MIAMI, Oct. 26 -- Several Florida communities are pondering whether nudity in bars or on beaches should be considered a right of free expression or a nuisance from which the public must be protected. A recent appellate court decision suggests laws banning public nudity do not necessarily violate the Constitution, although previous U.S. Supreme Court rulings have upheld that mere nudity without lewd behavior is not illegal. The 11th U.S. Circuit Court of Appeals in Atlanta Oct. 5 upheld the St. Johns County, Fla., anti-nudity ordinance, a measure drafted largely to regulate behavior at a St. Augustine nude dancing club. Leon County (Tallahassee) and the city of Gainesville have similar laws modeled on the St. Johns ordinance. Brevard County (Titusville) also adopted a public nudity ordinance, but it is intended to banish nudists from the Canaveral National Seashore rather than to specifically regulate nude performers. The St. Johns County legislation was drafted within days of the opening of Cafe Erotica in St. Augustine in February 1992, and enacted several months later. Lawmakers said the measure was drawn up to protect the public. But attorney Gary Edinger, who represents Cafe 207, Inc., the corporation that operates Cafe Erotica and similar establishments in other Florida communities, contends the law is aimed at business and designed to regulate erotic display inside a business rather than public nudity. 'In St. Johns County, the ordinance is directed toward a specific establishment. It's not only a public nudity issue, it seeks to regulate nude dancing,' Edinger said.
'It was literally prepared right after Cafe Erotica opened, so there's no doubt what the actual target is.' In contrast, Edinger said the Brevard County law was a reaction to what was perceived as a lingering community problem -- the influx of nude sunbathers at Playalinda Beach on the national seashore. But there are other constitutional questions about the Brevard County law. At issue is whether a county law can supercede federal policy or federal law. The U.S. Parks Department, which oversees the Canaveral National Seashore, for years has permitted nudists to use a section of Playalinda Beach, posting signs warning others about what they may encounter. Brevard County Sheriff Jake Miller had hoped to wait until a court challenge was resolved before enforcing the new ordinance, but Central Florida Naturist president Frank Cervasio was arrested Sept. 9 after refusing to cover up when deputies told him to put on a bathing suit. Cervasio said he believes he needs no swimsuit because he is 'covered by the Constitution,' contending justices already have upheld certain instances of nudity as a protected form of free expression. The case has just begun on the state level, but Cervasio has vowed to take the issue to the Supreme Court if necessary. On May 22, the Gainesville City Commission passed an ordinance stipulating 25 percent of a woman's breasts must be covered by fabric and bikini bottoms must be at least three-quarters of an inch wide across the buttocks. While admitting a planned nude cafe in the downtown central district prompted discussion on the measure, Commissioner Paula DeLaney said city officials tried to take a more expansive view of the problem. 'We're still working on the issue,' she said. 'The commission looked to dress dancers and nude modeling establishments, but it's also important for us to consider land use and zoning implications since that's what city government is all about.' According to Delaney, the downtown district already had very specific zoning guidelines which commissioners enforced, while allowing limited numbers of adult clubs to operate elsewhere. The commission likely will develop a comprehensive ordinance to regulate what goes on inside adult establishments by year's end, Delaney added. 'We felt it was important to set a community standard at the beginning because it's difficult to go back after the fact,' she said. Although commissioners want to restrict what occurs inside modeling parlors -- some of which are nothing more than masturbation parlors, according to Delaney -- they do not want to regulate businesses such as bookstores. 'That would be going too far,' she said. Nor do they want to legislate what a property owner can do behind fences in a backyard. 'None of our business,' DeLaney said. To date there has been no legal challenge to the Gainesville ordinance, unlike the ones adopted in St. Johns and Brevard counties. The Brevard County ordinance potentially faces several legal challenges and, although upheld by the appeals court, the St. Johns law may face yet another round of litigation. 'We're considering an appeal to the U.S. Supreme Court,' Edinger said. 'We'll consider the costs and probable outcome before making a final decision. We have until at least Nov. 5 to file an appeal.' Until then, Edinger said dancers at Cafe Erotica would continue to perform in bikinis. 'What's interesting is there is no prohibition under the ordinance against video displays of dancers in the nude,' he added. 'So operators can show a dancer completely naked on the screen, but the same woman must have on a bathing suit if she's standing there in person.'