Monday, July 20, 2009
Nude Beachgoers Lose Challenge to State’s New Policy
By KENNETH OFGANG, Staff Writer
A former policy that effectively allowed nude sunbathing at a state beach as long as other beachgoers did not complain was never adopted as a regulation, and thus did not have to be formally repealed in order for officials to crack down on the practice, the Fourth District Court of Appeal has ruled.
Div. Three, in a June 25 opinion certified Friday for publication, overturned a writ of mandate that had directed the California State Department of Parks and Recreation to reinstate its “Cahill Policy” pending formal adoption of the department’s plan to begin strict enforcement of its anti-nudity policy in all units of the state park system.
Russell W. Cahill was the director of the department when, in 1979, he sent out an internal memorandum setting forth guidelines for enforcement of the anti-nudity regulation, California Code of Regulations Sec. 4322. Cahill said that proponents had, at public meetings, set forth a strong argument that “a few miles of beach” should be set aside as clothing-optional, but “the public is extremely polarized on this issue.”
The solution, Cahill said, was that “enforcement of nude sunbathing regulations within the State Park System shall be made only upon the complaint of a private citizen” and that no one should be cited or arrested for violating Sec. 4322 unless efforts to obtain voluntary compliance were unavailing.
The department, however, announced last year that it was repealing the Cahill policy with respect to San Onofre State Beach, which includes a small area, Trail 6, where nude sunbathing has gone on for years. The department said that nearby population growth had increased the number of beachgoers, and there had been complaints regarding nudity, lewd conduct, and sexual harassment of department employees, and that as a result, it would begin strict enforcement of Sec. 4322 after Labor Day.
Before then, however, the Naturist Action Committee and others filed their mandate petition, claiming the department was prohibited by the Administrative Procedures Act from repealing the Cahill policy without giving the public formal notice and an opportunity to comment.
Orange Superior Court Judge Sheila Fell agreed and issued the writ.
Justice William Rylaarsdam, writing for the Court of Appeal, said the trial judge was correct that the Cahill policy meets the APA definition of a regulation. But the writ should not have been issued, he said, because the policy was never lawfully adopted.
The department, the justice explained, did not send notice of the policy to the public, provide an opportunity for public comment, or file underlying materials with the Office of Administrative Law, all of which the APA requires.
The justice wrote: “If an agency adopts a regulation without complying with the APA requirements it is deemed an ‘underground regulation’...and is invalid....Because the Cahill Policy is an underground regulation it cannot be enforced. Thus, the latest directive of the department rescinding the policy does not have to go through the APA rule-making process. Its effect is merely to discontinue an invalid policy.”
The case is Naturist Action Committee v. California State Department of Parks and Recreation, G040929.
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