Loading...
HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 09/03/2019 - FIRST READING OF ORDINANCE NO. 111, 2019, AMENDINGAgenda Item 9 Item # 9 Page 1 AGENDA ITEM SUMMARY September 3, 2019 City Council STAFF Tyler Marr, Senior Project Manager Ingrid Decker, Legal SUBJECT First Reading of Ordinance No. 111, 2019, Amending Section 17-142 of the Code of the City of Fort Collins Regarding Public Nudity. EXECUTIVE SUMMARY The purpose of this item is to amend the public nudity City Code provisions to make them consistent with the permanent injunction issued by the United States District Court and agreed to by the City. STAFF RECOMMENDATION Staff recommends adoption of the Ordinance on First Reading. BACKGROUND / DISCUSSION In October 2015, the City Council adopted Ordinance No. 134, 2015, amending Section 17-142 of the City Code, which addresses public nudity and prohibits toplessness by females in public places, with certain exceptions. The plaintiffs, a group named Free the Nipple - Fort Collins (“FTN”), and two individuals named Brittiany Hoagland and Samantha Six, sued the City in May 2016 challenging Section 17-142 based on claims that it violated the First and Fourteenth Amendments of the U.S. Constitution and the Equal Rights Amendment of the Colorado Constitution. The plaintiffs sought a preliminary injunction against enforcement of Section 17-142 against female toplessness, and District Court Judge Brooke Jackson granted a preliminary injunction based on the Fourteenth Amendment claim in February 2017. He had previously dismissed the First Amendment claim. The City appealed this preliminary injunction decision, and after oral arguments on that appeal in January 2018, the three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued an order on February 15, 2019, upholding Judge Jackson’s preliminary injunction. The ruling cited that the Equal Protection Clause of the US Constitution prohibits Fort Collins and other governments from restricting toplessness in public by females only. On July 24, 2019, the US District Court made the preliminary injunction permanent. As a result, and in order to remove confusion and delete provisions from City Code that the City has no authority to enforce, staff is bringing forward these Code changes that remove the problematic language. The state statute on public indecency remains in effect. It prohibits exposure of the female breast in a public place where it may be viewed by members of the public, but only if it is done with intent to arouse or to satisfy the sexual desire of any person. -1- ORDINANCE NO. 111, 2019 OF THE COUNCIL OF THE CITY OF FORT COLLINS AMENDING SECTION 17-142 OF THE CODE OFTHE CITY OF FORT COLLINS REGARDING PUBLIC NUDITY WHEREAS, Section 17-142 of the City Code currently prohibits public exposure of the buttocks, genitals, or lower part of the female breast with some exceptions (the “Nudity Ordinance”); and WHEREAS, in 2016 Free the Nipple – Fort Collins and two individual plaintiffs sued the City in federal district court alleging that the Nudity Ordinance violates their rights of free speech and equal protection under the United States Constitution; and WHEREAS, in February 2017, the district court enjoined the City from enforcing the Nudity Ordinance to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public, and in February 2019 the Tenth Circuit Court of Appeals affirmed the district court’s order; and WHEREAS, in July 2019, the City and the plaintiffs stipulated to a permanent injunction enjoining the City of Fort Collins from enforcing the Nudity Ordinance to the extent that it prohibits women, but not men, from knowingly exposing their breasts in public, and the district court entered an order making such injunction permanent; and WHEREAS, to prevent confusion for residents, visitors and law enforcement about what conduct is or is not prohibited within the City, the City Council finds that it is the best interests of the City to amend the Nudity Ordinance to eliminate the prohibition on exposure of the female breast. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby makes and adopts the determinations and findings contained in the recitals set forth above. Section 2. That Section 17-142 of the Code of the City of Fort Collins is hereby amended to read as follows: Sec. 17-142. - Public nudity. (a) No person who is ten (10) years of age or older shall intentionally expose any portion of his or her genitals or buttocks while that person is located: -2- (1) In a public right-of-way, in a natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place; or (2) On private property if the person is in a place that can be viewed from the ground level by another who is located on public property and who does not take extraordinary steps, such as climbing a ladder or peering over a screening fence, in order to achieve a point of vantage. (3) As used in this Section, public place shall mean a place to which the public or a substantial number of the public has access, and includes but it not limited to highways including sidewalks, transportation facilities, school, places of amusement, parks, playgrounds and the common areas of public and private buildings and facilities, and shall not include any theater, concert hall, museum, school or similar establishment to the extent the same is serving as a performance venue. (b) No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple while located: (1) In a public right-of-way, in a natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place; or (2) On private property if the person is in a place that can be viewed from the ground level by another who is located on public property and who does not take extraordinary steps, such as climbing a ladder or peering over a screening fence, in order to achieve a point of vantage. (3) Public place in this Section shall be defined as in Section (a)(3) above. (cb) The prohibition in subsection (a) does not extend to: (1) Persons undergoing bona fide emergency medical examinations or treatment; or (2) Persons located in dressing rooms, shower rooms, bathrooms, or in other enclosed areas specifically designated for changing clothes or in which nudity is explicitly permitted; or. (d) The prohibition in subsection (b) does not extend to women breastfeeding in places they are legally entitled to be. -3- Introduced, considered favorably on first reading, and ordered published this 3rd day of September, A.D. 2019, and to be presented for final passage on the 17th day of September, A.D. 2019. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 17th day of September, A.D. 2019. __________________________________ Mayor ATTEST: _______________________________ City Clerk