TOPSAIL BEACH — At least one couple that’s been known to don their birthday suits in Topsail Beach will be disappointed in the town’s new nudity ordinance.
Despite feedback from residents on the way it’s written, Topsail Beach commissioners pushed through a new rule Wednesday that makes it illegal to be naked in public places.
READ MORE: Topsail commissioners revisit ‘embarrassing’ public nudity ordinance, will vote next month
ALSO: It’s a bust: Topsail ditches talks on topless ordinance, looks at other town’s regulations
The discussion first came up two years ago and again last year in light of complaints about a couple who sunbathed topless on the island. The ordinance was tabled because town attorney Steve Coggins did not think the courts would uphold certain language banning nudity. Since then, the Fourth Circuit Court of Appeals ruled in federal court a Maryland beach town’s ban on women going topless was constitutional.
“It’s good to have legislative findings if enacting an ordinance like this to defend it in court,” Coggins said. “Case law suggests an ordinance is more defensible if it’s clear the governing body weighed and found various facts, as opposed to simply passing something willy nilly, arbitrary without any basis in fact.”
He went on to read the lengthy findings, which included an “overwhelming weight of comments received opposing people appearing nude.” He also said nudity is not a protected liberty interest in the First Amendment of the U.S. Constitution.
When it comes to females versus males being topless, which was one of the reasons the town previously did not think it would hold up in court, Coggins said “equal protection clause does not demand those different in fact be treated the same in law.” The Maryland case was upheld in courts despite female residents calling it discriminatory.
The board of commissioners, made up solely of men, then had to discuss what age the rule should go into effect for females.
“I would be willing to proceed with setting the age at 10,” commissioner John Gunter offered.
In response, commissioner Joe Bell asked about transgender individuals.
“The transgender issue is certainly elusive,” Coggins responded. “It’s possible to encounter someone who does not appear to have mature female breasts, but in fact does; it’s possible for one to appear to have fully developed female breasts but in fact be biologically male.”
However, he added, the chances are “extremely remote,” and he did not think it should be addressed in the ordinance at this time, though noted he had consulted medical experts.
“If it turns out Topsail is visited by transgender individuals charged under this ordinance, it may be worthwhile revisiting at that time,” Coggins said.
Police Chief Sam Gervase noted stating an age poses a problem for his officers because you can’t charge someone criminally under the age of 18.
“It’s pretty cumbersome,” he told the board. “If we’re going to charge them civilly, as a misdemeanor, it’s problematic for someone under the age of 18. Putting an age limit would make it a lot more difficult for us.”
Topsail leadership confirmed with Port City Daily the rules regarding minors and violations are based on North Carolina’s 2017 “Raise the Age” ruling.
“Due to a recent change in legislation, anyone under the age of 17 that is charged has to go through the Juvenile Petition Process as opposed to traditional adult court,” Gervase wrote to PCD. “The only exception is class A-G felonies.”
Commissioner Morton Blanchard said the town was “searching for a problem that didn’t exist,” by creating the ordinance. He also noted he was “willing to accept it.”
“I’m a firm believer in live and let live, but in a situation like this, a few people have taken it upon themselves to actually advertise,” commissioner Frank Braxton said. “A few spoil the broth and are forcing our hand in essence, but I’m still torn.”
Mayor Steven Smith noted he had received a letter from someone who was grateful the town did not have an ordinance and was “going to let all their friends know.”
“And that’s a problem,” Smith said. “We want our beach to remain a family-oriented, safe beach for kids.”
The reason the board is considering the ordinance now is so officers have the ability to enforce no nudity. As it stands, they cannot legally tell someone to not be naked, despite complaints.
Resident Nancy Thomason said the language sounds “archaic” and doesn’t represent the town. She said media outlets made Topsail a “laughing stock.”
“If none of the commissioners can read it out loud, it’s wrong,” she said.
She was referring to the last board meeting when commissioners wouldn’t volunteer to read the language of the ordinance.
“It’s not the right language,” Thompson added.
In defense, Coggins said: “If you just say ‘naked’ it would not last one day in court.”
“I supplied the wording of the ordinance that survived the Fourth Circuit language,” he continued. “I do know this language has survive a challenge.”
The ordinance change to Article III of Chapter 24 defines nude as the following:
- Showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft with less than a full opaque covering of the same
- Showing of the covered male genitals in a discernibly turgid state
- Showing of the fully developed female breasts (exceptions include breastfeeding)
“The key provision is the definitions,” Coggins said. “Everything rises and falls on those terms.”
When it comes to thong bathing suits, commissioners agreed they were permitted.
“That’s become so socially acceptable now,” Gervase said. “It’s a losing battle.”
The board also agreed the initially proposed citation of $1,000 was “excessive” and reduced it to $250, to which all agreed, including Gervase.
The commissioners were unanimous in adopting the ordinance.
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