Chapter 9.04
LEWDNESS
Sections:
9.04.010 Definitions.
9.04.020 Lewd conduct prohibited.
9.04.030 Action to abate lewd conduct.
9.04.040 Remedies and penalties.
9.04.010 Definitions.
When used in this chapter, the following words and phrases shall have the meanings set forth in this section:
“Nudity” is a person’s intentional failure to cover with a fully opaque covering that person’s own genitals, pubic areas, rectal area, or female breast below a point immediately above the top of the areola.
“Public nudity” means nudity in or in view of a public place.
Public Place. For purposes of this chapter, a public place is any place which is not:
1. A private residence;
2. A hotel room rented for use as a bedroom;
3. A shower locker room or dressing room associated with a gymnasium, swimming pool or similar facility, if the said shower room, etc. is restricted to members of the same sex;
4. A medical facility in which nudity or partial nudity is required during the course of any medical examination or treatment.
Fully Opaque. A covering is fully opaque if it is sufficiently opaque to render invisible the skin surface on the parts of the body required to be covered.
Lewd Conduct. Lewd conduct is synonymous with obscene conduct, and means any matter:
1. Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest;
2. Which involves patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; or masturbation, excretory functions, or lewd exhibition of public nudity; and
3. Includes, but is not limited to, striptease, and nude dancing defined as:
a. Dancing performed to recorded or live music without other significant performance context within which to communicate an artistic message.
Nothing herein contained is intended to include or proscribe any matter which, when considered as a whole, and in the context in which it is used, possesses serious literary, artistic, political or scientific value. (Ord. 08-29 § 11, 2008; prior code § 13.20.010)
9.04.020 Lewd conduct prohibited.
A. Lewd conduct in any public place within the city is prohibited.
B. Sponsoring or permitting lewd conduct for commercial purposes in any public place by any person within the city is prohibited. (Prior code § 13.20.020)
9.04.030 Action to abate lewd conduct.
A. The city attorney, city prosecutor or any person residing within the city may maintain an action to enjoin lewd conduct sponsored or permitted for commercial purposes as prohibited in Section 9.04.020(B).
B. The action provided for in subsection A of this section shall be brought in the Superior Court, Third Judicial District, Palmer, Alaska. Such action shall be commenced by filing of a verified complaint alleging the facts constituting a violation of Section 9.04.020(B). After the filing of the complaint, application for a temporary injunction may be made to the court, or to the judge thereof, who shall grant a hearing within ten (10) days after the filing. If such action is instituted by a resident of the city, the complainant shall post security or execute bond in accordance with Alaska Civil Rule 65(c) in an amount to be determined by the court.
C. Where such an application for a temporary injunction is made, the court or judge thereof may, on application of the complainant showing good cause, issue an ex parte restraining order, restraining the defendant and all other persons from violations of this chapter. The order may be served with any person in charge of the place where the violation occurred or residing therein, or by posting a copy thereof in a conspicuous place at or upon one or more of the principal doors or entrances to such place, or by both such delivery and posting. Any violation of such restraining order is a contempt of court, and where such order is posted, mutilation or removal thereof while the same remains in force is a contempt of court if such posted order contains therein a notice to that effect.
D. A copy of the complaint, together with a notice of the time and place of the hearing of the application for a temporary injunction, shall be served upon the defendant at least three days before such hearing. The place may also be served by posting such papers in the same manner as is provided for above in the case of a restraining order. If the hearing is then continued at the instance of any defendant, the temporary writ as prayed shall be granted as a matter of course. Before or after the commencement of the hearing of an application for a temporary injunction, the court, on application of either of the parties or on its own motion, may order the trial of the action on the merits to be advanced and consolidated with the hearing on the application for the temporary injunction. Any evidence received upon an application for a temporary injunction which would be admissible in the trial on the merits becomes a part of the record of the trial and need not be repeated as to such parties at the trial on the merits.
E. If, upon hearing, the allegations of the complaint are sustained to the satisfaction of the court or judge, the court or judge shall issue a temporary injunction without posting of additional bond, restraining the defendant and any person acting for or on the behalf of the defendant from continuing to sponsor or permit lewd conduct for commercial purposes.
F. If the action is brought by a person who is a resident of the city and the court finds that there was no reasonable grounds or probable cause for bringing the action, and the case is dismissed before trial for that reason or for want of a prosecution, the costs, including actual attorney’s fees, may be taxed to such person. If the existence of a violation of Section 9.04.020 is established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendant and any other person from any further violations at the place complained of, and the defendant from sponsoring or permitting lewd conduct for commercial purposes elsewhere in the city. The entire expenses of such abatement, including attorney’s fees, shall be recoverable by the plaintiff as a part of his or her costs of the lawsuit.
If the complaint is filed by a person who is a resident of the city, it shall not be dismissed at
the instance of the complainant except upon a sworn statement by the complainant and his or her attorney, setting forth the reason why the action should be dismissed, and the dismissal approved by the city attorney in writing or in open court. If the judge is of the opinion that the action should not be dismissed, he or she may direct the city attorney to prosecute the action to judgment at the expense of the city. Attorney fees in situations other than those specified above shall be determined according to Rule 82, Alaska Civil Rules.
G. Any person found to be in wilful violation of any restraining order, temporary or permanent injunction issued under this chapter is in contempt of court, and upon determination of such violation the judge or court shall, in addition to any other remedy or punishment permissible by law, order that the commercial establishment in which the violation occurred be closed and enjoined from engaging in business for a period of not less than ten (10) business days. (Prior code § 13.20.030)
9.04.040 Remedies and penalties.
Remedies and penalties for violations of this chapter are as provided in Chapter 1.20. (Ord. 01-47 § 9, 2001)