HomeMy WebLinkAbout05/19/2009 03C-3 Citizen Service Request Response RE: Regulating Attire at Coffee Stands CITY OF YAKIMA
LEGAL
DEPARTMENT
200 South Third Street, Yakima, WA 98901 -2830 (Phone) 509- 575 -6033 (Fax) 509- 575 -6160
MEMORANDUM
May 13, 2009
TO: David Edler, Honorable Mayor
Yakima City Council Members
FROM: Cynthia Martinez, Senior Assistant City Attorney
SUBJECT: Regulating attire at coffee stands
Nudity and Indecent Exposure: In response to regulating attire at
ID coffee stands, some cities are adopting or strengthening their codes regulating
nudity and indecent exposure. As I have previously stated, YMC 6.55.020 which
prohibits indecent exposure within the City of Yakima is a strong ordinance,
however, recent events have lead me to believe there is room for improvement.
Below is the text of our current ordinance:
YMC 6.55.020 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 circumstances where such exposure may
be observed by any member of the public.
B. An indecent exposure is an exposure of a person's genitals or parts
thereof, pubic hair, or pubic area, cleavage of the buttocks or female breasts
below the top of the areola.
C. This prohibition shall not be construed to limit or restrict lawful
expressive nude activity. Any exposure accomplished primarily for the purpose
of sexual gratification or stimulation of one's self or another is not lawful
expressive nude activity. ,
D. Except as provided in subsections (1) and (2) of this section, indecent
exposure is a misdemeanor:
(1) Indecent exposure is a gross misdemeanor on the first offense if the
person exposes himself or herself to a person under the age of fourteen years;
(2) Indecent exposure is a Class C felony if the person has previously
• been convicted under this section or of a sex offense as defined in
RCW 9.94A.030.
cim/memo- bikinibarista/page 1 of 3
Memo to Mayor and
City Council
May 13, 2009
Page - 2
Individuals have been cited with violating this ordinance and we have
successfully prosecuted those individuals. Recently, I asked the Yakima Police
Department to investigate a complaint alleging indecent exposure of a barista.
The Officer was confused with the term, "cleavage of the buttocks," and asked
me to explain what he should be citing. It was hard for me to succinctly describe
the violation, which is not good for law enforcement, and definitely not good in
front of a jury. I immediately began working on the proposed changes you see
today.
The phrase, "cleavage of the buttocks," is confusing and may not provide
clear notice of unlawful behavior. Attached is a draft of a proposed indecent
exposure ordinance. The changes strive to remove this confusion and will
clearly put the espresso stands on notice that a barista dressed in a G- strings is
violating the law. One of the proposed changes would also allow, under certain
circumstances, the City to cite the owner of the establishment as well as the
offending employee. Officer and jury confusion will be alleviated by these
proposed changes.
The bikini coffee stands are testing the limits across the State. With the
exception of the addition of the owner liability language, the proposed ordinance
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is the same as our current ordinance, with more descriptive terms. Although
have added a couple of clothing descriptors, the offense is not, "wearing a G-
string," but indecent exposure of the buttocks.
Adult Entertainment: The Yakima Municipal Code section 15.09.200
does regulate adult businesses. Chapter 15.09.200 contains nineteen different
definitions to explain what qualifies as an adult business. "Adult entertainment"
is defined as follows:
"Adult entertainment" means any exhibition or dance of any type,
pantomime, modeling or any other performance, including motion
pictures, which involves the exposure to view any specified anatomical
areas or involves any specified sexual activities.
"Specified Anatomical Areas" means (1) less than completely and
opaquely covered: human genitals pubic region, buttock, and female
breast below a point immediately above the top of the areola; and (2)
human male genitals in a discernible turgid state of, even if completely
and opaquely covered.
After simply reading the definitions above one may believe the espresso
stands are indeed adult entertainment businesses. The problem with that
4 110
conclusion is that these definitions must be read in the context of the other
Memo to Mayor and
City Council
• May 13, 2009
Page - 3
seventeen definitions contained in the ordinance. When that is done, the
espresso stands in question do not fit squarely within the adult entertainment
rubric. First, looking only at the definitions above, the documented types of
clothing worn by the baristas and the resulting bodily exposures do not classify
these businesses as adult entertainment.
Admittedly, the City of Yakima does not have someone monitoring the
barista's dress at all times, and it may be that there has been an occasion where
the baristas have exposed enough to fall within the adult entertainment
definition. This idea raises the second issue: If a sporadic exposure occurs by
a single employee, does the business turn into an adult entertainment business?
The definition for "Specified sexual exhibition" contained in the ordinance
requires that the exhibition be conducted on a regular basis.
Finally, the purpose of the business appears to be the sale of coffee and
not the sale of the exhibition. An argument could be made that the dress is more
of an advertising scheme similar to the one utilized by the Hooter's Restaurant
chain. This argument would be supported by the fact that the coffee is priced
normally and contains no surcharge for the exhibition.
At some point the espresso stands in question may push the envelope to
• the point where they may appropriately be described as adult entertainment,
however, at this point to classify the espresso stands as an adult business is a
risky proposition and may not have the desired result. The better approach is to
cite any incident of indecent exposure. The barista dress exhibited so far is not
allowing indecent exposure, and as stated in a previous memo, an individual's
right to express themselves through clothing choice is an expressive activity
protected by the First Amendment of the United States Constitution and the
Washington State Constitution. Regulating clothing choice immediately raises
constitutional questions.
Labor and Industries (L&I) and the Health District: Some cities have
approached L &I and the Health District about regulating dress in businesses
handling hot liquids, however, neither of these agencies have expressed any
interest in regulating this conduct. Attached is a draft piece of legislation
regulating attire while serving food or beverage. The State budget concerns
completely monopolized the last legislative session and the proposed bill did not
move. The City of Yakima could join the effort to move this legislation or a
similar piece of legislation forward next session.
The attached piece of legislation is drafted too narrowly and doesn't focus
on the health concerns. A piece of legislation that emphasizes safety and
requires a safety garment, such as an apron, would be a more desirable
approach.
• cc. Dick Zais, City Manager
Jeff Cutter, City Attorney
ORDINANCE NO. 2009 -
AN ORDINANCE An ordinance relating to Public Safety; amending section
6.55.010 of the City of Yakima Municipal Code by adding a
definition for Breast, Buttocks, Public place, and Public place
provided or set aside for nudity; amending section 6.55.020 of the
City of Yakima Municipal Code by prohibiting the exposure of
certain body parts, allowing a person who facilitates the exposure
to also be criminally charged and providing other clarifying
language for the offense of Indecent Exposure; and adding a new
section 6.55.240 providing a severability clause for Chapter 6.55
of the City of Yakima Municipal Code.
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Section 6.55.010 of the City of Yakima Municipal Code is hereby
amended to read as follows:
"6.55.010 Definitions.
As used in this chapter:
"Breast" means the human female mammary gland.
"Buttocks" means the areas at the rear of the body which lies between two imaginary
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lines running parallel to the ground when a person is standing, the first or top such line
drawn at the top of the cleavage of the nates and the second or bottom line drawn at the
lowest visible point of this cleavage or the lowest point of the curvature of the fleshy
protuberance, whichever is lower, and between two imaginary lines on each side of the
body , which line are perpendicular to the ground and to the horizontal lines described
above, and which perpendicular line are drawn through the point at which each nate
meets the out side of each leg.
"Minor" means any person under-less than eighteen years of age.
"Public place" means any location open to the common and general use, participation,
or enjoyment of the public where the public is present or likely to be present, or any
location where a person may reasonably be expected to be observed by the public; this
definition includes, but is not limited to, places open to the public for business or
commercial purposes.
"Public place provided or set apart for nudity" means a public place such as public
restroom, an enclosed functional shower or locker room facility, an enclosed sauna, a
motel or hotel room designed and intended for sleeping accommodations, or the
location of a bona fide private club whose membership as a whole engages in social
nudism or naturalism (a nudist camp), an adult entertainment establishment as defined
under chapter 15.09.200 of the City of Yakima Municipal Code, and any similar public
places in which nudity is necessarily and customarily expected outside of the home and
the sphere of privacy constitutionally protected therein.
"Sexual contact" means any touching of the sexual or other intimate parts of a person
done for the purpose of gratifying sexual desire of either party or a third party.
"Significant relationship" means a situation in which the perpetrator is:
cim/ordinance/indecentexposure/ page 1 of 3
1. A person who undertakes the responsibility, professionally or voluntarily, to
provide education, health, welfare, or organized recreational activities principally for
minors; or
2. A person who in the course of his or her employment supervises minors.
"Abuse of a supervisory position" means a direct or indirect threat or promise to use
authority to the detriment or benefit of a minor.
"Married" means anyone who is legally married to another, but does not include a
person who is living separate and apart from his or her spouse and who has filed in an
appropriate court for legal separation or for dissolution of his or her marriage. (Ord. 96-
75 § 14 (part), 1996)."
Section 2. Section 6.55.020 of the City of Yakima Municipal Code is hereby
amended to read as follows:
"6.55.020 Indecent exposure.
A. It is unlawful for any person to willfully make an indecent exposure in a public
place other than a public place provided or set apart for nudity, or to knowingly permit
another person 10 years of age or older to make an indecent exposure in a public place
other than a public place provided or set apart for nudity.
B. An indecent exposure is an exposure of:
1. A person's genitals or parts thereof; or
410 2. A person's pubic hair, or pubic area; or
3. One third of the buttocks centered over the cleavage of the buttocks for the
length of the cleavage. This area is more particularly described as that portion of the
buttocks which lies between the top and bottom of the buttocks, and between two
' imaginary straight lines, one on each side of the anus and each line being located one
third of the distance from the anus to the outside perpendicular line defining the
buttocks, and each line being perpendicular to the ground and to the horizontal lines
defining the buttocks; or the cleavage of the buttocks or
4. The female breasts below the top of the areola, which area shall be
reasonably compact and contiguous to the areola.
5. Applicable provisions:
a. The body areas listed in this section are exposed to view unless
covered with anything other than an opaque covering.
b. Attire which is insufficient to comply with these requirements includes
but is not limited to those items commonly known as G- strings, T- backs, dental
floss, and thongs.
c. Body paint, body dye or tattoos, although opaque, do not constitute
adequate coverage of the body areas described above.
C. This prohibition shall not be construed to limit or restrict lawful expressive nude
activity, including but not limited to;
1. The act of breastfeeding or expressing breast milk; or
2. Classes, seminars, and lectures held for serious scientific or educational
purposes; or
3. Lawful, first amendment protected protests; or
4. When the conduct of being nude cannot constitutionally be prohibited by this
411111 section because it is otherwise protected by the United States Constitution or the
Washington State Constitution. Federal and Washington case law interpreting and
cim/ordinance /indecentexposure / page 2 of 3
applying constitutional protections shall control the applicability of this exception in any
instance where the exception is claimed, and the nude conduct shall be excepted •
pursuant to this paragraph only where constitutional law requires such exception.
Any exposure accomplished primarily for the purpose of sexual gratification or
stimulation of one's self or another is not lawful expressive nude activity.
D. Except as provided in subsections (1) and (2) of this section, indecent exposure
is a misdemeanor.
(1) Indecent exposure is a gross misdemeanor on the first offense if the person
exposes himself or herself to a person under the age of fourteen years;
(2) Indecent exposure is a Class C felony if the person has previously been
convicted under this section or of a sex offense as defined in RCW 9.94A.030. (Ord.
200438 § 1, 2004: Ord. 98-3 § 37, 1998: Ord. 96-75 § 14 (part), 1996: Ord. _ -2009 §_,
2009; passed , 2009)."
Section 3. Section 6.55.240 entitled, "Severability," is hereby added as a new
section to Chapter 6.55 of the City of Yakima Municipal Code and shall read as
follows:
"If any section, subsection, paragraph, sentence, clause or phrase of this chapter
is declared unconstitutional or invalid for any reason, such decision shall not affect
the validity of the remaining parts of the particular section or of this chapter."
Section 4. This ordinance shall be in full force and effect 30 days after its
passage, approval, and publication as provided by law and by the City Charter.
PASSED BY THE CITY COUNCIL signed and approved this 19 day of May,
2009.
David Edler, Mayor
ATTEST:
City Clerk
Publication Date:
Effective Date:
•
cim/ordinance/indecentexposure/ page 3 of 3
BILL REQUEST - CODE REVISER'S OFFICE
•
BILL REQ. #: H- 1133.2/09 2nd draft
ATTY /TYPIST: AL:mos
BRIEF DESCRIPTION: Requiring certain clothing when serving food or
beverage.
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•
410
1 AN ACT Relating to requiring certain clothing when serving food or
2 beverage; and adding a new section to chapter 49.17 RCW.
3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 1111
4 NEW SECTION. Sec. 1. A new section is added to chapter 49.17 RCW
5 to read as follows:
6 Any person engaged in selling, serving, or providing to the general
7 public any prepared food or beverage through a window, porthole, or
8 other opening in an otherwise enclosed structure must be clothed in a
9 manner ensuring the torso is covered by opaque material composed of
10 tightly woven or impermeable textiles from a location four inches below
11 the collar bone to five inches below the pelvis in a manner determined
12 necessary by the director to advance the remedial purposes of this
13 chapter.
- -- END - --
i
Code Rev /AL:mos 1 H- 1133.2/09 2nd draft