Yauch v. State

• Decision Date: 20 September 1973
• Docket Number: No. 11173--PR,11173--PR
• Citation: 109 Ariz. 576,514 P.2d 709
• Parties: Edgar D. YAUCH and Leota J. Porter, Petitioners, v. STATE of Arizona et al., CITY OF TUCSON, Pima County, Arizona, the Real Party in Interest, Respondents.
• Court: Arizona Supreme Court

Page 709

514 P.2d 709

109 Ariz. 576

Edgar D. YAUCH and Leota J. Porter, Petitioners, v. STATE of Arizona et al., CITY OF TUCSON, Pima County, Arizona, the Real Party in Interest, Respondents.

No. 11173--PR.

Supreme Court of Arizona, In Banc.

Sept. 20, 1973.

John W. Ross, Jr., Tucson, for petitioners.

Herbert E. Williams, Tucson City Atty. by William E. Hildebrandt, Tucson City Prosecutor, Tucson, for respondents.

Messing, Hirsh & Franklin, P.C. by Robert J. Hirsh, George J. Feulner, Jr., Tucson, amicus curiae. STRUCKMEYER, Justice.

This cause originated as a petition for special action in the Court of Appeals, Division 2. Petitioners were charged and convicted in the city court of Tucson with violating four of its ordinances. They appealed to the Superior Court of Pima County and, after the judge presiding therein denied petitioners' motion to dismiss, this action in the Court of Appeals was brought to declare the four ordinances unconstitutional. Opinion of the Court of Appeals, 19 Ariz.App. 175, 505 P.2d 1066, vacated and the ordinances declared constitutional in their entirety.

The ordinances in question, being, respectively, 11--25.1 through 11-25.4, were enacted in 1967. Ordinance 11--25.1 requires that any female entertaining or performing, or serving food or spirituous liquors in any restaurant, bar, nightclub, cabaret and other enumerated establishments be costumed in such a manner that the nipples and aureola are firmly covered by fully opaque material. Ordinance 11--25.3 provides that any person entertaining or performing or serving food or spirituous liquors in such establishments be costumed in such a manner that the lower part of the torso, consisting of the private parts and anal cleft are fully covered by opaque material. Ordinances 11--25.1 and 11--25.3 read:

'Sec. 11--25.1. Clothing requirements of certain female entertainers and waitresses.

Any female entertaining or performing any dance or in any play, exhibition, show or other entertainment, or any female serving food or spiritous (sic) liquors as defined by Title 4, Chapter 1, Article 1, Arizona Revised Statutes, 1956, as amended, in a restaurant, nightclub, bar, cabaret, tavern, tap room, theater, or in a private, fraternal, social, golf or country club, as defined by Title 4, Chapter 1, Article 1, Arizona Resised Statutes, 1956, as amended, or in any public place, who appears clothed, costumed, unclothed or uncostumed in such a manner that the nipple and the aureola (the more darkly pigmented portion of the breast encircling the nipple) are not firmly covered by a fully opaque material, is guilty of a misdemeanor. (Ord. No. 3053, § 1, 10--16--67)

Sec. 11--25.3. Clothing requirements of certain dancers, etc.

Any person entertaining or performing any dance or in any play, exhibition, show or other entertainment, or any person serving food or spirituous liquors as defined by Title 4, Chapter 1, Article 1, Arizona Revised Statutes, 1956, as amended, in a restaurant, nightclub, bar, cabaret, tavern, tap room, theater, or in a private, fraternal, social, golf or country club, as defined by Title 4, Chapter 1, Article 1, Arizona Revised Statutes, 1956, as amended, or in any public place, who appears clothed, costumed, unclothed or uncostumed in such a manner that the lower part of his or her torso, consisting of the private parts or anal cleft or cleavage of the buttocks, is not covered by a fully opaque material or is so thinly covered as to appear uncovered, is guilty of a misdemeanor. (Ord. No. 3053, § 1, 10--16--67)'

Ordinances 11--25.2 and 11--25.4 may be simply described as prohibiting any person conducting or operating any of the establishments enumerated in 11--25.1 and 11--25.3 from employing a female unclothed as prohibited by 11--25.1, or any male or female unclothed as prohibited by 11--25.3.

From the most perfunctory reading of the Tucson ordinances it is clear that they are designed to prohibit servers of food and spirituous liquors and performers in establishments serving food and spirituous liquors from appearing with those areas of the human body uncovered which ordinarily have sexual connotations. It can therefore be reasonably concluded that Tucson's ordinances are but statutory applications of the common law offense known as indecent exposure, the elements of which are the wilful exposure of the person in a public place in the presence of others. LeRoy v. Sidley, 1 Sed. 168, 82 Eng.Reprint 1036 (1663); Rex v. Crunden, 2 Campbell 89, 170 Eng.Reprint 1091 (1809).

The act of indecent exposure was punished at the common law as a public nuisance, an act Malum in se.

'It is a nuisance and punishable at common law because it is an act malum in se, when committed as alleged in the indictment, affecting the public morals. A public nuisance, because it is violative of the rules of propriety, noxious to moral sensibilities, outrages decency, shocks, and is offensive to those feelings of chastity that people of ordinary respectability entertain, and has a tendency to corrupt the public morals.' Truet v. State, 3 Ala.App. 114, 57 So. 512 (1912).

As has been said more recently of the phrase 'indecent or obscene exposure of his person':

'In short, the legal writers and scholars have long conceived the phrase to signify and relate to a lascivious exhibition of those private parts of the person which instinctive modesty, human decency, or common propriety require shall be customarily kept covered in the presence of others. (Citation of authorities)', State v. Galbreath, 69 Wash.2d 664, 668, 419 P.2d 800, 803 (1966).

The evil sought to be suppressed is not only the infliction of nudity upon a beholder's moral sensibilities, but also the public degradation and debasement of the individual exposed.

Prohibitions against indecent exposure are not necessarily founded on matters obscene or pornographic:

'The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central...