What are the laws about public nudity in Florida? Can I get naked in public or outside in Florida?

 

You do one video on International Skinny Dipping Day and the laws in Alabama, and the questions come pouring in from Florida. Can you get naked in public or outside in Florida? Well, it depends on where you bare it all and what you are wearing and the laws across Florida vary wildly from city to city and county to county. You’d think the Sunshine State would be more lenient on this but, alas, many places have passed specific ordinances that can make wearing even skimpy bathing suits a criminal enterprise!

 

Florida has two state statutes (laws) that apply to being naked where the “public” can see you. These are Florida Statutes 800.03 Exposure of Sexual Organs and 877.03 Breach of the Peace, Disorderly Conduct. I’ll go into more detail below, but these two laws are used together to get you one way or the other. The crime of Exposure of Sexual Organs means you’re naked where the public can see you and are doing something sexually explicit or lewd like touching yourself or men intentionally flashing women for the sexual arousal. Basically, if you’re being a pervert you’ll be rightfully charged with a crime. The first one is a 1^st Degree Misdemeanor (up to $1,000 and a year in jail) and subsequent ones are big boy felonies.

But, Brian, I just want to go for a swim or lay on the beach topless or nude and there’s nothing sexual about that so I’m fine, right? Not so fast my friends! Try this and you will likely get charged with Breach of the Peace, Disorderly Conduct under Florida Statute 877.03. Florida considers your naked body in public view as a corrupting of public morals and decency regardless of what you are doing. Can’t I go topless? Not if you’re a woman. Florida considers your breasts to be sexual organs and just the sight of them is, therefore, indecent. This doesn’t apply to breast feeding or places like authorized nude beaches. These are 2^nd Degree Misdemeanors which could you get you up to 60 days in jail and $500 in fines.

 

Now, into the actual law stuff …

 

FSA 800.03 Exposure of Sexual Organs

(1) A person commits unlawful exposure of sexual organs by:

(a) Exposing or exhibiting his or her sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner; or

(b) Being naked in public in a vulgar or indecent manner.

(2)(a) Except as provided in paragraph (b), a violation of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) A second or subsequent violation of this section is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3) The exposure of sexual organs by any of the following does not violate this section:

(a) A mother breastfeeding her baby; or

(b) An individual who is merely naked at any place provided or set apart for that purpose.

 

FSA 877.03 Breach of the Peace, Disorderly Conduct

Breach of the peace; disorderly conduct.—Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

 

WHAT FLORIDA CASES DISCUSS PUBLIC NUDITY?

There are many Florida cases that discuss public nudity. This makes sense given the vast stretches of beaches available for sunbathing and swimming and natural areas for camping and hiking. I have chosen a representative group of these cases to discuss.

 

In Goodmakers v. State, 450 So.2d 888 (Fla. 2^nd DCA 1984), a man was found naked and passed out on his back and he was charged with Exposure of Sexual Organs under Florida Statute 800.03 because his penis was exposed. The Court held that mere nudity is not enough under the statute and that it must involve a state of sexual arousal and an “unlawful indulgence in lust, eager for sexual indulgence”.

United States v. A Naked Person Issued Notice of Violation, 841 F. Supp. 1153 (M.D. Fla. 1993), a person was on a Federally controlled beach naked and charged under 800.03. Everyone agreed that the person was simply naked. The Federal District Court followed the decisions of the Florida courts to find that just being naked in public is not enough to be guilty of Exposure of Sexual Organs under 800.03.

Duvallon v. State of Florida, 404 So.2d 196 (Fla. 1st DCA 2013), involved a protester being prosecuted under 800.03. She was wearing just a placard which exposed (gasp) side boob and her butt. Since she wasn’t doing anything lewd or sexual in nature she could not be prosecuted under 800.03.

 

“Brian, this is great! We can be naked in public as long as we aren’t being sexual or lewd, right?”

Negative Ghost Rider.

 

While just being nude isn’t enough to be convicted under 800.03, the Court in Goodmakers, supra also held that the man could have been charged for disorderly conduct and that’s how they get you. So, let’s get into how disorderly conduct and local ordinances are used. Most of these cases are about women (not men) just being topless. Since just being nude or topless is not an Exposure of Sexual Organs, Florida uses Disorderly Conduct and local ordinances to prohibit nudity. Being in the deep south you likely won’t be surprised by anything here.

 

Moffett v. State, 340 So.2d 1155 (Fla. 1977), involved two women convicted of disorderly conduct for topless sunbathing on a public beach. The court, in an apparent moment of forgetfulness of the separation of church and state, actually, cites Genesis 3:7 (where Adam and Eve are punished by God and made ashamed of their bodies) as authority for its decision that women’s naughty breasts shouldn’t be seen in public stating:

“Since the beginning of civilization public nudity has been considered improper. We are fully aware of the changing social values as expressed in new modes of dress, but are convinced that by enacting Section 877.03, Florida Statutes (1975), the Legislature intended to prohibit adult females from appearing in public places, including Florida's public beaches, with openly exposed breasts.”

South Florida Free Beaches v. City of Miami, 548 F.Supp 53 (S.D. Fla. 1982), is one of the most cited cases on public nudity in Florida. The Plaintiffs were a group of nudists who had for years used a portion of a Miami public beach for nude sunbathing without issue. Miami decided to start enforcing its ordinances against nude sunbathing as well as 877.03 so the nudists took them court to stop it on Constitutional grounds. They lost. Even worse, the Court held that nudity, even on private property where the public could see it, was not protected and was illegal under 877.03. The 11^th Circuit upheld the decision on appeal generally because … morals. The takeaway is the 11^th Circuit refused to consider the constitutionality of 877.03 because of the other constitutionally valid basis to find nude sunbathing unlawful.

McGuire v. State, 466 So.2d 236 (Fla. 4^th DCA 1985), is an interesting case. A woman was convicted of indecent exposure for jogging topless on a public beach that had recently been a private clothing optional beach for 25 years or more. She was charged with a violation of Rule 16D-2.04(1)(e) of the Florida Administrative Code which says, "In every bathing area all persons shall be clothed as to prevent any indecent exposure of the person. All bathing costumes shall conform to commonly accepted standards at all times.” She challenged her conviction on constitutional grounds and lost at every turn with court reiterating that nudity, in this case women’s breasts, is naughty and can be regulated even quoting the Biblically based finding in Moffett.

While not a nudity case, Shetler v. State, 681 So.2d 730 (Fla. 2d DCA 1996), is instructive of the mindset of the Florida courts and the importance of knowing the local ordinances. Shetler was wearing a T-Back bathing suit while selling hot dogs and was charged under a county ordinance prohibiting public nudity and “T-Back” bathing suits. She challenged the constitutionality of the ordinance telling her what kind of bathing suit she had to wear as infringing her right to free expression. She wasn’t nude after all. Had the court progressed any over the past decade? Not a lick. The Court upheld the ordinance saying that, “the county's interest in protecting and preserving the health, safety, welfare, and morals of its citizens would justify this intrusion upon constitutionally protected expression”. So, no skimpy bathing suits for women because … morals of “the people”.

Fransden v. County of Brevard, 800 S.2d 757 (Fla. 5^th DCA 2001) was a specific challenge to an ordinance that banned only women from being topless in public on grounds that it was a violation the Equal Protection Clause as well as under Article 1, Section 2, 1998 Revision 9 to the Florida Constitution which added the words “female and male alike” and other language to show equality under Florida law. The challenge followed the footsteps of People v. Santorelli, 95 N.Y. 2d 412 (2000), that found the same law in New York to be unconstitutional. In New York, women can be topless anywhere in public that allows men to be topless because breasts are not inherently sexual in nature. Well, if you think Florida is going to think like those damn Yankees you would be wrong! The Court held that women’s breasts are dirty, can be regulated by the government, and should be hidden. Men’s breasts are not and that the ordinance against being topless applied to women only was not a violation of the Equal Protection Clause. Oh, and that amendment to the Florida Constitution codifying the “progressive” concept of equal treatment under the law? The Legislature specifically denoted in the legislative record that it was not meant to sanction same-sex marriage. Florida is going to Florida.

State v. Kees, 919 So.2d 514 (Fla. 5^th DCA 2005), is certainly not the kind of innocent nudist or topless type nudity being addressed here. In fact, the facts are pretty nasty. However, the findings of law are important to those wishing to be nude in public. Here the Defendant, Kees, was charged under 796.07 (prostitution) and 800.03 for exposure of her sexual organs in a bar that only required your first name and a nominal fee to enter, which two undercover cops happily did. Once inside, nudity and explicit sexual acts were taking place. Like, right there. I read it so you don’t have to and now I’m going to go wash my hands. The Court clarified two things of importance for nudists. First, the bar didn’t do enough to be considered “private” so don’t think that you can start stripping down because you paid a cover charge at a place where everyone else is doing it. Second, it doesn’t matter that no one else cares if you are naked because the cops count as the public.

Back to just being nude or topless. Book v. City of Daytona Beach, 2009 WL 3720932, (U.S. Middle District of Florida 2009)(unreported) discussed the constitutionality of an ordinance banning women being topless. The Federal District Court went so far as to find that women’s breasts, as opposed to men’s breasts, are “traditional erogenous zones” that could be regulated on moral grounds stating;

“the important government interest in a similar statute was “the widely recognized one of protecting the moral sensibilities of that substantial segment of society that still does not want to be exposed willy-nilly to public displays of various portions of their fellow citizens' anatomies that traditionally in this society have been regarded as erogenous zones,” including the female breast.” Id. at *2 (M.D. Fla. Nov. 5, 2009)(citing United States v. Biocic, 928 F.2d 112, 115 n.3 (4^th Cir. 1991)(woman convicted of “indecent exposure” for simply being topless on a beach under Virginia anti-nudity laws upheld).

 

 

WHERE DOES THIS LEAVE THOSE WHO WANT TO BE NAKED IN FLORIDA?

 

First, you can be naked all you want in the privacy of your home. Just stay away from windows viewable to the public. If your yard is private and out of public view you can be naked all you want there as well. As far as public nudity, like being nude at the beach, skinny dipping, etc. you do so at your own risk. Just know that if law enforcement spots you it could mean an arrest or citation to appear under 877.03 for disorderly conduct. If you are alone in a remote area, far enough away from everyone else that it’s not obvious, maybe just topless, or sufficiently in the water to hide your nudity, you might just get a warning and told to put your clothes back on. It really depends on the good nature and discretion of the law enforcement officer. However, if someone calls law enforcement and complains about seeing you nude, especially if there are children around, you’re probably going to get a new set of wrist jewelry. Lastly, places set aside to be nude are all over Florida. Clothing optional and nude beaches, resorts, campgrounds, and even entire communities are likely closer to you than think and you don’t have to worry about all of this law stuff or judgment from others while you are there.

 

If you have questions, comments, or need legal help in either Alabama or Florida just reach out to us at any time.