TOPSAIL BEACH — Technically, beachgoers that want to bask in the sun “au naturel” can still do so in Topsail — an item discussed among council members earlier this week. The Pender County coastal town is one of the last remaining in southeastern North Carolina without legal standing in place to stop topless sunbathing.
Though, state law still requires private parts remain, as the name indicates, private.
While town officials revealed at a Wednesday evening meeting that limited instances of public nudity have caused concern, one council member wanted to look into an ordinance prohibiting the matter, as a proactive approach.
After in-depth discussion with town attorney Steve Coggins, which involved the risk of litigation, citing freedom of speech, council decided to table the issue.
Topsail Police Chief Sam Gervase told the board it typically receives two to three complaints each year about nudity and reminds concerned citizens there is no ordinance in place at this time.
Council member Tim Zizack requested research on legal parameters of a public nudity ordinance, his main concern being why some coastal communities have one and others don’t. He also raised the point whether it would be better to have a rule in place prior to having an issue needing one.
“I’m trying to weigh everything that I’ve talked about, citizens have contacted me about and also thinking about the community, our community, more than other communities and trying to compare someone else to us,” Zizack said at the meeting.
Some neighboring beach towns prohibit nudity entirely on beaches, such as the Town of Oak Island and Carolina Beach. Others only prohibit the exposure of females’ breasts, such as Surf City and Wrightsville Beach.
The Town of Oak Island implemented its rules in 2004. Town spokesperson Michael Emory confirmed “there is no record of any specific incident or issue that directly led to its implementation.”
He added, to date, it hasn’t caused any major concerns or required significant enforcement. However, when it is enforced, the police department is the one to do so. Penalties could result in civil fines of $250 for the first violation, up to $1,000 for a third offense.
Language in Carolina Beach’s ordinance dates back even further, with records showing a 1954 town ordinance prohibiting “indecent exposure in any public place.” A $500 fine is handed out to violators.
Surf City’s rules were created 30 years ago and town manager Kyle Breuer said it hasn’t raised any issues he is aware of.
“It would be enforced if we received a complaint, but to my knowledge, this is not something that is dealt with on a regular basis,” he said. “If it comes up, we simply ask for compliance and it has not been a problem.”
In towns where there is no ordinance, such as Topsail Beach and North Topsail, Coggins said he would suspect the reason is because no problems have dictated its need.
North Carolina general statute essentially only prohibits “bottomless” nudity, citing it is illegal to expose “private parts” in any public place. Therefore, wearing nothing down below can be enforced based on state regulations.
However, Coggins noted the N.C. Supreme Courts have ruled private parts do not include the breasts of males or females.
“There are very few findings of fact that indicate if there is actual basis for the need of an ordinance,” Coggins explained to the board. “When faced with legal challenges, it requires a governing body to have sufficiently established precedent, justification, for imposing a burden on something that in some cases can be construed as speech. And if it’s speech, it’s protected, by some extent, by The First Amendment.”
There is also a fair amount of “healthy debate,” he said around what is considered public and what are proper age exemptions. For example, Oak Island’s ordinance applies to females over the age of 5, while Surf City doesn’t enforce the issue until age 14. Carolina and Wrightsville beaches’ regulations call out “fully developed females,” which Carolina Beach officials say allows officers discretion based on the age of the individual.
Coggins said he found multiple constitutional issues that have arisen from other towns regulating nudity. As a result, there is some risk associated with possible litigation.
Federal law, 42 USC Section 1983, Civil Action for Deprivation of Rights, means someone could counter an ordinance, or sue based on their rights being taken away for “suppressing expression.”
A 1978 Supreme Court case, Monell v. Dept. of Social Services of City of New York, concluded a municipality is in fact deemed a “person” and subject to liability. It overruled a prior case that said otherwise.
Topsail’s current insurance policy probably wouldn’t protect it from lawsuits related to banning nudity on the beaches, Coggins said. A lot would depend on its scope.
Still, if there was substantial evidence proving nudity caused problems on the beaches, it would be more justifiable to ban the activity and stand by the claim in court, he added.
“Given that, without that factual predicate, you may not necessarily lose the case, but it makes the plaintiff’s case easier against you,” Coggins said.
Enforcing a ban on nudity would also come at an added cost to the town, he added, to adequately equip law enforcement with additional personnel to enforce it. Also, the town would need to ensure clear guidelines are in place for officers to know what can and cannot be imposed.
A petition has been started on Change.org requesting a clothing-optional area on Topsail Beach. The petition, which has 58 signatures, indicates those in favor are requesting a small section of the beach, south of the main public access near the new Topsail inlet, to be available for nude sunbathers.
The petition reads: “A Topsail Beach clothing-optional area would be completely clothing-optional, allowing visitors to undress to their optimal comfort. Sexual acts would not be permitted in the clothing-optional area.”
It also says there would be signs alerting the general crowds of the start of a “non-sexual nudity area.”
Until then, for those looking for the freedom to sport nothing at all without repercussions, there’s a nude beach in Ocean Isle, Whispering Pines Nudist Resort: “Aspiring to be your favorite place naturally.”
This article has been updated to remove reference to a Supreme Court case that is no longer relevant. It was overturned by one referenced above. Port City Daily regrets this error.
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