A lawyer for nude beach advocates said today she will appeal to the California Supreme Court in San Francisco on Thursday to overturn a ruling that ends a state practice of informally allowing nudity on some state beaches.
Elva Kopacz, an attorney for the Naturist Action Committee, said she will file a petition for review of the decision published by a Court of Appeal panel in Santa Ana last week.
Kopacz said, “It’s a long shot,” since the high court hears only a small percentage of the cases appealed to it, but said interpretation of a state law on regulations “is an issue that needs to be addressed.”
In the July 17 decision, the appeals court overturned a 30-year-old policy in which the state parks system tolerated nude sunbathing on some remote state beaches unless a citizen complained.
Bay Area state beaches that informally allowed nude sunbathing included Red Rock Beach south of Stinson Beach and Gray Whale Cove State Beach in Montara, according to Naturist Action Committee board member Allen Baylis.
The now-invalidated policy was set by former California Department of Parks and Recreation Director Russell Cahill in an internal department memo in 1979.
The appeals court said the policy was an “underground regulation” that cannot be enforced because the department never went through procedural requirements for public notice and comment.
Department spokesman Roy Stearns said state beaches will now be governed by a California law that bans nudity on all state property.
The law allows an exception if the department specifically authorizes nudity in a particular area, but Stearns said, “We’ve never done that and don’t intend to.”
The spokesman said, “These are public beaches for all people and we think there should be a common code of appropriateness.”
Stearns said state beach officers will now begin enforcing the nudity ban but have “a lot of discretion” as to whether to give a warning, issue a misdemeanor citation or do nothing if they spot nudity.
“They may take action if warranted, or they may do nothing,” said Stearns, who said the park staff’s discretion is similar to a traffic officer’s discretion on whether to issue a ticket.
Stearns said the difference between the old and new rules is that officers previously had to wait for a citizen complaint, whereas they now can take action against nudity without receiving a complaint.
The appeals court ruling was made in a lawsuit in which the Naturist Action Committee sued the state agency in a bid to block its plan to end nude sunbathing on San Onofre State Beach in San Diego County in the wake of complaints of lewd activities.
Ironically, the naturist group argued that the agency hadn’t complied with the state Administration Procedures Act requirements for public notice and comment before making the change.
But the appeals court concluded that Cahill failed to follow those same procedures when he set the informal policy in 1979, so that the original policy itself was invalid.
The court said the effect of the change in the rules for San Onofre State Beach was “merely to discontinue an invalid policy.”
Kopacz said the naturist group will contend in the appeal that Cahill, in publicizing his proposal for the 1979 policy, met the administrative law’s standard of “substantial compliance” with the requirements.
The Naturist Action Committee is the political arm of the Wisconsin-based Naturist Society, which promotes the goal of achieving body acceptance through nude recreation.