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Home My WebLink About2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 019A - EX A - AGENDA ITEM - OCT 20, 2015Agenda Item 18 Item # 18 Page 1 AGENDA ITEM SUMMARY October 20, 2015 City Council STAFF Tyler Marr, Graduate Management Assistant SUBJECT First Reading of Ordinance No. 134, 2015, Making Certain Amendments to Section 17-142 of the Code of the City of Fort Collins Related to Public Nudity. (Option 1 or Option 2) EXECUTIVE SUMMARY The purpose of this item is to bring forth two potential options to the current City Code provisions concerning public nudity for consideration in light of recent citizen concerns regarding the prohibition on female toplessness in Fort Collins. Both options would update the section of the Code to read as “Public Nudity” rather than “Public Indecency.” Both options also include exceptions to the provisions for young children, changing areas, medical situations, and performance venues. Option 1 would keep the provision in the Code that does not allow for female toplessness, while adding exceptions, including an exception for breastfeeding mothers. Option 2 would update the Code provisions by allowing female toplessness within the City and specifically prohibiting all nudity below the waist for both sexes, with certain limited exceptions. STAFF RECOMMENDATION Staff has no recommendation. BACKGROUND / DISCUSSION The current public indecency code reads as follows (Sec 117-142): “No person shall knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks of either sex or the breast or breasts of a female are exposed.” In light of recent citizen concerns regarding the prohibition of female toplessness, Council requested that staff draft new options for consideration. The following two options change the term “indecency” to “nudity,” define the public places in which nudity is prohibited, and provide exceptions for various situations, which include:  Young children (under 10)  Bona fide medical examinations or emergencies  Changing areas The differences between the ordinances are that one leaves the distinction in place between males and females, keeping it illegal for females to be topless in public, but provides for protections that do not currently exist, while the other removes reference to the specific sexes and allows for all toplessness within the City. Option 1: - Maintain Current Standards while Providing Exceptions This Option would update the City Code by providing exceptions of the Code provisions for: Fort Collins 0001 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 1 of 25 Agenda Item 18 Item # 18 Page 2  Breastfeeding mothers  Young children (under ten)  Those undergoing bona fide medical examinations or emergencies  Those in changing areas or other places where nudity is explicitly allowed. Option 1 adds a definition of “public place,” and keeps the language in the Code that prohibits the display of female breasts. Option 2: - Remove Prohibition of Female Toplessness This Option would remove the language in the City Code pertaining to female breasts. It outlines that no person may be nude below the waist by stating the specific body parts that are to remain covered. This Ordinance also adds exceptions for:  Young children (under 10)  Bona fide medical examinations or emergencies  Changing areas Option 2 also adds a definition of “public place”. This Option would update the Code to be similar to the City of Boulder, which also allows for both male and female breasts to be exposed. The following is a chart depicting prohibition on toplessness in other local jurisdictions: Cities Topless Prohibitions Boulder None Colorado Springs Exposure of female breasts with the element of intent to arouse or alarm Denver None Greeley Lewd exposure, including the breasts of either sex, and the element of intent to arouse or alarm Loveland Female breasts below the top of the nipple It is important to note that the state law is as follows: C.R.S. Section 18-7-301. Public indecency. (1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency: (a) An act of sexual intercourse; or (b) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, § 1, effective August 11, 2010.) (c) A lewd exposure of an intimate part as defined by section 18-3-401 (2) of the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of any person; or (d) A lewd fondling or caress of the body of another person; or (e) A knowing exposure of the person's genitals to the view of a person under circumstances in which such conduct is likely to cause affront or alarm to the other person. (2) (a) Except as otherwise provided in paragraph (b) of this subsection (2), public indecency is a class 1 petty offense. (b) Public indecency as described in paragraph (e) of subsection (1) of this section is a class 1 misdemeanor if Fort Collins 0002 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 2 of 25 Agenda Item 18 Item # 18 Page 3 the violation is committed subsequent to a conviction for a violation of paragraph (e) of subsection (1) of this section or for a violation of a comparable offense in any other state or in the United States, or for a violation of a comparable municipal ordinance. (3) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, § 1, effective August 11, 2010.) The State’s definition of “intimate parts” in Section 18-3-401(2) is as follows: “Intimate parts” means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person.” BOARD / COMMISSION RECOMMENDATION Both the Women’s Commission and the Human Relations Commission have provided input regarding this item and have decided to support elimination of the current prohibition on public exposure of the female breast. A memo from the HRC is provided detailing its reasoning (Attachment 1). PUBLIC OUTREACH Public outreach was conducted in the form of an online survey that was available from October 5th to October 12th. The primary goal of this survey was to gauge which option responding citizens were most in favor of and gather demographic information about them. The results of the survey are attached to this document (Attachment 2). Major themes of the comments that were generated from the survey are also attached. (Attachment 3) . A complete compilation of the comments can be found at fcgov.com/toplessresults The survey was promoted through press release, the City’s website, and social media. ATTACHMENTS 1. HRC Recommendation (PDF) 2. Public Nudity Input Comment Themes (PDF) 3. Public Input Poll Summary Report (PDF) 4. Powerpoint presentation (PDF) Fort Collins 0003 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 3 of 25 October 9, 2015 To: Mayor Wade Troxell Council Members: Gino Campana, Ross Cunniff, Gerry Horak, Ray Martinez, Bob Overbeck, Kristin Stephens From: Fort Collins Human Relations Commission Re: Updating Municipal Code 17-142: Public Indecency Ordinance The Current Ordinance: No person shall knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks of either sex or the breast or breasts of a female are exposed. Members of the HRC believe this ordinance would be more inclusive by not addressing gender and therefore not suggesting limits to gender categories but instead relying on the word person to indicate that everyone is affected equally. On October 8, 2015, members of the Human Relations Commission unanimously voted to encourage City Council to make one of the following changes to the ordinance: 1. Delete the following words from the current ordinance: …of either sex or the breast or breasts of a female…so the ordinance would read: No person shall knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks are exposed. OR 2. Change the ordinance so it is similar to Colorado Revised Statute 18-7-301 (2015). (Statute 18-7-301 and the meaning of intimate parts as defined in statute 18-3-401 are attached.) ATTACHMENT 1 Fort Collins 0004 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 4 of 25 COLORADO REVISED STATUTES TITLE 18. CRIMINAL CODE ARTICLE 7. OFFENSES RELATING TO MORALS PART 3. PUBLIC INDECENCY C.R.S. 18-7-301 (2015) 18-7-301. Public indecency (1) Any person who performs any of the following in a public place or where the conduct may reasonably be expected to be viewed by members of the public commits public indecency: (a) An act of sexual intercourse; or (b) (Deleted by amendment, L. 2010, (HB 10-1334), ch. 359, p. 1707, § 1, effective August 11, 2010.) (c) A lewd exposure of an intimate part as defined by section 18-3-401 (2) of the body, not including the genitals, done with intent to arouse or to satisfy the sexual desire of any person; or (d) A lewd fondling or caress of the body of another person; or (e) A knowing exposure of the person's genitals to the view of a person under circumstances in which such conduct is likely to cause affront or alarm to the other person. TITLE 18. CRIMINAL CODE ARTICLE 3. OFFENSES AGAINST THE PERSON PART 4. UNLAWFUL SEXUAL BEHAVIOR C.R.S. 18-3-401 (2015) 18-3-401. Definitions (2) "Intimate parts" means the external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person. Fort Collins 0005 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 5 of 25 Comment Themes from Public Nudity Public Input 1. Allowing female toplessness threatens the family friendly status of Fort Collins/ I would consider moving if passed/ challenging to raise children as desired 2. Why doesn’t the City consider prohibiting men from being topless as well? 3. Modernize/21st Century America has no place for discrimination/ “Get with the times” 4. What a waste of time/”Doesn’t the City have more pressing issues or better things to do?” ATTACHMENT 2 Fort Collins 0006 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 6 of 25 / '+"$ '*(& 0 ""$ *+## 1 (#$ %( 2 ! 6-- ! 6-- !'" Items related to Public Nudity 10-20-15 Tyler Marr ATTACHMENT 4 Fort Collins 0011 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 11 of 25 Background • Citizen concerns about gender equality of existing public indecency ordinance • Two options for updating • Enhanced status quo • Removal of prohibition of female toplessness • Online public opinion poll from October 5-12 2 Fort Collins 0012 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 12 of 25 Public Input 3 • Input received from Women’s Commission and Human Relations Commission • Online poll • 8,800 responses; 6,800 unique IP addresses Fort Collins 0013 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 13 of 25 59% 39% 2% Of the Update Options, Which do you Most Support? Maintain Policy, Provide Breastfeeding Exception Allow Women to be Topless Uncertain 4 *Only includes unique IP addresses Fort Collins 0014 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 14 of 25 Comment Themes • Concerns about family values/modesty if female toplessness is allowed • What about making men cover up chests? • “Get with the times”/Modernize • “Doesn’t the City have better things to do?” 5 Fort Collins 0015 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 15 of 25 6 Option Overview • Both options make exceptions: – Young children – Performance venues – Changing areas – Medical emergencies • Both options change language from indecency to nudity Fort Collins 0016 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 16 of 25 Option 1 Enhanced Status Quo • Keeps language intact that does not allow for females to be topless in public • Adds exception for breastfeeding mothers 7 Fort Collins 0017 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 17 of 25 Option 2 Allow Female Toplessness • Specifically outlines what is prohibited – all nudity below the waist • Removes code provision pertaining to female breasts 8 Fort Collins 0018 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 18 of 25 Ordinance No. 134 Options 1. Option 1 - maintain current language that does not allow for female toplessness, but provide for breastfeeding exception 2. Option 2 - change language in the public nudity code provision to remove mention of female breasts and allow for female toplessness 9 Fort Collins 0019 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 19 of 25 - 1 - OPTION 1 ORDINANCE NO. 134, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING CERTAIN AMENDMENTS TO SECTION 17-142 OF THE CODE OF THE CITY OF FORT COLLINS RELATED TO PUBLIC NUDITY WHEREAS, some citizens have expressed concerns regarding the current prohibition of the exposure of the female breast in public places in the City; and WHEREAS, City staff has conducted public outreach, including an online survey, to inquire whether the majority of the citizens of Fort Collins have similar concerns about such prohibition; and WHEREAS, City Council has carefully considered the information obtained from the public outreach and provided by staff and other sources, and believes that there is strong public support and desire to retain the current prohibition; and WHEREAS, in light of such information, City Council finds it to be in the best interest of the public to maintain the current prohibition of the exposure of the female breast in public and to exclude from this prohibition children under ten years of age and breastfeeding mothers; and WHEREAS, City Council also finds it to be in the public interest to retain the prohibition on intentional exposure of any portion of the genitals or buttocks in public places and to add provisions excluding from this prohibition children under ten years of age, persons undergoing bona fide medical examinations or emergencies and persons in changing areas or other places designated for changing clothes or where nudity is explicitly allowed; and WHEREAS, the City Council has determined that the City Code amendments set forth herein are in the best interest of the City and its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the Council hereby adopts the foregoing recitals as its findings and conclusions. 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 indecency nudity. (a) No person who is ten (10) years of age or older shall knowingly appearintentionally expose any portion in any public place in a nude state or state of undress such that theof his or her genitals or buttocks of either sex or the breast or breasts of a female are exposedwhile that person is located:. Fort Collins 0020 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 20 of 25 - 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 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. (c) 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. Fort Collins 0021 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 21 of 25 - 3 - Introduced, considered favorably on first reading, and ordered published this 20th day of October, A.D. 2015, and to be presented for final passage on the 3rd day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 3rd day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Fort Collins 0022 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 22 of 25 - 1 - OPTION 2 ORDINANCE NO. 134, 2015 OF THE COUNCIL OF THE CITY OF FORT COLLINS MAKING CERTAIN AMENDMENTS TO SECTION 17-142 OF THE CODE OF THE CITY OF FORT COLLINS RELATED TO PUBLIC NUDITY WHEREAS, some citizens have expressed concerns regarding the current prohibition of the exposure of the female breast in public places in the City; and WHEREAS, City staff has conducted public outreach, including an online survey, to inquire whether the majority of the citizens of Fort Collins have similar concerns about such prohibition; and WHEREAS, the outreach suggests that there is a desire in the community to eliminate the prohibition on exposure of the female breast in public; and WHEREAS, the Women’s Commission discussed this issue at its meeting on September 16, 2015, and the consensus of the Commission was to support elimination of the current prohibition on exposure of the female breast in public; and WHEREAS, the Human Relations Committee considered this issue at its meeting on October 8, 2015, and decided to support elimination of the current prohibition on exposure of the female breast in public; and WHEREAS, in light of such information, City Council desires to eliminate the current prohibition of the exposure of the female breast in public; and WHEREAS, City Council further finds it to be in the public interest to retain the current prohibition on appearing in a nude state or state of undress such that the genital or buttocks of either sex is exposed, and add exceptions to such prohibitions of for children under ten years of age, persons undergoing bona fide medical examinations or emergencies, and persons in changing areas or other places designated for changing clothes or where nudity is explicitly allowed; and WHEREAS, the City Council has determined that the City Code amendments set forth herein are in the best interests of the City and its citizens. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby adopts the foregoing recitals as its findings and conclusions. Section 2. That Section 17-142 of the Code of the City of Fort Collins is hereby amended to read as follows: Fort Collins 0023 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 23 of 25 - 2 - Sec. 17-142. Public indecency nudity. No person shall knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks of either sex or the breast or breasts of a female are exposed. (a) No person who is ten years of age or older shall intentionally expose any portion of his or her genitals or buttocks while that person is 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) 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) This prohibition 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. Fort Collins 0024 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 24 of 25 - 3 - Introduced, considered favorably on first reading, and ordered published this 20th day of October, A.D. 2015, and to be presented for final passage on the 3rd day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Passed and adopted on final reading on the 3rd day of November, A.D. 2015. __________________________________ Mayor ATTEST: _______________________________ City Clerk Fort Collins 0025 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 25 of 25 Fort Collins 0010 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 10 of 25 - ! ! - 6 ! " # $ 6 - %(&$ % " " '%#$ & ' !*$ / 6 5 - 6 - %(&$ "'(% 4 6 6 '%#$ '&+ - !*$ !(+ , +#' , +#' 78 6 . 9 78 6 . 9 78 6 . 9 78 6 . 9 Fort Collins 0009 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 9 of 25 - "%$ *&& , ++*" , ++*" '3 "%$ '('$ !&($ !'$ '&$ "!" "%$ '+% !%'" '('$ !%+% '%"( !&($ !"# "( !'$ ++% 2 - '&$ '*' , ++#! , ++#! !##*+!( 4 '!" % /5 "(( *1- Fort Collins 0008 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 8 of 25 !"#$ !%$ !&#$ !'($ ) !"#$ !!*# ) !%$ ++& !&#$ !"&+ !'($ !(% , +#"( , +#"( ! -. '+"$ ""$ (#$ "%$ ATTACHMENT 3 Fort Collins 0007 Case 1:16-cv-01308-RBJ Document 19-1 Filed 08/02/16 USDC Colorado Page 7 of 25