Eckl v. Davis 51 Cal. App. 3d 831 Case involving the use of Clothing removal to entrap

The plaintiffs have appealed from an order denying a preliminary
injunction in an action brought to obtain a declaratory judgment that
ordinance No. 146,360 of the Cityof Los Angeles, relating to nudity on
public beaches and in other public areas, is unconstitutional and to
enjoin the chief of police and other persons from enforcing or
attempting to enforce the ordinance. In the complaint it is alleged
that the individual plaintiffs are residents and taxpayers of the city
and that they"desire to use the public beaches within the jurisdiction
of the City of Los Angeles for sunbathing and swimming in the nude."
It is furtheralleged that they "bring this actionon their own behalf
and on behalf of all other persons similarly situated."
Co. v. Katz, 68 Cal. 2d 512 , 527-528 [67 Cal.Rptr. 761, 439 P.2d
889]; City of Santa Monica v.Superior Court, 231 Cal. App. 2d 223 ,
226 [41 Cal.Rptr. 824])
Accordingly, we consider the substantive question of whether the
ordinance is constitutional on its face. (Cf. Crownover v. Musick, 9
Cal. 3d 405 , 412-413 [107 Cal.Rptr. 681, 509 P.2d 497]; 7978
Corporation v. Pitchess, 41 Cal. App. 3d 42 , 46 [115 Cal.Rptr. 746].)
The conduct thereby proscribed is that no person shall: "Appear,
bathe, sunbathe, walk or be in any public park, playground, beach or
the waters adjacent thereto, or any place under the jurisdiction of
the Board of Recreation and Parks Commissioners The conduct thereby
proscribed is that no person shall: "Appear, bathe, sunbathe, walk or
be in any public park, playground, beach or the waters adjacent
thereto, or any place under the jurisdiction of the Board of
Recreation and Parks Commissioners With respect to the doctrine of
preemption the court stated (70 Cal. 2d at pp. 859-860): "A local
ordinance is invalid if it attempts to impose additional requirements
in a field that is preempted by the general law. In re Hubbard, supra,
62 Cal. 2d 119 , 128 [41 Cal.Rptr. 393, 396 P.2d 809], established
three tests to determine whether a subject has been preempted by the
Legislature.'(1) the subject matter has been sofully and completely
covered by general law as to clearly indicate that it has become
exclusively a matter of state concern; (2) the subject matter has been
partially covered by general law couched in such terms as to indicate
clearly that a paramount state concern willnot tolerate further or
additional local action; or (3) the subject matter has been partially
covered by general law, and the subject is of such a nature that the
adverse effect of a local ordinance on the transient citizens of the
state outweighs the possible benefit to the municipality.'" "The issue
is whether the act of sunbathing inthe nude on an isolated beach,
without intent to engage in sexual activity, is punishable under a
statute which makes it a crime to 'willfully and lewdly' expose the
private parts of the body. We conclude that the conduct in question is
not prohibited by this statute, and hence that the writ should issue.
[¶] The facts are undisputed. On the morning of August 7, 1970,
petitioner and a male friend went to a beach for thepurpose of
sunbathing. Although the beach was open to the public, it was not in a
residential area and was apparently used by relatively few people.
Petitioner removed all his clothes, lay down on his back on a towel,
and fell asleep. [¶] Some hours later the police appeared on the scene
and arrested petitioner on a charge of indecent exposure. By that time
several other persons were presenton the beach. The necessary proof of
sexual motivation was not and could not have been made in the case at
bar. It is settled that mere nudity does not constitute a form of
sexual 'activity.' a person, as here, who simply sunbathes in the nude
on an isolated beach does not'lewdly' expose his private parts within
the meaning of section 314." Legislature has thereby impliedly
determined that public nudity not so motivated, including sunbathing
in the nude on public beaches, is lawful and, therefore, not subject
to local regulation. (See In re Hubbard, 62 Cal. 2d 119 , 126-127 [41
Cal.Rptr. 393, 396 P.2d 809].) In summary, Penal Code section 314 does
not proscribe conduct other than that which is sexually motivated, the
absence of statutory provisions governing public nudity not so
motivated doesnot reflect a legislative intent to prohibit local
legislation with respect thereto when otherwise appropriate, the
ordinance of the city constitutes a reasonable regulation for the
general welfare, and it imposes no undue burden on transients. The
ordinance is not invalid on the ground of state preemption.
The determination just stated is not undermined by the reasoning ofour
Supreme Court in Parr v. Municipal Court, 3 Cal. 3d 861 [92Cal.Rptr.
153, 479 P.2d 353]. The ordinance there involved was not invalidated
on the ground of preemption but, rather, on the ground that it was
void on its face because it was unconstitutional class legislation [51
Cal. App. 3d 844]
Government Printing Office [Incident: 121109-000056] Link removal Acts
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