HomeMy WebLinkAbout1991-3386 Lewd Conduct ORDINANCE NO. %) . T (
AN ORDINANCE relating to public safety and morals; prohibiting
public urination and defecation; defining and
prohibiting `indecent exposure; defining and pro-
hibiting lewd conduct and creating exceptions to
such prohibition; enacting Sections 6.04.360 and
6.04.370 as new sections and amending Section
6.04.375 all of the City of Yakima Municipal Code.
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Section 6.04.360 is hereby enacted as a new
section of the City of Yakima Municipal code to read as follows:
"6.04.360 - Urinating or Defecating in a Public Place.
A. It is unlawful for any person to urinate or
defecate in any public place or place open or available to the
public, other than in a facility designed or provided for that
• purpose.
B. Violation of this section shall be punishable by a
fine only of no more than Two Hundred and Fifty Dollars
($250.00)."
Section 2. Section 6.04.370 is hereby enacted as a new
section of the City of Yakima Municipal Code to read as follows:
"6.04.370 - Indecent Exposure.
A. It is unlawful for any person to willfully make an
indecent exposure in a public place or at a place and under cir-
cumstances where such exposure may be observed by any member of
the public.
B. An indecent exposure is the exposure of a person's
genitals or parts thereof, pubic hair or pubic area, cleavage of
the buttocks or female breast below the top of the areola.
C. This prohibition shall riot be construed to limit or
restrict lawful expressive nude activity. Any exposure accom-
plished primarily for the purpose of sexual gratification or
stimulation of one's self or another is not lawful expressive nude
activity."
•
(Ord /Indecent.1)
Page 1
Section 3. Section 6.04.375 of the City of Yakima Municipal
Code is hereby amended to read as follows:
411
"6.04.375 - Lewd Conduct.
A. It is unlawful for any person to willfully perform
a lewd act, as hereinafter defined, in a public place or at a
place and under circumstances where such act may be observed by
any member of the public when such act, or the simulation thereof,
is done for the purpose of obtaining or giving of sexual gratifi-
cation or stimulation.
B. As used in this section, lewd act means:
1. The touching, caressing, or fondling of the
genitals of any person by that person or by another; the touching,
caressing, or fondling of a female breast or breasts by that
female or by another person;
2. Sexual intercourse involving two or more
persons, regardless of their sex, or any act of sexual conduct
between persons involving the sex organs of one person and the
mouth or anus of another; or
3. Masturbation, manual or instrumental; or
4. Penetration of the vagina or rectum by any
411
object.
C. This Section shall not be construed to prohibit
lawful:
1. Plays, operas, musicals, singing performances,
comedian's routines, or any other dramatic or performance works;
or
2. Classes, seminars and lectures held for
serious, scientific or educational purposes; or
3. Exhibitions or dances which constitute
expressive nude activity; or
4. Political expression."
Section 4. This ordinance shall be in full force and effect
30 days after its passage, approval, and publication as provided
•
(Ord /Indecent.1)
Page 2
•
0 by law and by the City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this
day of 4 4us7 /3 1991.
C;24t
Mayor
ATTEST:
City Clerk
Publication Date: o /? 9t
Effective Date:
•
(Ord /Indecent.1)
Page 3
411 f BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT Ct
Item No. a
For Meeting Of August 13, 1991
ITEM TITLE: An Ordinance relating to public safety and morals;
prohibiting public urination and defecation; defining and
prohibiting indecent exposure; defining and prohibiting lewd
conduct and creating exceptions to such prohibition; enacting
Sections 6.04.360 and 6.04.370 as new sections and amending
Section 6.04.375, all of the City of Yakima unicipal Code.
SUBMITTED BY: John Vanek, City Attorne
Pleas Green, Chief of li e
CONTACT PERSON /TELEPHONE: Jeff B. West /575 -6030
SUMMARY EXPLANATION: The City of Yakima's current Lewd Conduct
Ordinance, Section 6.04.375 of the Yakima Municipal Code, is
outdated and is subject to constitutional impairment by the Court
of Appeal's decision of Seattle v. Johnson, 58 Wn.App. 64 (1990).
In order to remedy these defects in the current ordinance, it is
tb recommended that the enclosed ordinances be adopted. The Johnson
case requires that the City's ordinance contain constitutional
free expression exemptions.
(Continued on Page 2)
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* RESOLUTION X ORDINANCE CONTRACT MINUTES PLAN /NAP
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* NOTIFICATION LIST OTHER *
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* APPROVED Fat SUBMITTAL: ' *
* CITY PIANAGER *
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STAFF RECOMMENDATION: Pass ordinance.
BOARD /COMMISSION RECOMMENDATION: N/A
• COUNCIL ACTION:
STATE /LEWD
AGENDA STATEMENT (Page 2)
Item No.
411
Meeting of August 13, 1991
SUMMARY EXPLANATION: (Continued)
The proposed ordinance would separate from the current lewd con-
duct ordinance the prohibition against urinating or defecating in
public. It would also change the penalties for that violation.
The current ordinance has a maximum penalty of 90 days in jail and
a $500 fine. It is proposed that the penalties be changed to a
maximum fine of $250 for urinating or defecating in public. The
City is not required to provide a court - appointed attorney in
those cases in which jail time is not a possibility; thus, this
proposed change should reduce the City's exposure while retaining
full enforcement in light of current enforcement practices.
A section is enacted governing indecent conduct. In this section
the definition of "indecent exposure" has been altered. Due to
recent changes in the style of female swimwear, prohibiting expo-
sure of the buttocks as a whole does not seem practical. Thus,
the prohibition has been amended to prevent exposure of the
cleavage of the buttocks. Further note that exclusions have been
added which conform to the language of the Johnson case.
Finally, a lewd conduct ordinance is proposed as Section 6.04.375.
The proposed language closely tracks the existing lewd conduct
ordinance. It adds a section of exclusions. The language of
these exclusions is adopted from O'Day v. King County, 109 Wn.2d
796 (1988).
Also of interest, the current ordinance has extensive prohibitions
against the owners of clubs or patrons of clubs which provide lewd
entertainment. These prohibitions are not contained in the cur-
rent ordinance. However, the City retains the ability to enforce
against owners or patrons because of the broad definition of
"principle" contained in Section 6.02.020 of the Yakima Municipal
Code. Under the language of this section, anyone who aids and
abets in the commission of a violation of a lewd conduct ordinance
would be in violation of the ordinance; hence the owner of a club
or a patron of a club which featured lewd entertainment would be
aiding and abetting in the act and thus be in violation of the
lewd conduct ordinance. In short, the change in language does not
change the City's enforcement posture.
The Ordinance has been reviewed by Chief of Police Green, who
recommends its adoption.
STATE /LEWD