(A) Statement of intent. It is the intent of this section to promote the public health, safety, welfare, peace and order of the county. It is the intent of the county to prohibit the exploitation of human nudity for the purpose of promoting the economic interests of any type of business enterprise. It is also the intent of the county to further the government’s interest in avoiding the harmful secondary effects of public nude conduct and lewd or lascivious conduct such as prostitution, sexual assaults and criminal activity. See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Pap’s AM v. City of Erie, 529 U.S. 277 (2000); Ways v. City of Lincoln, 331 F.3d 596 (8th Cir. 2003). The legislative record documents and the Board’s legislative findings concerning negative secondary effects, which are found in § 7.16.01 of the Cass County Zoning Resolution (through Amendment 67), are incorporated herein by reference. This prohibition on public nude conduct and lewd or lascivious behavior is not intended to extend to any expression of opinion or the performance of a bona fide play, ballet or drama which may not be prohibited under the First Amendment to the Constitution of the United States or by Art. I, § 5, of the Constitution of the State of Nebraska. The provisions of this section have neither the purpose, nor effect, of imposing a limitation or restriction on exercises of free speech that are protected by the First Amendment.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number and words in the singular number include words in the plural number. The word “shall” is always mandatory, and not merely directory.
EMPLOYEE. Any person who works on the premises of a business, on a full-time, part-time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, lessee or otherwise. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
NUDE, NUDITY or A STATE OF NUDITY. The showing of the human male or female genitals or pubic area with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering on any part of the areola and nipple, or the showing of covered male genitals in a discernibly turgid state.
PUBLIC PLACE. All spaces owned by or open to the general public, whether or not an admission or cover charge is levied for entrance thereto; and public streets, sidewalks, alleys or other public thoroughfares, and areas in or such close proximity thereto, as to be observed by the public traveling on such street, sidewalk or other thoroughfare.
(C) Nudity prohibited. It shall be unlawful for a person to, knowingly or intentionally, in a public place or in any place open to the public, appear nude or in a state of nudity.
(D) Sexual contact prohibited.
(1) It shall be unlawful for any employee in any business or commercial establishment to have any sexual contact with any other employee, person or patron for gratuity, pay or other remuneration, direct or indirect.
(2) It shall be unlawful for any person or patron to have sexual contact with any employee in any business or commercial establishment.
(3) For the purposes of this division (D), SEXUAL CONTACT shall mean the intentional touching between any person, patron or employee involving contact by or with any person’s, patron’s or employee’s sexual organ, buttock(s) or breast(s), whether covered or not, or kissing, when such contact can reasonably be construed as being for the purpose of sexual arousal or sexual gratification of either party or any observer.
(4) It shall be unlawful for any person purposely or knowingly to solicit, induce or attempt to induce another person to engage in an act or acts prohibited hereunder.
(5) It shall be unlawful for the owner, lessee, proprietor or manager of any business or commercial establishment to knowingly allow any person on the premises of such business or commercial establishment to engage in an act or acts prohibited hereunder.
(E) Exceptions.
(1) No person shall be in violation of this section for breastfeeding a child.
(2) This section shall not apply to children under the age of 12 years old.
(3) No person shall be in violation of this section for appearing nude or in a state of nudity in any dressing/changing room, locker room, restroom facility or hospital, clinic or other similar medical facility in which appearing nude or in a state of nudity is necessary for health-related purposes.
(4) No person shall be in violation of this section for appearing nude or in a state of nudity in the presence of a licensed physical therapist, licensed massage therapist, licensed athletic trainer or licensed cosmetologist, engaged in performing the functions authorized under the license held.
(5) This section shall not apply to models that are part of a nude modeling studio that is part of a proprietary school licensed by the State of Nebraska; or a college or junior college or university supported entirely or in part by public taxation; or a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation.
(6) This section shall also not apply to the exhibition, presentation, showing or performance of any play, ballet, drama, tableau, production or motion picture in any theater, concert hall, art center, museum, school, institution of higher learning or other similar establishment which is primarily devoted to such exhibitions, presentations, shows or performances as a form of expression of opinion, communication, speech, ideas, information, art or drama.
(Ord. 16-02, passed 8-2-2016) Penalty, see § 134.99