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A. Definitions: As used in this section, the following terms shall have the following meanings:
NUDITY: A state of dress in which the female breast below a point immediately above the top of the areola, or the male or female genitals, buttocks, anus, or pubic area, are not fully covered by opaque clothing.
PUBLIC PLACE: 1. Any public building, park or stadium;
2. Any publicly owned building or real property;
3. Any public street, sidewalk, alley or right of way;
4. Any area open to the sky to which the public or a substantial group of the public has access and includes, but is not limited to, parking lots, accessways, entryways, private streets, sidewalks, landscaped areas, playgrounds or common areas;
5. All buildings and enclosed places to which the public or a substantial group of the public has access, including such places of entertainment, taverns, restaurants, private clubs, cabarets, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied.
B. Prohibited Acts: A person is guilty of public indecency if the person knowingly or intentionally, in a public place:
1. Appears in a state of nudity;
2. Exposes on his or her person:
a. Any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region, or
b. Any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples; or
3. Engages in any of the following acts:
a. An act of sexual intercourse or sodomy;
b. Masturbation;
c. Fondling the genitals of himself, herself or another person.
C. Exceptions: The prohibition set forth in subsection B of this section shall not apply to:
1. A woman exposing a breast in the process of breast feeding an infant under two (2) years of age, including breast feeding in any location where the woman otherwise may rightfully be, irrespective of whether or not the breast is covered during or incidental to feeding; or
2. Any child under ten (10) years of age; or
3. A licensed sexually oriented business employee performing in a state of seminudity in an adult live entertainment business, in accordance with the requirements of title 5, chapter 15 of this code; or
4. Prior to January 2, 2001, a licensed professional dancer performing in a licensed cabaret, in accordance with the requirements of title 5, chapter 4, article B of this code.
D. Construction And Severability: It is the intention of the city that the provisions of this section be construed, enforced and interpreted in such a manner as will cause the least possible infringement of the constitutional rights of free speech, free expression, due process, equal protection or other fundamental rights consistent with the purposes of this section. Should a court of competent jurisdiction determine that any part of this section, or any application or enforcement of it is excessively restrictive of such rights or liberties, then such portion of this section, or specific application of this section, shall be severed from the remainder, which shall continue in full force and effect.
E. Penalty: Public indecency is a class B misdemeanor.
(Ord. 2000-38, 7-18-2000)
A. Legislative Findings:
1. In many locations throughout the city, the presence of street gang members in public places has intimidated many law abiding citizens;
2. One of the methods by which criminal street gangs establish control over identifiable areas is by loitering in those areas and intimidating others from entering those areas;
3. Criminal street gangs establish control over identifiable areas in order to control narcotics sales and other illegal activities in those areas, and to intimidate law abiding residents;
4. Members of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know police are present, while maintaining control over identifiable areas by continued loitering;
5. The city council has determined that loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the area because of the violence, including unacceptably high rates of drive by shootings, drug dealing and vandalism often associated with such activity;
6. The city also has an interest in discouraging all persons from loitering in public places with criminal street gang members because persons who are not gang members in those circumstances are at risk from drive by shootings and other gang related violence, and at risk to be recruited by gangs;
7. Aggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear; and
8. Current laws are inadequate to deal with problems posed by gang loitering principally because conventional laws generally depend upon the willingness of civilians to testify against gang members and drug dealers, and many civilians are understandably reluctant to put themselves in harm's way by providing such testimony.
B. Definitions: As used in this section, the following terms shall have the designated meanings:
CRIMINAL STREET GANG: Any ongoing organization, association in fact or group of three (3) or more persons, whether formal or informal, having as one of its primary activities the commission of one or more predicate gang crimes, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
GANG LOITERING: Remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.
PATTERN OF CRIMINAL GANG ACTIVITY: The commission, attempt to commit, conspiring to commit, or solicitation of two (2) or more predicate gang crimes within a five (5) year period, provided that the offenses are committed by two (2) or more persons, or by an individual at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal conduct by gang members.
PREDICATE GANG CRIME: 1. The following offenses under the laws of the state of Utah (Utah Code Annotated):
a. Any criminal violation of title 58, chapter 37, 37a, 37b, or 37c, regarding drug related offenses;
b. Assault and related offenses under title 76, chapter 5, part 1;
c. Any criminal homicide offense under title 76, chapter 5, part 2;
d. Kidnapping and related offenses under title 76, chapter 5, part 3;
e. Any felony sexual offense under title 76, chapter 5, part 4;
f. Any property destruction offense under title 76, chapter 6, part 1;
g. Burglary, criminal trespass, and related offenses under title 76, chapter 6, part 2;
h. Robbery and aggravated robbery under title 76, chapter 6, part 3;
i. Any fraud offense under title 76, chapter 6, part 5, except sections 76-6-504, 76-6-505, 76-6-507, 76-6-508, 76-6-509, 76-6-510, 76-6-511, 76-6-512, 76-6-513, 76-6-514, 76-6-516, 76-6-517, 76-6-518, and 76-6-520;
j. Any offense of obstructing government operations under title 76, chapter 8, part 3, except sections 76-8-302, 76-8-303, 76-8-304, 76-8-307, 76-8-308 and 76-8-312;
k. Tampering with a witness or other violation of section 76-8-508;
l. Retaliation against a witness, victim or informant in violation of section 76-8-508.3;
m. Extortion or bribery to dismiss criminal proceeding as defined in section 76-8-509;
n. Any explosives offense under title 76, chapter 10, part 3;
o. Any weapons offense under title 76, chapter 10, part 5;
p. Any violation of title 76, chapter 10, part 15, bus passenger safety act;
q. Any violation of title 76, chapter 10, part 16, pattern of unlawful activity act;
r. Communications fraud as defined in section 76-10-1801;
s. Any violation of title 76, chapter 10, part 19, money laundering and currency transaction reporting act;
t. Burglary of a research facility as defined in section 76-10-2002;
u. Any violation of title 76, chapter 6, part 11, identity fraud act;
v. Felony theft in violation of title 76, chapter 6, part 4, except sections 76-6-404.5, 405, 407, 408, 409, 409.1, 409.3, 409.6, 409.7, 409.8, 409.9, 410 and 410.5;
w. Violations of sections 41-1a-1313 (possession without identification number), 1315 (false evidence of title and registration), 1316 (receiving/transferring stolen vehicles), 1317 (selling/buying with identification number) and 1318 (fraudulent alteration of identification number) of the motor vehicle act.
2. Any federal or state felony offense that by its nature involves a substantial risk that physical force against the person of another may be used in the course of committing the offense, including assault with a deadly weapon, aggravated battery, intimidation, compelling organization membership, homicide or manslaughter, shooting at an occupied dwelling or motor vehicle, kidnapping, carjacking, robbery, residential burglary, drive by shooting, unlawful use or possession of weapons, bribery, tampering with or retaliating against a witness, victim, informant or juror, rape, torture, and arson.
3. Any federal or state offense involving:
a. Money laundering;
b. Felony vandalism;
c. Unlawful sale of a firearm; or
d. Obstruction of justice.
PUBLIC PLACE: Any location open to the public, whether publicly or privately owned.
C. Designated Areas: The chief of the Ogden police department shall by written directive designate areas of the city in which the chief has determined that enforcement of this section is necessary because gang loitering has enabled criminal street gangs to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities. Prior to making a determination under this subsection, the chief shall consult as he or she deems appropriate with persons who are knowledgeable about the effects of gang activity in areas in which this section may be enforced. Such persons may include, but need not be limited to, members of the Ogden police department with special training or experience related to criminal street gangs; other personnel of the department with particular knowledge of gang activities in the proposed designated area; elected and appointed officials of the area; community based organizations. The chief shall develop and implement procedures for periodic review and update of designations made under this subsection.
D. Police Action: Whenever a police officer observes a person whom he reasonably believes to be a member of a criminal street gang engaged in "gang loitering" as defined herein with one or more other persons in any public place, the police officer shall: 1) inform all such persons that they are engaged in gang loitering within an area in which loitering by groups containing criminal street gang members is prohibited; 2) order all such persons to disperse and remove themselves from within sight and hearing of the place at which the order was issued; and 3) inform those persons that they will be subject to arrest if they fail to obey the order promptly or engage in further gang loitering at or within the sight or hearing of the place at which the order was issued.
E. Advocacy Activities: The chief of the Ogden police department shall by written directive promulgate procedures to prevent the enforcement of subsection D of this section against persons who are engaged in collective advocacy activities that are protected by the constitution of the United States or of this state.
F. Violation: A violation of this section is a class B misdemeanor, and upon conviction shall be punishable as set forth in title 1, chapter 4, article A of this code. Any person who fails to obey promptly an order issued under subsection D of this section, or who engages in further gang loitering at or within the sight or hearing of the place at which such an order was issued is subject to a civil penalty of not less than one hundred dollars ($100.00) and not more than one thousand dollars ($1,000.00) for each offense, or imprisonment for not more than six (6) months for each offense, or both. A second or subsequent offense shall be punishable by a mandatory minimum sentence of not less than five (5) days imprisonment.
G. Community Service: In addition to or instead of the above penalties, any person who violates subsection D of this section may be required to perform up to one hundred twenty (120) hours of community service.
H. Police Officer Training: All law enforcement officers within the Ogden City police department charged with enforcing this section will undergo appropriate training on identification of gang members and criminal street gangs.
(Ord. 2007-53, 7-17-2007)
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