Edmonds City Council moves closer to adopting new public indecency law

Edmonds police say that efforts to address problems at the now-closed Java Juggs espresso stand on Highway 99 prompted the new
Edmonds police say efforts to crack down on illegal activities at the now-closed Java Juggs espresso stand were hampered by unclear language in the city code.

Following a report by police regarding citizen complaints about bikini barista coffee stands, the Edmonds City Council voted 4-2 Tuesday to send to next week’s consent agenda an ordinance that would add “public indecency” sections to the Edmonds City Code.

Voting against the measure were Councilmembers Adrienne Fraley-Monillas and Dave Teitzel. Councilmember Mike Nelson was absent.

Assistant Police Chief Jim Lawless explained that the complaints come in many forms, including “someone calling 9-1-1 because they drove by and saw something that they found to be offensive.”

The proposed ordinance is meant to clarify how the city’s laws apply in those situations. Right now city code includes an adult entertainment ordinance on the books from 1996 that applied to establishments where such entertainment was “contained, controlled and out of public view,” Lawless noted, and didn’t anticipate those types of activities taking place in more public coffee stands. The city’s other ordinance, which addresses “offenses against public morals,” also needed some language updates, he said.

The Edmonds proposal includes language borrowed from similar ordinances in Lynnwood and Everett, which have “withstood judicial scrutiny as it relates to First Amendment-type issues and what can and cannot be regulated in the community by the governing bodies,” Lawless said.

Language in the proposed ordinance goes into detail about “both behaviors and descriptors about what is or is not certain states of undress, what’s considered nudity, what’s considered to be offensive or improper behavior,” Lawless explained. “It is a problem that we are trying to respond to community concerns about and find a better way to address.”

While Edmonds currently has only one bikini barista stand — Beehive Espresso on Highway 99 and 238th Street Southwest — Lawless stressed that police “are not targeting any one individual or any one business. We are targeting behavior that citizens aren’t fond of, being out in public view or even having the potential for public view.”

Regulating that particular stand “is not the only objective,” Lawless added. “It’s something we’ve dealt with in the past, something we’re currently dealing with and something that we can anticipate in the future.” In particular, Lawless said that police efforts several years ago to crack down on illegal activities at the now-closed Java Juggs espresso stand on Highway 99 and 212th were hampered by unclear language in the city code.

Lawless said the law does include language to accommodate “art-type situations, be it live art, be it a play where there is brief nudity. We are not trying to be the overall moral police and dictate what is acceptable personally. It’s trying to really get handle on what’s out in the open that may be offensive.”

Answering a question from Councilmember Dave Teitzel regarding whether there were enough instances of indecent exposure to warrant the new code language, even if Edmonds didn’t have any bikini barista stands, Lawless said there were.

“We still run into regular occurrences of people not really taking into consideration their surroundings and location when engaging in certain behaviors,” Lawless said, “and that’s why also the definition when it references locations, whether it’s an automobile moving or stationary, in the park, in public view, things of that nature.”

Councilmember Adrienne Fraley-Monillas questioned the definition of nudity in the proposed code that “talks about cleavage of the female or male buttocks. Have you been to the high school lately? Young folks are walking around with potentially a little bit of their buttocks showing.”

Lawless noted that “reasonableness and intent of the person engaged in that activity is something that’s always considered when we’re even considering any enforcement action. A kid wanting to make a fashion statement walking down the hall at the high school, it’s up to the high school staff to deal with,” he said. “We’re not going to be patrolling the halls looking for kids where their jeans are so low they can hardly walk.”

Added Lawless: “There are certain activities that this is meant to address and I promise you, everything that is in this ordinance is there for a reason.”

However, Fraley-Monillas said she still questions “some of the potential clothing attire determination. I hear you when say you’re not going out there looking for it the high school, but walking down the sidewalks, or leaving the high school or all the places we tend to see folks. Honestly, if you go to the Taste of Edmonds you may see that, or the Waterfront Festival.”

While the measure is scheduled to appear on next week’s Aug. 2 consent agenda, councilmembers will have an opportunity to comment further or make amendments if they choose to remove it from the consent calendar for further discussion.

The council also:

– Heard a report from the Snohomish Health District, which is facing a revenue shortfall. The health district, which receives no funding from Snohomish County, is now making the rounds to Snohomish County cities, asking if they can help by paying a $2-per-resident fee to help close the gap for 2017. For Edmonds, this amount would come to approximately $80,500. The council agreed to continue discussing the issue at a future meeting

– Approved a concession agreement between the City of Edmonds and Dean
Parmenter to operate a hot dog cart by the Edmonds ferry loading lanes.

– Conducted a closed record review of the City of Edmonds Hearing Examiner’s recommendation to approve a conditional use permit and variance for the downtown public restroom project, and voted unanimously to place that approval on next week’s consent agenda.

– Agreed to start the process for refinancing city bonds, for a savings of approximately $350,000

– Approved for placement on next week’s consent agenda contracts to renew interlocal agreements with the Snohomish Regional Drug & Gang Task Force for 2016-17 and the Edmonds School District for police coverage at athletic events.

– Directed the city attorney to prepare an ordinance amending the city sign code, which will come back to the council for approval at next week’s meeting.

– Approved a “resolution of intent” to designate the Westgate Mixed Use Zone District as a residential targeted zone, to start the process for implementing a Multi-Family Tax Exemption Program. A council also set a public hearing date of Tuesday, Aug. 16 at 7 p.m.  We’ll provide more details on this program in a later story.

 

  1. The following is an open letter to the Edmonds City Council on this topic, which I have emailed them directly.
    I am concerned and disappointed over the proposed new ordinances regarding public morals and indecency, which appear to be headed towards consent approval next week. My disappointment is based largely on what looks like a nearly Victorian morality being codified into Edmonds law, creating a new list of what are largely victimless crimes. My concerns arise from the highly subjective nature of the code, its seemingly specific but in fact very poorly defined wording, and the expansion of laws telling women what they can or cannot wear, seemingly for the sole purpose of keeping men from “misbehaving.”

    I was not at the last council meeting, where this was presented. I am basing my comments here on the text of the proposed ordinance as obtained from the city website, and the report published in MyEdmondsNews (https://myedmondsnews.com/2016/07/edmonds-city-council-moves-closer-to-adopting-new-public-indecency-law/). If I cite the latter and it is inaccurate, I apologize, but I do not believe any inaccuracy in that report undermines the fundamental points I wish to make.

    I would summarize this situation as one where an unspecified number of complaints by unidentified citizens has prompted the police to write a law that appears to allow enforcement of a vague set of moral guidelines for what are arguably victimless crimes. That one’s body or clothing makes another person uncomfortable should not be a crime per se. If it is, then this ordinance is far from complete, as it fails to address hygiene, language displayed on clothing, images on clothing (such as the Confederate flag, images of scantily clothed people, or religious symbols). If this is Edmonds’ standard for thoughtful and measured law-making, then we hold ourselves up as an example of inability to think and act critically.

    Assistant Chief Jim Lawless is quoted as stating that the ordinance is needed to clarify ambiguities in existing law. The briefing narrative for the Council explicitly and repeatedly cites (first and third paragraphs) these as they apply to bikini baristas, based on concerns over their state of dress, their visibility, and alleged misconduct. No offenses or concerns about any other situations or individuals are part of this official record. However, in the MyEdmondsNews article, he (Lawless) is mentioned stating several times that these changes are needed above and beyond any barista concerns. Did he provide specific examples? Or is this solely to restrict these coffee stands? In either case, are the claimed offenses really worthy of police attention? If so, why, specifically does existing law not cover them? “Alleged sexual misconduct” either has evidence to support it, or not, and it either is or is not misconduct already.

    Assistant Chief Lawless also notes that the law would not be applied in various situations, based on the perceived intent of the offending individual. Laws that officers can apply at will, or that require them to determine intent, are the types of laws frequently cited when citizens file charges of police harassment, due to disparate enforcement. I cannot imagine the Council or the Edmonds Police want to implement new ordinances that will open them to charges of sex, race, or any other form of discrimination. This ordinance, as drafted, seems to do exactly that.

    The specifics of the proposed ordinance are described as consistent with ordinances passed in other jurisdictions. That does not make it a good ordinance, nor does it make it appropriate for Edmonds. There are many elements that are certainly appropriate – the description of public indecency is largely appropriate for Edmonds, and most of the acts described are unacceptable to perhaps 95% of the populace. However, the definitions of nudity are where the ordinance becomes seriously open to challenge or criticism. (I would also recommend renaming this section “acceptable attire” or something, as “nudity” means something very different in English.) Specifically:
    1.a includes display or showing of the pubic area. A web search for definitions of the pubic area yields a variety of vague answers. But the medical definition provided at https://medical-dictionary.thefreedictionary.com/pubic+region describes it as the region from the genitals upward to the umbilical region. This would make display of any flesh below the navel count as “nudity,” and would include halter tops with shorts; tube tops; any men’s swimsuit; a child in a diaper and no shirt; a man mowing the lawn shirtless, unless he’s wearing “grandpa pants”; etc.
    1.b refers to “any portion of the anal cleft or cleavage” and explicitly declares that thongs, g-strings, and t-backs are insufficient coverage. A woman cannot wear low-rise jeans with a thong, if leaning over, turning, reaching, or anything else is going to expose her anal cleft. Men must wear pants that rise above the cleft, because “plumbers’ crack” is now a misdemeanor, if it shows in public.
    1.c goes on at some length to identify what portions of the female breast can be visible. The full text here is
    “The portion of the human female breast directly or laterally below a point immediately above the top of the areola with less than a fully opaque covering. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other clothing, provided the areola is not exposed. The act of breastfeeding or expressing breast milk shall not be considered “nudity” or “public indecency”;”
    I encourage the reader to draw a simple picture to understand this. As written, it means that, first, someone has to determine the size of a particular woman’s areolas. Without that, one cannot know whether exposed breast is “laterally below” the top of that. Assuming one can figure that out without first forcing the woman to show her areolas, it then makes it illegal to show breast tissue downward and sideways from there. That would include many swimsuit tops, which use triangular fabric to cover and hold the breast. It means a halter top that allows any side view of breast is not acceptable. It raises the very significant question of whether any women were involved in the writing of this ordinance.
    1.d addresses males in a “discernibly turgid state.” Turgor refers to engorgement or swelling, which means, just as with the question of where a woman’s areola is, someone must determine whether the apparently offending male is engorged or not. This is not something law enforcement should be handling. Without the “turgid” qualification, the proposal is essentially that men are not allowed to wear clothing that allows their genitals to be discerned. Speedo swimsuits and lycra riding shorts on men would be a misdemeanor.

    I strongly recommend that the City Council vote to not accept this as written, certainly not section 5.38.150.C.1, “nudity”. The language leaves many innocent and socially accepted clothing situations subject to the charge of nudity. The balance of these fall largely on women and their ability to dress as they choose. The most male-specific situation, 1.d., is fundamentally unenforceable without gross invasion of privacy and humiliation of citizens. I ask that the Council postpone approval of the proposed ordinance, and assign a small group, including some women, to rewrite it. Identify the exact grounds on which the citizen complaints are based, determine whether there is actually a victim or offense, and create a new ordinance that allows citizens to choose their own clothes, doesn’t allow or require police to subjectively choose who to approach, but still prevents actual criminal activity.

  2. This is a shining example of something the Diversity Commission should have some input on. It seems that some groups are more likely to feel the enforcement of these proposed codes than others. It would be good to let the Diversity Commission give it a good “think” and make recommendations.

  3. Very good comments by Mr Potter, in which I concur. Do we really need these new laws? Why? Indecency varies from one person to another: what I might perceive as offensive you might consider perfectly acceptable, and I always have the right not to look – but no one is guaranteed never to be offended. I would think that “acts designed to inflame arousal” might be enough to prevent – but let’s not get down to measuring each others’ “clearances, ” or ask our police to run around with measuring tapes or stopping people in bike shorts.

    “Why can’t people just leave other people the hell alone?” – Groucho Marx

  4. Clothing, or lack thereof, has always been a generational issue. Remember the days when two piece swimsuits caused an uproar of indecency murmers in the early sixties? I certainly wanted one, didn’t you? And if you were a guy, bet those didn’t bother you. (Ban speedos? I don’t like them but if you go to any European coastal area and those are the norm! Don’t look if you are bothered by what you see.) Let’s not give Edmonds the moniker “fuddie-duddie town” filled with cranky retired folk who have closed minds. After living here for eleven years, I am actually happy to see an increase of younger people.
    Sometimes we just need to close our eyes at the baggy jeans, cleaveage, ripped jeans, etc.
    Please don’t make us into a “police state” governed by Orwellians. Granted, bikini clad baristas may be silly to many of us, but topless would be unlawful.
    Draw a line but stop measuring the cleft. As Sarah Silverman said at the DNC, “You’re being ridiculous.”

  5. This is what unfolds when you have a church planter and a bonafide denominational minister on a government City Council making laws based on certain RELiGIOUS moralities. We have a separation of church and state in our U.S. Constitution.

    The latest Pew Research report shows the state of Washington as the least religious state in our country and for this Council to start dictating morality is not a whole lot unlike some of the extreme religious forces we are as a democratic nation fighting halfway across the world in a very dark place…….The United States is supposed to be a DEMOCRATIC nation not a repressive religious state…..WHO out there doesnt know why we broke away from England?

  6. We have members of institutions in THIS community who are driving this and in our governmet.. These institutions and some members of these institutions are the very ones driving this ……..what an irony

    those that turned a blind eye for 50! years knowing that many children had been molested in two very large organisations and no doubt some that continue ……and some profess to making a law regarding indecency? The lists of the acts on thousands and thousands of children are out there and the names of the perpetrators…….Perhaps time would better spent addressing real crimes such as this and making sure it doesnt continue in those organizations……and those that kept the secrets are held accountable!.. It is simply shameful…….talk about hypocrites regarding real crimes and crimes against children at that

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