain that the ordinance may be vague as applied to the conduct of others.

 

II.

Arlene argues that Lower's ordinance as applied to topless women but not men creates an invidious discrimination on the basis of gender in violation of both the federal and state constitutional guarantees of equal protection. Judge Garofolo held:

Protecting the public sensibilities is an important governmental interest based on an indisputable difference between the sexes. Further, the prohibition against females baring their breasts in public, although not offensive to everyone, as shown by the testimony of all three witnesses in this case, is still seen by society as unpalatable. Therefore, the ordinance does not violate the Equal Protection Clause of the Fourteenth Amendment.

We agree. Restrictions on exposure of the female breast are supported by the important governmental interest in safeguarding the public's moral sensibilities, and this ordinance is substantially related to that interest. Hence the ordinance satisfies both the federal and state tests for equal protection.

A gender-based distinction challenged under the Equal Protection Clause of the United States Constitution is gauged by the so-called "intermediate" level of scrutiny: the distinction must be justified by an important governmental interest that is substantially accomplished by the challenged discriminatory means. United States v. Morrison, 529 U.S. 598, 620, 120 S. Ct. 1740, 1755, 146 L. Ed. 2d 658, 678 (2000); Greenberg v. Kimmelman, 99 N.J. 552, 565 (1985); B.C. v. Cumberland Reg'l Sch. Dist., 220 N.J. Super. 214, 223 (App. Div. 1987). The burden of justifying the classification is on the state, which must show that the claimed justification is "exceedingly persuasive." United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2275, 135 L. Ed. 2d 735, 751 (1996).

This issue has been litigated often elsewhere, the overwhelming majority of cases holding that laws banning female (but not male) toplessness do not violate federal or state equal protection guidelines. See generally Kimberly J. Winbush, Annotation, Regulation of Exposure of Female, But Not Male, Breasts, 67 A.L.R.5th 431, 453-57 (1999). The leading case is Craft v. Hodel, 683 F. Supp. 289 (D. Mass. 1988), in which the court upheld against various constitutional attacks a National Park Service regulation barring public nudity within the Cape Cod National Seashore. That regulation expressly listed among its prohibitions the exposure of the "female breast." Id. at 290 n.1. In rejecting the equal protection challenge, the court observed that the regulation had an important governmental objective--to protect the public's sensibilities--an objective based not on unreasonable cultural stereotypes but rather on a real "physical difference between the sexes which has implications for the moral and aesthetic sensitivities of a substantial majority of the country." Id. at 300. The Equal Protection Clause, cautioned the court, does not demand that things that are different in fact be treated the same in law, nor that a state pretend that there are no physiological differences between men and women. Ibid.

Moreover, reasoned the court, the regulation satisfied the second part of the analysis: the distinction between men's and women's breasts was substantially related to the valid state objective, in that current community standards deemed male-breast exposure on a public beach to be acceptable and female-breast exposure to be offensive. Id. at 300-01.

In this light it is also not just the size of the breast exposed that is at the heart of the male-female distinction. Indeed, while one could infer from the photographs admitted at trial some men are more full breasted than some women, it is the public sensitivity in the case of women which is at stake. Similarly, in United States v. Biocic, 928 F.2d 112 (4th Cir. 1991), the court upheld an ordinance forbidding "the showing of the female breast" in public. The court justified the alleged discrimination against females as follows:

The important government interest is the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens' anatomies that traditionally in this society have been regarded as erogenous zones. These still include (whether justifiably or not in the eyes of all) the female, but not the male, breast.

[Id. at 115-16 (footnote omitted).]

Arlene cites one case in support of her position. People v. Santorelli, 600 N.E. 2d 232 (N.Y. 1992). The language that Arlene embraces is from the concurring opinion. The majority opinion expressly declined to reach the equal-protection challenge, in view of its holding that the ban on nudity did not apply to the facts of that case. We, therefore, do not deem the concurrence an authoritative expression of the current state of the law.

Arlene also claims that the United States Supreme Court in 1996 undermined the precedential value of cases such as Craft and Biocic because it "enhanced the level of constitutional scrutiny due gender based classifications" by demanding that the state's justification be "exceedingly persuasive". Virginia, supra, 518 U.S. at 515. Our reading does not confirm that argument. The Court applied the traditional intermediate scrutiny test but added that the State must make an "exceedingly persuasive" showing that the test has been satisfied. Id. at 532-33. In his concurring opinion in that case, Chief Justice Rehnquist lamented the majority's confusing use of the "exceedingly persuasive" phrase, and he offered his clarification that the "phrase is best confined, as it was first used, as an observation on the difficulty of meeting the applicable test, not as a formulation of the test itself." Id. at 559, (Rehnquist, C.J., concurring). Furthermore, in Morrison, supra, 529 U.S. at 620, the Court reaffirmed the traditional test for assessing gender-based classification. In any event, we find the State's position with respect to the difference between the exposure of the female breast and that of the male breast exceedingly persuasive.

 

III.

Arlene's state equal protection theory derives from Article I, paragraph one of the State Constitution:

"All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness."

In assessing an equal-protection argument under that clause, our courts apply "a balancing test: whether there is an appropriate governmental interest that is suitably furthered by the differential treatment." In re Charter School Application of Englewood on Palisades Charter School, 320 N.J. Super. 174, 237 (App. Div. 1999), aff'd, 164 N.J. 316 (2000). Our courts strike the balance according to three factors: "the nature of the affected right, the extent to which the governmental restriction intrudes upon it, and the public need for the restriction." Ibid., quoting Greenberg, supra, 99 N.J. at 567. The more personal or fundamental the right, "the greater the public need must be to justify governmental interference with the exercise of that right." George Harms Const. Co., v. N.J. Turnpike Auth., 137 N.J. 8, 29 (1994).

Arlene observes, correctly, that "the protection afforded by the state constitution's equal protection component can be broader than that afforded by its federal analogue." She insists that the broader protection is appropriate here, because (1) the right she asserts "is personal rather than economic," (2) the ordinance's prohibition is "absolute" as to females and fails to accommodate the unique history of Higbee Beach, and (3) the State failed to prove a "public need" for "so draconian an interference" with defendant's right to go topless.

Judge Garofolo held with respect to this argument:

It appears that the defendant is arguing that she has a right to walk around without a top on. She ignores the societal mores and customs recognized by numerous courts that have dealt with this exact issue. See e.g., Tri-State Metro, supra; Belmar, supra; Biocic, supra, Hodel, supra. The ordinance does not fully prohibit an individual from going topless, but rather restricts the prohibition to those public areas where public sensitivities can and would be offended.

The judge also invoked Judge Gibson's reaction to the same ordinance in Tri-State, supra, 219 N.J. Super. at 115, to the effect that whatever personal right one has to be nude, that right becomes subject to government regulation when one seeks to exercise it in public. Judge Gibson explained:

The critical distinction lies with the public nature of the activity. It is when naturists by their actions impose their choice on others that generally accepted standards are offended. Under the circumstances, therefore, even if there is a constitutionally protected liberty to sunbathe nude in public, a sufficiently legitimate State interest has been demonstrated by Lower Township to justify the regulations this Ordinance contains.

[Ibid.]

We conclude that Arlene's state equal protection claim fails the balancing test. The nature of the right--appearing topless in public--is not central to the ordinary person's life enjoyment or liberty. The ordinance does not totally prevent Arlene from pursuing her "right," she can exercise it at a private beach or at a public beach elsewhere where nudity is permitted. Case law recognizes that the government has a legitimate need to protect the public from unwelcome exposure to nudity.

In sum, Judge Garofolo correctly rejected both of Arlene's equal protection challenges to the ordinance.

 

IV.

Arlene argues that her prosecution should have been deemed foreclosed by the "public trust doctrine."The public trust doctrine derives from Roman law; its original application was to allow all citizens to have access to tidal waters and the seashore. Matthews v. Bay Head Imp. Ass'n, 95 N.J. 306, 316-17, cert. denied, 469 U.S. 821, 105 S. Ct. 93, 83 L. Ed. 2d 39 (1984); Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296 (1972). While the doctrine was first "limited to the ancient prerogatives of navigation and fishing," our courts have extended it "to recreational uses, including bathing, swimming and other shore activities." Neptune, supra, 61 N.J. at 309. In so expanding the doctrine, our Supreme Court opined that the doctrine, "like all common law principles, should not be considered fixed or static, but should be molded and extended to meet changing conditions and needs of the public it was created to benefit." Ibid.

Arlene seizes upon the latter language, which she says "forbids Lower Township from prohibiting, by ordinance or otherwise, the long-established, long-accepted, unremarkable use of the area for topless or nude sunbathing," which use falls within the category of "other shore activities" protected by the doctrine.

Judge Garofolo refused to apply the doctrine, drawing a distinction between the right of access, which is what the doctrine protects, and the right to be free of restrictions on that access, which lies outside the doctrine's scope. He reasoned:

However, the public trust doctrine has never been extended to apply to any principle other than keeping beaches and tidal waters open for public fishing, navigation, swimming and recreation. Thus, Matthews held that a municipality could not exclude non-resident members of the public from its beaches. Id. at 331. While Ms. Vogt had access to and a right to use Higbee Beach, it does not follow that she had a right to sunbathe nude there.

In New Jersey the doctrine has been enforced mainly in the context of disapproving municipal regulations that favored residents over non-residents with regard to access to and fees for using beaches and related facilities. See Capano v. Borough of Stone Harbor, 530 F. Supp. 1254, 1269 (D.N.J. 1982) (summarizing New Jersey law). In Neptune, supra, 61 N.J. at 310, the Court cited the doctrine in overturning an ordinance that restricted to residents the sale of beach badges, which restriction resulted in a higher fee for non-residents. In Van Ness v. Borough of Deal, 78 N.J. 174, 180 (1978), the Court held that, under the doctrine, a municipality could not set aside part of a public beach for use by residents only. In Slocum v. Borough of Belmar, 238 N.J. Super. 179 (Law Div. 1989), the court, adopting the reasoning of Van Ness and Neptune, invalidated beach fees that discriminated against non- residents.

But courts applying the doctrine have recognized that the doctrine does not prevent a municipality from imposing reasonable restrictions on that access and use. Thus, in Van Ness, supra, 78 N.J. at 179, the Court, while applying the doctrine to open a beach to non-residents, recognized that "the municipality, in the exercise of its police power and in the interest of the public health and safety, would have the right to adopt reasonable regulations as to the use and enjoyment of the beach area."

In State v. Oliver, 320 N.J. Super. 405, 415-16, certif. denied, 161 N.J. 332 (1999), the court denied that the public-trust doctrine prevented a borough from closing its beach to surfboarders during a storm. Judge Carchman reasoned:

The right of the public to enjoy that property encompassed by the doctrine is not inconsistent with the right of the sovereign, as trustee, to protect those utilizing such property. This is the essence of the government's inherent authority, if not its obligation, to act in the interest of the public safety and welfare ... Such action may take the form of the legitimate exercise of police power, for example, to close beaches and preclude use of property, even that falling within the Public Trust Doctrine, when the public safety and welfare is threatened.

[Ibid.]

And the judge noted that the power to impose such use restrictions was granted by various statutes, including N.J.S.A. 40:61-22.20, which confers on shore towns the power to, "by ordinance, make and enforce rules and regulations for the government and policing of such lands [beaches], boardwalks, bathing facilities."

Thus Judge Garofolo correctly declined to accept Arlene's theory that because Higbee Beach is held in trust for the public, she was free to bare her breasts. Her freedom was subject to the township's power to impose such limits as reasonably lay within its statutory and inherent police powers.

Nor is a different conclusion warranted by the alleged fact that nudity had been tolerated at Higbee Beach for over thirty years. A municipality should not be somehow estopped by prior inaction to ban conduct it deems harmful to the public. In any event, Judge Garofolo disputed Arlene's premise, pointing out that the township had prosecuted nudists in the 1980's, as summarized by the court in Tri-State.

Affirmed.


Linda Meyer

This is the decision in Linda Meyer's challenge of the anti-topfreedom bylaw of Maple Ridge, British Columbia, enacted on June 24, 1997. It struck down the bylaw.

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www.courts.gov.bc.ca/jdb%2Dtxt/sc/00/09/s00%2D0902.htm

Citation: Maple Ridge v. Meyer

2000 BCSC 902
Date: 20000608
Docket No.: A972072
Registry: Vancouver
 
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
THE CORPORATION OF THE DISTRICT OF MAPLE RIDGE, PLAINTIFF
AND:
LINDA ANNE MEYER, DEFENDANT
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE HOLMES (IN CHAMBERS)
 
Counsel for the Plaintiff: Barry Williamson and Francesca Marzari
Counsel for the Defendant: David G. Butcher
Date and Place of Hearing: February 21 and 22, 2000, Vancouver, B.C.

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APPLICATION:

[1] The defendant Ms. Meyer applies pursuant to Rule 18A for a dismissal of the plaintiff Maple Ridge's application for injunctions to prevent her being present in a Maple Ridge Park, or a Park facility, unless clothed by opaque apparel which covers her nipples and aureole. Specifically that would prevent her bathing top-free in Maple Ridge's Leisure Center swimming pool as being in violation of Section 3A of the District's By-Law 3414-1984 ["Park By-Law"].

PARK BY-LAW:

[2] The stated purpose of the Park By-Law is "... to regulate, govern and manage park property and recreational facilities of the ... District ...".

[3] On June 24, 1997 Council passed Amending By-Law 5600-1997 to add a new regulation to the Park By-Law titled "dress code", and numbered Section 3A.

[4] Section 3A reads:

1 Subject to subsection (3) of Section 3A, all persons shall be clothed in Parks;

2 "Clothed" means that males and females shall fully cover the genital area with opaque apparel and that females over the age of eight (8) years shall fully cover all portions of their nipples and aureole with opaque apparel.

3 Subsection (1) and (2) shall not apply to changing, dressing and washrooms in Parks or to areas in Parks designated and scheduled by the Maple Ridge/Pitt Meadows Parks and Leisure Services Commission for use for art and drawing programs in respect of which models may pose as part of the program offered to the public.

GROUNDS FOR APPLICATION:

[5] The defendant alleges Section 3A of the Park By-Law is ultra vires as it seeks to regulate matters of criminal law exclusively within federal jurisdiction.

[6] The defendant alternatively takes the position that if the Park By-Law is valid it discriminates against females over the age of eight years, violates Ms. Meyer's right to freedom of expression contrary to Sections 2(b) and 7(1), and is discriminatory based on sex and age contrary to Section 15(1) of the Canadian Charter of Rights and Freedoms.

FACTS:

[7] The Maple Ridge Park By-Law regulates the use of parks in the District. The Park By-Law is both general and comprehensive. By-Law provisions address littering, carrying weapons, disorderly conduct, defacing foliage, injuring animals, starting fires, advertising within parks, vandalism, prohibiting unlicensed vending in a park, erecting structures, digging, parking, and hours of access.

[8] The Park By-Law provides that a person whose conduct is considered undesirable may be excluded from the park. A person that has breached a Park By-Law may be removed from the park.

[9] The Park By-Law provides that a breach is an offence punishable upon summary conviction and a person in breach is liable to a penalty pursuant to the Offence Act, R.S.B.C. 1996, c.338. The maximum penalty provision under the Offence Act is a fine of $2,000 and six months' imprisonment.

[10] The Amending By-Law was passed June 24, 1997 in anticipation of the defendant asserting publicly that she would attend and bathe bare-breasted at the Leisure Center pool.

[11] It is of significance however that the impugned amendment is intended to have general application to all areas of Maple Ridge parks. It is inserted under the Section "A" of the Park By-Law titled "General Park Regulations". Specifically it was not placed within Section "B" of the Park By-Law titled "Swimming Pool Regulations".

[12] The defendant was issued a ticket for breach of Section 3A of the Park By-Law on July 1, 1997 when she appeared at the Leisure Centre swimming pool without a bathing suit top and refused management requests to comply with the Park By-Law by covering the tips of her breasts.

[13] I was advised prosecution of the Park By-Law offence has been adjourned pending the hearing of this action.

[14] In furtherance of her protest against prohibition in Section 3A of the Park By-Law Ms. Meyer attended bare-breasted on several further occasions at the Leisure Centre Pool in the summer of 1998. She was not charged in respect of those occurrences.

[15] The affidavit evidence filed by Maple Ridge of several women present on an occasion of Ms. Meyer's attendance at the pool falls generally within one of two categories.

[16] Some deponents do not approve of females baring their breasts at the community pool. This form of disapproval appears based upon the morality of her conduct.

[17] The second group generally appears to denounce the public baring by Ms. Meyer of her breasts at the pool on the basis it is inappropriate in the presence of children and inimical to values regarding body privacy parents wish to instill in young females.

[18] I do not find on the evidence that Ms. Meyer's removing her top was in itself disruptive of the usage of the pool, however, the publicity that surrounded her announced appearance to challenge the Park By-Law attracted the press which in turn was disruptive of normal pool decorum.

[19] The evidence also indicates that on one occasion Ms. Meyer's top-free attendance was embarrassing to some young girls present and spoiled the atmosphere of their birthday party outing at the pool.

[20] The police and provincial prosecutor's office have declined further involvement in the enforcement of Section 3A of the Park By-Law and suggested Maple Ridge seek enforcement by injunctive relief in this Court.

[21] It appears that historically the authorities considered being top-free in the community pool, or elsewhere in municipal parks, as unlawful under the Criminal Code's nudity, indecency or obscenity provisions. Perhaps it was considered to come within the rubric of the Park By-Law titled "Disorderly Conduct" which concerns a person acting in an "...offensive manner".

DIVISION OF POWERS:

[22] The Maple Ridge Park By-Law was enacted under the authority of the District to regulate the use of its parks and services and derives from powers granted by the province under Sections 610 and 517 of the Municipal Act.

[23] The Amending By-Law states the motivating purpose of Council in enacting the Section 3A dress code was "... to ensure that as many persons in the community as possible feel welcome and are comfortable in using the public recreational facilities in the community."

[24] It is difficult however to reconcile that benign stated purpose motivating the amendment when one considers the previously referred to background to the impugned Amending Park By-Law.

[25] There does not appear from the evidence any attempt to regulate or segregate usage of the pool by having adult times, family times, times for children, or like divisions. Regulation of that nature might have reduced the discomfort or embarrassment reported by some persons at Ms. Meyer being top-free in the presence of pool usage by families or children.

[26] In R. v. Racette, [1988] 2 W.W.R. 318 at 327 (Sask.C.A.) the Court approved of the necessity to examine the effect of the impugned statute and noted several criteria that may be taken into account in a determination of the character or substance of the legislation. Relevant factors include the legislative scheme and history of the enactment, the state of the law prior to the enactment and the defect it was designed to correct.

[27] The key to classification of a law in respect of division of federal or provincial power under Sections 91 and 92 of the Constitution Act, 1867 is to identify at commencement the "matter" of the subject legislation. The "matter" of a law is its leading feature, essence, or dominant purpose and has historically been referred to as the "pith and substance".

[28] Courts must apply consideration of policy along with legal principle. The task requires a combination that balances legal skill, respect for established rules and plain common sense. The approach must be flexible and not technical. Although the dominant purpose, or aim of legislation, often provides the key to constitutional validity, taking into account purpose and effect can be of importance. [R v. Morgentaler, [1993] 3 S.C.R. 463 at 481-83].

[29] Federal and provincial legislative jurisdiction may overlap in certain areas. The present circumstances require consideration of this possibility.

[30] Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59 illustrates this "double aspect" doctrine: legislation for one aspect and purpose may fall within Section 92 and for another aspect and purpose may come within Section 91.

[31] Rio Hotel, supra, although on its facts deals with the power of a province to prohibit nude entertainment under liquor licensing regulations, is helpful for analysis in determination of the "matter" of the Park By-Law.

[32] Maple Ridge contends it is simply regulating "dress code" at its pool to best provide a service to local citizens. However, the subject of nudity also has a moral aspect that is clearly a matter for the criminal law.

[33] In Rio Hotel, the Court held mere duplication does not constitute direct conflict and that federal legislation "...will only be paramount when there is a direct conflict with relevant provincial legislation."

[34] As Dickson C.J.C. stated:

The double-aspect doctrine will apply whenever the contrast between the relative importance of the federal and provincial characteristics of a particular subject matter is not sharp.

[35] It is of import to the decision in Rio Hotel that the control by the province was in relation to the provincially issued liquor license and no direct conflict with the Criminal Code provisions regarding nudity arose:

Although there is some overlap between the licence condition precluding nude entertainment and various provisions of the Criminal Code, there is no direct conflict. It is perfectly possible to comply with both the provincial and the federal legislation. Moreover, the sanction for breach of the provincially imposed licence conditions is suspension or cancellation of the liquor licence. No penal consequences ensue for the nude entertainer or for the holder of the licence. Under the relevant Criminal Code provisions, the primary object is obviously to punish entertainers and proprietors who breach the prohibitions on public nudity. I cannot say that the federal characteristics of this subject-matter are palpably more important than the provincial characteristics. The provincial regulatory scheme relating to the sale of liquor in the province can, without difficulty, operate concurrently with the federal Criminal Code provisions. [Rio Hotel, p.667].

[36] I do not find this reasoning has similar application here. Section 3A of the Park By-Law imposes criminal sanction on Ms. Meyer and makes her liable to fine and imprisonment. It goes directly to the issue of nudity by exposure of the female breasts.

[37] Some caution must therefore be exercised in respect of the body of case law dominating in this area which often addresses the ability of provinces to control licensing concerning consumption and marketing of alcohol in conjunction with entertainment involving adult nudity.

[38] The dominant purpose of the Park By-Law centers upon maintenance of a level of appropriate conduct, propriety or decorum of users of the park facilities is conducive to the orderly operation of public facilities for the use and enjoyment of local citizens.

[39] In Rio Hotel, Estey J. in his separate but concurring reasons, referred with approval to lower Court decisions in which he considered the provincial regulation in issue was directed at the orderly operation of licensed premises.

Conduct which would detract from the efficiency and orderliness of these operations was either the grounds for the cancellation of the license or for process in the criminal courts of the provincial offence established in support of the provincial regulation. [Rio Hotel, p.673].

[40] In Re Sharlmark Hotels Ltd. and Metro Toronto (1981), 121 D.L.R. (3d) 415 (Ont.Div.Ct.) a by-law prohibiting entertainers in adult entertainment parlors from exposing particular areas of their bodies was held not to address Criminal Code matters, despite consideration of the specific nudity provisions of the Criminal Code.

[41] The issue here concerns whether there is a:

... subtle but discernible distinction between criminal legislation and regulation established to support and promote the operation of valid provincial legislative object.

as referred to by Estey J. in Rio Hotel, at p.673, in reference to Sharlmark.

[42] I cannot accept counsel for Maple Ridge's suggestion there is a fair analogy in minimum dress standards directed to female nudity being upheld as a valid provincial legislative object in respect of entertainment in licensed premises compared with regulations concerning standards of dress for females requiring breasts being covered while in a public park.

[43] The legislation enacted by Section 3A of the Park By-Law purports to enact a stricter standard regarding nudity by a top-free female than does the Criminal Code. It imposes strict liability and removes important defenses permitted in the criminal law including the fundamental defense of showing a lawful excuse.

[44] Certainly provincial legislation aimed at prevention of crime is constitutionally valid [Bedard v. Dawson, [1923] S.C.R. 681, 40 C.C.C. 404 (S.C.C.); Perry v. Vancouver City (1990), 48 B.C.L.R. (2d) 342 (B.C.S.C.)]. That however is not the issue here. The District concedes that it is not crime prevention that underlies the purpose behind Section 3A of the Park By-Law.

[45] Neither does Maple Ridge seek to uphold the impugned Section 3A of the Park By-Law under specific enumerated subsections of Section 92 such as the regulation of business or being in the interests of health or safety.

[46] Where under a provincial law an offence is created which infringes upon the field of criminal law it will be found ultra vires. In Westendorp v. The Queen, [1983], 1 S.C.R. 43, 2 C.C.C. (3d) 330 a by-law purporting to regulate city streets created an offence of being on a street or approaching a person on a street for the purposes of prostitution was held to be ultra vires as over-reaching and offending against the division of power.

[47] Laskin C.J.C. found:

... consideration of the by-law is to establish a concurrency of legislative power, going beyond any double aspect principle and leaving it open to a Province or to a municipality authorized by a Province to usurp exclusive federal legislative power. If a Province or municipality may translate a direct attack on prostitution into street control through reliance on public nuisance, it may do the same with respect to trafficking in drugs. And, may it not, on the same view, seek to punish assaults that take place on city streets as an aspect of street control! [Westendorp, supra, p.338]

[48] I have concern that the Westendorp context is not too far removed from the circumstances presently before the Court. The regulation of top-free females in public venues was until recent history generally conceded to be the purview of the criminal law. It was considered an issue touching on public morals. It was perceived as a matter involving indecency or offensive conduct. That field of law is here transplanted to a By-Law intended for governance of local parks.

[49] The law concerning the appearance of top-free females in public places has been recently considered and defined. The mere act of public nudity is not an offense. [R. v. Jacob (1996), 112 C.C.C. (3d) 1 (Ont.C.A.)].

[50] I do not accept a direct link has been demonstrated between the provisions of Section 3A of the Park By-Law and the public's enjoyment of public property.

[51] Where the effect and purpose of a regulation is indistinguishable from the provisions in the Criminal Code, or does nothing more than "stiffen" the provisions of the Criminal Code it will be found ultra vires. [R. v. Racette, supra, McNeil v. Nova Scotia Board of Censors, [1978] 2 S.C.R. 662; Prestige Video v. Victoria, [1982] 6 W.W.R. 507 (B.C.S.C.)].

[52] In my view both in effect and purpose Section 3A of the Park By-Law is an attempt to stiffen the existing Criminal Code provisions aimed at nudity, indecency and/or obscenity.

CRIMINAL LAW OF NUDITY:

[53] Sections 173 and 174 of the Criminal Code deal with nudity and indecent acts:

S.173(1) Every one who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person, is guilty of an offence punishable on summary conviction.

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of fourteen years is guilty of an offence punishable on summary conviction.

S.174(1) Every one who, without lawful excuse,
(a) is nude in a public place, or
(b) is nude and exposed to public view while on private property, whether or not the property is his own,
is guilty of an offence punishable on summary conviction.

(2) For the purposes of this section, a person is nude who is so clad as to offend against public decency or order.

(3) No proceedings shall be commenced under this section without the consent of the Attorney General.

[54] Indecency is not defined in the Criminal Code. It is to be measured on an objective, national, community standard of tolerance. The standard of tolerance is not defined by what Canadians think it is right for them to see, rather it is what they would not abide other Canadians viewing. [Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494].

[55] In R. v. Jacob, supra, a woman who walked bare-breasted on a city street and then reclined top-free on the front step to her home was acquitted on appeal of committing an indecent act. The Court found the baring of her breasts was not harmful to anyone. There was nothing degrading or dehumanizing in her conduct. The Court noted anyone who was offended was not forced to look.

[56] There is force to the defendant's argument that the impugned Section 3A of the Park By-Law by requiring women to cover their nipples and aureole while in a District park or recreation facility creates a stricter standard regarding nudity than exists in the Criminal Code. It imposes strict liability, is not subject to a community standard of tolerance test, and in the breach can lead to imprisonment. It also purports to criminalize the conduct of girls as young as nine years of age.

[57] I do not find in the evidence support for the view that the parks could not operate in orderly fashion if a female were to bare her breasts in a circumstance that did not offend criminal laws of nudity. The evidence suggests the Section 3A amendment to the Park By-Law was more a reaction to a frustration that the criminal law was not supporting the moral standards in regard to females who chose to bare their breasts in public that some Maple Ridge citizens desired.

[58] The Park By-Law in issue does not illustrate the clear valid provincial object that was found in Ontario Adult Entertainment Bar Association of Toronto (1997), 188 C.C.C. (3d) 481, 35 O.R. (3d) 161, or cases of similar circumstance. The evidence in Ontario Adult Entertainment, supra, indicated "lap dancing" created health and safety risks for dancers and the activity could encourage the commission of crimes.

[59] I find Section 3A to be lacking a clear provincial object, and taken in context of events existing at the time of its enactment suggests a colourable attempt to regulate morality and thus displace the federal jurisdiction in respect of criminal law.

[60] In my view, the "matter" or "pith and substance" of Section 3A of the Park By-Law places it within federal legislative competence as being a matter for the criminal law. It is not a matter which can be fairly described as property and civil rights [Constitution Act, s.92(13)] or a matter of a local and private nature [s.92(16)].

[61] I accept that the enforcement of a Park By-Law offence under the Offence Act does not lead to a characterization of a federal criminal law power. Provinces have an express ancillary power to impose punishment for the purpose of enforcing valid provincial laws under s.92(15) of the Constitution Act.

[62] Neither does the fact a valid by-law may be enforced with penal consequence aid in discovery of whether the by-law itself is inter vires the enacting jurisdiction.

[63] I find that the impugned Section 3A of the Park By-Law is ultra vires the legislative competence of Maple Ridge and the plaintiff is entitled to a declaration to that effect. I consider that in light of this finding I should not comment upon further issues of whether the Park By-Law if validly enacted would infringe upon Ms. Meyer's Charter Rights.

[64] The defendant's 18A application is allowed.

[65] I was advised the parties agree the counterclaim in this action be dismissed.

[66] I am unaware of any agreement of the parties regarding costs. In the absence of agreement to the contrary the defendant is entitled to her costs on Scale 3.

 

"R.R. Holmes, J."
The Honourable Mr. Justice R.R. Holmes


Rochester Topfree Seven

The Rochester (NY) Topfree Seven were acquitted in 1992, after six years. For being topfree, they had been accused of violating NY state Penal Law 245.01, the "Exposure of a Person" law. We quote it in part here:

"A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed. For purposes of this section, the private parts or intimate parts of a female person shall include that portion of the breast which is below the areola. This section shall not apply to breast feeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment."

The acquittal of the Topfree Seven resulted in the striking down of this law as it applies to women's breasts.

We draw your attention to the following words of Judge Titone (for the full context, see below). These are some of the main points adopted by the Topfree Equal Rights Association.

[Defendants] contend that to the extent that many in our society may regard the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent …, that perception cannot serve as a justification for differential treatment because it is itself a suspect cultural artifact rooted in centuries of prejudice and bias toward women.

… the concept of "public sensibility" itself, when used in these contexts, may be nothing more than a reflection of commonly held preconceptions and biases. One of the most important purposes to be served by the equal protection clause is to ensure that "public sensibilities" grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government…The mere fact that the statute's aim is the protection of "public sensibilities" is not sufficient to satisfy the state's burden of showing an "exceedingly persuasive justification" for a classification that expressly discriminates on the basis of sex.

 
THE PEOPLE &C., RESPONDENT, v. RAMONA SANTORELLI AND MARY LOU SCHLOSS, APPELLANTS, ET AL., DEFENDANTS.
 
80 N.Y.2d 875, 600 N.E.2d 232, 587 N.Y.S.2d 601 (1992).
July 7, 1992
 
CoCt No. 115
Decided July 7, 1992
------------------------------------------------------------------------
This memorandum is uncorrected and subject to revision before publication in the New York Reports.
 
Herald Price Fahringer, for Appellant Santorelli.
Donald W. O'Brien, Jr., for Appellant Schloss.
Elizabeth Clifford, for Respondent.
 
MEMORANDUM:
 
The order of Monroe County Court should be reversed and the informations dismissed.
 
Defendants' claim that Penal Law § 245.01 offends the equal protection clauses of the Federal and State Constitutions was expressly passed upon by County Court, and its disposition of that claim was a necessary basis for its order of reversal of the Rochester City Court which had dismissed the informations (see, People v Craft, 149 Misc 2d 223 [Monroe Co Ct]; People v Craft, 134 Misc 2d 121 [Roch City Ct]). We, therefore, reject the People's argument that under CPL 470.35(2)(a) the Court of Appeals lacks jurisdiction to pass upon that claim.
 
Defendants were arrested for violating Penal Law § 245.01 (exposure of a person) when they bared "that portion of the breast which is below the top of the areola" in a Rochester public park. The statute, they urge, is discriminatory on its face since it defines "private or intimate parts" of a woman's but not a man's body as including a specific part of the breast. That assertion being made, it is settled that the People then have the burden of proving that there is an important government interest at stake and that the gender classification is substantially related to that interest (see, Mississippi University for Women v Hogan, 458 US 718, 725). In this case, however, the People have made no attempt below and make none before us to demonstrate that the statute's discriminatory effect serves an important governmental interest or that the classification is based on a reasoned predicate. Moreover, the People do not dispute that New York is one of only two states which criminalizes the mere exposure by a woman in a public place of a specific part of her breast.
 
Despite the People's virtual default on the constitutional issue, we must construe a statute, which enjoys a presumption of constitutionality, to uphold its constitutionality if a rational basis can be found to do so (see, McKinney's Cons Laws of NY, Book 1, Statutes, § 150[c]; People v Price, 33 NY2d 831 [defendant's equal protection claim not addressed because statute was construed to not apply]; Childs v Childs, 69 AD2d 406, 418-421).
 
Penal Law § 245.01, when originally enacted (L 1967, c 367, § 1), "was aimed at discouraging 'topless' waitresses and their promoters (see, Practice Commentary by Denzer and McQuillan, McKinney's Cons Laws of N.Y., Book 39, Penal Law, § 245.01, p. 200)" (People v Price, 33 NY2d 831, 832, supra). Considering the statute's provenance, we held in Price that a woman walking along a street wearing a fishnet, see-through pull-over blouse did not transgress the statute and that it "should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged" (id. at 832). Though the statute and the rationale for that decision are different, we believe that underlying principle of People v Price (supra) should be followed.[n 1] We, therefore, conclude that Penal Law § 245.01 is not applicable to the conduct presented in these circumstances and that the City Court was correct in dismissing the informations.
 
F O O T N O T E
 
1. Contrary to the position of the concurrence (see concurring opn, at 4), nothing in the Legislature's repeal and replacement of former Penal Law § 245.01 (L 1983, ch 216), subsequent to our decision in Price, affects the holding of Price or our analysis here. The revised § 245.01 expanded the application of the former statute and prohibited full nudity by males and females (see, People v Hollman, 68 NY2d 202). In its definition of "private or intimate parts" as including women's breasts, however, the revised statute retained the same discriminatory infirmity which occasioned our decision in Price. We find no basis in the revised statute or in the statutory history for not giving effect to Price here (see, Bill Jacket, L 1983, ch 216, Governor's Approval Memorandum).
 
------------------------------------------------------------------------
Titone, J. (concurring):
 
Citing the maxim that wherever possible statutes should be construed so as to sustain their constitutionality (see, e.g., Matter of Sarah K., 66 NY2d 223, cert denied sub nom. Kosher v Stamatis, 475 US 1108; Loretto v Teleprompter Manhattan CATV Corp., 58 NY2d 143), the Court bypasses appellants' equal protection argument by holding that Penal Law § 245.01 simply does not apply "in these circumstances." That maxim is unhelpful here, however, since both the language and the history of Penal Law § 245.01 demonstrate quite clearly that the conduct with which appellants were charged is precisely the type of behavior that the Legislature intended to outlaw when it enacted Penal Law § 245.01. Thus, appellants' constitutional equal protection claim cannot be avoided and the only relevant legal maxim is the one that demands proof by the State that a classification based on gender be substantially related to the achievement of an important governmental objective (e.g., Caban v Mohammed, 441 US 380, 388, 393; People v Liberta, 64 NY2d 152, 168). Since that standard has not been satisfied here, I would hold that, as applied in these circumstances, Penal Law § 245.01 is unconstitutional and, for that reason, the charges against appellants should have been dismissed.
 
Appellants and the five other women who were arrested with them were prosecuted for doing something that would have been permissible, or at least not punishable under the penal laws, if they had been men -- they removed their tops in a public park, exposing their breasts in a manner that all agree was neither lewd nor intended to annoy or harass. As a result of this conduct, which was apparently part of an effort to dramatize their opposition to the law, appellants were prosecuted under Penal Law § 245.01, which provides that a person is guilty of the petty offense of "exposure" when he or she "appears in a public place in such a manner that the private or intimate parts of his [or her] body are unclothed or exposed." The statute goes on to state that, for purposes of this prohibition, "the private or intimate parts of a female person shall include that portion of the breast which is below the top of the areola."[n 1] The statute thus creates a clear gender-based classification, triggering scrutiny under equal protection principles (see, Craig v Boren, 429 US 190).
 
The majority has attempted to short-circuit this equal protection inquiry by holding that Penal Law § 245.01 is inapplicable to these facts. However, apart from a cryptic reference to People v Price (33 NY2d 831), which the majority admits involved a different statute and rationale, no explanation is offered as to why this facially applicable statute should not be applied here or what specific factor differentiates these circumstances from those in which the statute was intended to apply.
 
Price is inapt in this context because it involved the predecessor to the current Penal Law § 245.01 (L 1967, ch 367, § 1, amended L 1970, ch 40, § 1, repealed L 1983, ch 216, § 1), which was entitled "exposure of a female" and, as the majority acknowledges, "was aimed at discouraging 'topless' waitresses and their promoters" (People v Price, supra, at 832; see, Donnino, Practice Commentary, McKinney's Consol Laws of NY, Book 39, Penal Law § 245.01, at 299-300). Given that purpose, it made sense for the Court to hold in Price that the statute "should not be applied to the noncommercial, perhaps accidental, and certainly not lewd, exposure alleged" in that case (33 NY2d, at 832).[n 2]
 
In contrast, the current version of Penal Law § 245.01, which was adopted in 1983 to replace the statute at issue in Price (L 1983, ch 216, § 1), was specifically intended to expand the reach of the "public exposure" prohibition. The new provision was aimed at filling a gap resulting from the fact that the existing law prohibited women from appearing topless in public but contained no prohibition against either men or women appearing bottomless in public places (Bill Jacket, L 1983, ch 216, Governor's Approval Memorandum). The explicit purpose of the new law was to protect parents and children who use the public beaches and parks "from the discomfort caused by unwelcome public nudity" (id.; accord, Bill Jacket, L 1983, ch 216, Sponsors' Memorandum re A-5638; id., Letter dated May 31, 1983 from Assembly Member G.E. Lipshutz to Governor Cuomo re: A-5638). Simply put, the focus of the legislation was to proscribe nude sunbathing by ordinary citizens (see, People v Hollman, 68 NY2d 202). It thus cannot seriously be argued that the present version of Penal Law § 245.01 was intended to be limited, as its predecessor may have been, to commercially-motivated conduct.
 
Nor can it be argued that Penal Law § 245.01 was intended to be confined to conduct that is lewd or intentionally annoying. First, there is absolutely no support in the legislative history for such a construction. Second, a construction of Penal Law § 245.01 requiring lewdness would be of highly questionable validity, since it would render Penal Law § 245.00 [prohibiting the exposure of "intimate parts" "in a lewd manner"] redundant (see, Statutes, McKinney's Consol Laws of NY, Book 1, § 98 ["[a]ll parts of a statute must be harmonized…and effect and meaning must…be given to the entire statute"). Finally, whatever the Court may have said about the limitations of the predecessor provision (see, People v Price, supra), this Court has already applied the current version of Penal Law 245.01 to the public exposure of a person's "intimate parts," even where the conduct was merely an expression of a personal philosophy or a simple effort to "enhance…comfort [or] acquire an even tan" (People v Hollman, supra, at 206). Our analysis in People v Hollman (supra), thus plainly belies the limiting construction the majority now seems to adopt.
 
Accordingly, there is simply no sound basis for construing Penal Law § 245.01 so as to be inapplicable to the deliberate, nonaccidental conduct with which appellants were charged. The Court's reliance on the "presumption of constitutionality" in these circumstances is thus nothing more than an artful means of avoiding a confrontationwith an important constitutional problem. While it is true that statutes should be construed so as to avoid a finding of unconstitutionality if possible (Statutes, supra, § 150[c], at 321), courts should not reach for strained constructions or adopt constructions that are patently inconsistent with the legislation's core purpose (see, People v Dietze, 75 NY2d 47, 52- 53; cf., People v Mancuso, 255 NY 463, 474). In doing so here, the majority has gone well beyond the limits of statutory construction and has, in effect, rewritten a statute so that it no longer applies to precisely the conduct that the Legislature intended to outlaw.
 
The equal protection analysis that the majority has attempted to avoid is certainly not a complex or difficult one. When a statute explicitly establishes a classification based on gender, as Penal Law § 245.01 unquestionably does, the State has the burden of showing that the classification is substantially related to the achievement of an important governmental objective (e.g., Caban v Mohammed, supra at 388, supra; Craig v Boren, supra, at 197; People v Liberta, supra, at 168). The analysis may have been made somewhat more difficult in this case because of the People's failure to offer any rationale whatsoever for the gender-based distinction in Penal Law § 245.01. Nonetheless, in the absence of any discussion by the People, the objective to be achieved by the challenged classification can be readily identified.
 
It is clear from the statute's legislative history, as well as our own case law and common sense, that the governmental objective to be served by Penal Law § 245.01 is to protect the sensibilities of those who wish to use the public beaches and parks in this State (People v Hollman, supra, at 207; see, Bill Jacket, L 1983, ch 216, Governor's Approval Memorandum, supra; id., Sponsor's Memorandum, supra; id., Letter from Assembly Member G.E. Lipshutz to Governor Cuomo, supra). And, since the statute prohibits the public exposure of female -- but not male - - breasts, it betrays an underlying legislative assumption that the sight of a female's uncovered breast in a public place is offensive to the average person in a way that the sight of a male's uncovered breast is not. It is this assumption that lies at the root of the statute's constitutional problem.
 
Although protecting public sensibilities is a generally legitimate goal for legislation (see, e.g., People v Hollman, supra), it is a tenuous basis for justifying a legislative classification that is based on gender, race or any other grouping that is associated with a history of social prejudice (see, Mississippi Univ. for Women v Hogan, 458 US 718, 725 ["[c]are must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions"]). Indeed, the concept of "public sensibility" itself, when used in these contexts, may be nothing more than a reflection of commonly-held preconceptions and biases. One of the most important purposes to be served by the equal protection clause is to ensure that "public sensibilities" grounded in prejudice and unexamined stereotypes do not become enshrined as part of the official policy of government. Thus, where "public sensibilities" constitute the justification for a gender-based classification, the fundamental question is whether the particular "sensibility" to be protected is, in fact, a reflection of archaic prejudice or a manifestation of a legitimate government objective (cf., People v Whidden, 51 NY2d 457, 461).
 
Viewed against these principles, the gender-based provisions of Penal Law § 245.01 cannot, on this record, withstand scrutiny. Defendants contend that apart from entrenched cultural expectations, there is really no objective reason why the exposure of female breasts should be considered any more offensive than the exposure of the male counterparts. They offered proof that, from an anatomical standpoint, the female breast is no more or less a sexual organ than is the male equivalent (see, e.g., J McCrary, Human Sexuality [1973] 141). They further contend that to the extent that many in our society may regard the uncovered female breast with a prurient interest that is not similarly aroused by the male equivalent (but see Kinsey, Sexual Behavior in the Human Female [1953] 586-587; Kinsey, Sexual Behavior in Human Male [1948] 575; Wildman, Note on Males' and Females' Preference for Opposite-Sex Body Parts, 38 Psychological Reports 485-486), that perception cannot serve as a justification for differential treatment because it is itself a suspect cultural artifact rooted in centuries of prejudice and bias toward women. Indeed, there are many societies in other parts of the world -- and even many locales within the United States -- where the exposure of female breasts on beaches and in other recreational area is commonplace and is generally regarded as unremarkable.[n 3] It is notable that, other jurisdictions have taken the position that breasts are not "private parts" and that breast exposure is not indecent behavior (State v Parenteau, Ohio Misc 2d 10, 11, citing State v Jones, 7 NC App 165; State v Moore, 241 P2d 455; State v Crenshaw, 61 Haw 68; see also Duvallon v State, 404 So 2d 196), and twenty-two states specifically confine their statutory public exposure prohibitions to uncovered genitalia.[n 4]
 
The People in this case have not refuted this evidence or attempted to show the existence of evidence of their own to indicate that the non-lewd exposure of the female breast is in any way harmful to the public's health or well being. Nor have they offered any explanation as to why, the fundamental goal that Penal Law § 245.01 was enacted to advance -- avoiding offense to citizens who use public beaches and parks -- cannot be equally well served by other alternatives (see, Wengler v Druggists Mut. Ins. Co., 446 US 142, 151-152; Orr v Orr, 440 US 268, 281-283).
 
In summary, the People have offered nothing to justify a law that discriminates against women by prohibiting them from removing their tops and exposing their bare chests in public as men are routinely permitted to do. The mere fact that the statute's aim is the protection of "public sensibilities" is not sufficient to satisfy the state's burden of showing an "exceedingly persuasive justification" for a classification that expressly discriminates on the basis of sex (see, Kirchberg v Feenstra, 450 US 455, 461). Accordingly, the gender-based classification established by Penal Law § 245.01 violates appellants' equal protection rights and, for that reason, I concur in the majority's result and vote to reverse the order below.
 
F O O T N O T E S
 
1. Public exposure of a female's breast for the purposes of breastfeeding infants or "entertaining or performing in a play, exhibition, show or entertainment" is expressly excluded from the statutory prohibition.[return to text]
 
2. Significantly, the allegation in Price was that the defendant had been observed on a public street wearing a fishnet pullover which left portions of her breasts visible, prompting the Court to observe that, absent certain conditions, "legislation may not control the manner of dress" (33 NY2d, at 832). That consideration is obviously not relevant here, where appellants' conduct was obviously intended as a political, rather than a fashion, statement.[return to text]
 
3. Interestingly, expert testimony at appellants' trial suggested that the enforced concealment of women's breasts reinforces cultural obsession with them, contributes toward unhealthy attitudes about breasts by both sexes and even discourages women from breastfeeding their children. [return to text]
 
4. See, Alaska Stat § 11.41.460; Cal Penal Code Ann § 314 [West]; Col Rev Stat § 18-7-302; Idaho Code § 18-4104; Iowa Code § 709.9; Kan Stat Ann § 21-4301; Ky Rev State Ann § 510-150; Me Rev Stat Ann 17-A, § 854; Mo Rev Stat § 566-130; Mont Code Ann § 45-5-504; Neb Rev Stat § 28.806; NH Rev Stat Ann § 645.1; ND Cent Code § 12.1-20-12.1; NM Stat Ann 30-9-13; Okla Stat, tit 21, § 1021; Or Rev Stat § 163.465; RI Gen Laws § 11-45.1; SD Codified Laws Ann § 22-24-1; Tenn Code Ann § 39-13.511; Tex Penal Code Ann § 21.08; Utah Code Ann § 76-9-702; Wisc Stat § 944.20; see also Robins v Los Angeles County, 56 Cal Rptr 853. [return to text]
 
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Order reversed and informations dismissed in a memorandum. Chief Judge Wachtler and Judges Kaye, Hancock and Bellacosa concur. Judge Titone concurs in result in an opinion in which Judge Simons concurs.

 

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