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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 411 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 11111 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. 1111 • 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