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HB Nudists Beware
Some violators face sex offender status, attorney warns

By John Earl
OC Voice Editor

Huntington Beach Chief of Police Kenneth Small’s urgent call to stop public nudity in the city, he told the city council last July, came as a result of numerous complaints about a now former downtown HB resident and practicing nudist. The man was alleged to have paraded himself, sometimes in a provocative manner, in front of his windows and in his yard in full view of passers-by, including children.

Small claimed at that time the District Attorney would not prosecute the man, despite the complaints, because non-sexual nudity was not outlawed in Huntington Beach. The D.A.’s office suggested that Small introduce an ordinance to the city council to make nudity prosecutable, and that’s just what he did.

As Small later acknowledged, the assertion that the D.A. wouldn’t prosecute was mistaken. In fact, the D.A. is prosecuting the man for several counts of lewd conduct, according to press reports. But Small’s proposed ordinance—designed to ban any nudity that can be viewed from public places—went before the city council anyway.

At meetings in July and August, the entire council carefully examined the issue from all perspectives, from the near hysterical to the well reasoned—accompanied by plenty of ribald or “childish” (according to one nudity advocate present) body humor.

Before passing the final version Aug. 20, councilmembers reassured the world that breast feeding mothers, nipple and genital excitants and thinly veiled “natal clefts” (a.ka. thong covered butt cracks)—all banned in the Chief’s first draft revision—would not be outlawed.

Council also elicited Chief Small’s promise that his officers would restrain themselves in applying the law to unknowing beach tourists sunning themselves to perfection in the buff, or the occasional resident who suddenly, but unthinkingly, leaps out from behind the shower curtain—dangling participles and all—in a desperate attempt to answer an urgent phone call, while spectators walking by outside unavoidably view all the details of the horrific sight through picture windows meant to provide a view of the world, not for it.

Such incidental nudists were told not worry, because the illegal bodily exposures must be done “knowingly and intentionally” and, by Councilmember Jill Hardy’s analysis, the police must witness the naked truth personally in order to issue a citation.

Some councilmembers inquired if a mere nudist would be required to register as a sex offender if convicted under the new city ordinance. No, they wouldn’t, not under California law, City Attorney Jennifer McGrath reassured.

Those reassurances may have comforted the city council, but not former HB planning commissioner Ron Davis, who sent off a letter to the council in August warning that, in the case of a citizen’s arrest, the HBPD would be obligated, under Penal Code § 142 to take the arrested person into custody.

Davis also questioned Chief Small’s interpretation of “knowingly and intentionally,” stating that “Nothing could be further from the truth” than to believe that it means that the person is “really trying” to expose their forbidden parts to the public.

On the issue of promised police restraint, Davis reminded the council how HBPD had enforced bicycle licensing and anti-drinking ordinances in the late 90s. “I dare say that those who voted for the ordinance never envisioned truckload after truckload of bikes seized for residents and guests alike during several fourth of Julys,” Davis warned, adding that neither did a previous city council expect police to enforce the city’s drinking laws on that same holiday in order to prohibit people drinking alcohol on their own property in public view. “And, the people so observed, weren’t warned, they were arrested,” he added.

Even more serious, R. Allan Balis, an attorney who specializes in laws relating to nudity, warned the council at the final reading of the ordinance that several other states would require sex offender registration for anyone convicted under the HB ordinance who moves to one of those states for an extended period of time.

Since some councilmembers with concern about that issue had been previously reassured by the city attorney that California law would not require sex offender registration for mere nudity, Balis thought the city council might want to do more research before making a final vote.

Councilmember Keith Bohr asked McGrath if she was still comfortable with the city’s proposed anti-nudity ordinance given Balis’ comments.

“I have not done any research as to the impact in other jurisdictions for a conviction on the HB Municipal Code,” McGrath answered.

Astonishingly, not another peep was raised about the issues brought up by either Davis or Balis by any member of the council and the ordinance passed 7-0.

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