Topless Protestor Files Notice of Claim in Florida

Q Boyer
DAYTONA BEACH, Fla. — In the latest chapter of the ongoing saga of "top-free" protestor Elizabeth Book, she has filed a notice of claim against the city of Daytona Beach, giving authorities six months to either deny the claim or enter into good faith negotiations to settle the claim.

The case stems from an incident in March 2004, when Daytona police arrested Book for supposedly violating the city’s public nudity ordinance. The problem with the arrest was that Book’s exposure of her breasts fell within an exception to the ordinance that allows for nudity within the context of a legitimate political protest.

In fact, Book even sought out permission to conduct her protest in advance, and was advised by the city that she did not need a permit. According to Book’s notice of claim filed against the city, it was after news of her planned protest spread that police decided to intervene, first by sending an officer to her house to attempt to persuade her not to stage the protest, and ultimately by arresting her in the middle of it.

As noted in Book’s claim notice, she was forced to defend her protest through a trial and two appeals, in which all the courts ruled in her favor, and “conclusively determined that her demonstration protest fell squarely within the exemptions to the public nudity ordinance.”

Despite that outcome, the city was undeterred in its efforts to discourage Book from staging similar protests in the future, as evidenced by Book’s next arrest in July 2005.

Protesting this time in front of nude Grecian statues in front of the city’s Peabody Auditorium, Book again announced her intention to protest in advance, and again headed into her protest believing that she acting within the law — and Daytona police again arrested Book, this time for disorderly conduct.

The legal foundation of the city’s second arrest of Book was no more solid than the rationale employed in her first arrest, however, as Florida law “is clear that the disorderly conduct statute cannot be used as a vehicle to disrupt or silence 1st-Amendment-protected expression,” according to Book’s claim notice.

Book is represented in the case by 1st Amendment attorney Larry Walters. Asked why the city would continue to push the case when every court so clearly has ruled in favor of Book, Walters told XBIZ that he thinks the city’s legal team is in “denial” and that the city’s conduct in the case has been so bizarre that it has led him to “feel like I’m in a parallel universe sometimes.”

“They’re really grasping at straws, because they are so desperate to stop her from baring her breasts at Bike Week,” Walters said. “They despise anything sexual or erotic in nature; they view themselves as arbiters of morality and decency, and they hate to lose.”

Walters said the importance of the case to the adult industry is that it serves to the industry’s benefit to have anybody beat City Hall when it comes to ordinances that affect the conduct of adult businesses.

“Any time someone can chip away at these ordinances, adult entertainment businesses benefit,” Walters said, “because that’s who these laws are really aimed at, to begin with.”

Now, the city’s stubbornness could cost them in more ways than one; in addition to the notice of claim Walters also has filed a response to the city’s motion for a rehearing of its appeal of the dismissal of the case against Book, an appeal that the 5th District Court of Appeals declined to hear in August.

On top of damages and attorney’s fees that total more than $100,000 combined, in his response to the city’s motion for rehearing, Walters has requested that the court impose sanctions against the city for its “patent disregard for the basic requirements of the rehearing procedure.”

When it comes to the court’s opinion on abuse of the rehearing procedure, Walters told XBIZ that the courts “take this sort of thing very seriously.”

“The biggest misstep [by the city] was to file the motion for a rehearing,” Walters said.

Throughout his strongly worded response to the motion, Walters emphasizes procedural errors the city has made. For example, due to the fact that the 5th District declined to hear the city’s appeal, there was no written opinion issued by the court. In previous cases handled by the 5th District, the court has “noted that where a written opinion is not issued, pursuit of a motion for rehearing constitutes an abuse of procedure,” according to Walters’ response to the city’s motion.

Walters told XBIZ that the importance of the case to the adult industry lies in the original purpose of the public nudity ordinance that the city tried to enforce against Book.

“This is the same ordinance that they’ve tried to apply to the [strip] clubs,” Walters said. “There wasn’t a big problem with public nudity in Daytona — that’s not where this comes from.”

Walters explained that when bars began opening that offered partially nude or fully nude dancing, but that did not sell alcohol, existing city ordinances that regulated nudity as a function of liquor licensing provisions were not sufficient to prevent such bars from operating, so the city had to come up with public nudity ordinances that could be applied to the bars.

Due to constitutional concerns and the need to avoid content-based speech restrictions, the public nudity ordinances had to be crafted with exceptions for 1st Amendment-protected speech and conduct — the very sort of exception that Book’s protests fall under, according to the courts.