Town nixes down­town shirt­less pro­hi­bi­tion

Cecil Whig - - LOCAL - By BRIANNA SHEA

bshea@ce­cil­whig.com

— Al­though the weather may be get­ting cooler, men can still feel free to doff their tops while walk­ing around down­town.

Af­ter do­ing some re­search, Mayor Rob Alt and the town board have de­cided not to pur­sue an or­di­nance pro­hibit­ing male top­less­ness from the down­town area, cit­ing po­ten­tial le­gal is­sues such a law would cre­ate.

“I would not put us in a po­si­tion that would end up putting us in lit­i­ga­tion, know­ing what I know now,” Alt said on Wed­nes­day.

Alt first floated the idea for such an or­di­nance in July and asked town at­tor­ney John Downs to in­ves­ti­gate whether the town could ban shirt­less men

ELK­TON

from the busi­ness district, which he de­scribed as one that is served by pub­lic side­walks and fea­tures busi­nesses. Men walk­ing around with­out a shirt is bad for busi­ness and presents a bad town im­age, Alt said, not­ing that sev­eral res­i­dents had brought up the is­sue to him as well.

Alt’s idea for the or­di­nance would not have per­tained to those ex­er­cis­ing or en­gag­ing in recre­ational ac­tiv­i­ties on pub­lic prop­erty nor those on pri­vate prop­erty. Those who are caught would have been given a writ­ten warn­ing fol­lowed by writ­ten ci­ta­tions for sub­se­quent of­fenses with­out jail time.

But fol­low­ing a dis­cus­sion with Downs and the town board, Alt said Wed­nes­day that the town has no plans to move for­ward with draft­ing such an or­di­nance. Downes re­searched how the is­sue is han­dled in other places as well as rel­e­vant court cases.

Downs found that some towns used broad lan­guage, oth­ers have used more con­cise and clear lan­guage, and oth­ers have not touched the sub­ject. Downs pre­sented the town with a case from Palm Beach, Fla., which dealt with pro­hi­bi­tion of all top­less­ness and was chal­lenged by a male jog­ger who was cited by town po­lice. Af­ter ap­peals on both sides, the United States Court of Ap­peals for the 11th Court found the law to be un­con­sti­tu­tional.

Downs also found an­other case fo­cused on a New York cou­ple who chal­lenged a law re­quir­ing “cus­tom­ary street at­tire” in 1937. The Court of Ap­peals of New York also over­turned their con­vic­tion on con­sti­tu­tional grounds, cit­ing a vague­ness of its de­scrip­tion.

Eas­ton also has a top­less pro­hi­bi­tion on the books and has en­forced it in vary­ing de­grees in re­cent years, usu­ally draw­ing me­dia in­ter­est when it does.

“It’s al­ways a bal­ance be­tween in­di­vid­ual ex­pres­sion and per­sonal free­dom and the town’s le­git­i­mate in­ter­est in reg­u­lat­ing some deco­rum in the town,” Downs said, cit­ing cases such as the two he found. “That sort of seems to be on each end of the spec­trum and how each town ad­dresses that is up to the town.”

Alt said the town doesn’t want to vi­o­late any­one’s First Amend­ment right to ex­press them­selves.

“We would never want to step on any­one’s civil rights,” Alt said. “That was never our in­tent.”

Alt said if a pri­vate or­ga­ni­za­tion holds an event on town prop­erty and has a dress code, the or­ga­ni­za­tion can en­force their dress reg­u­la­tions. He also said busi­nesses can also en­force a dress code, with signs such as “No shirt, no shoes, no ser vice.”

CE­CIL WHIG FILE PHOTO

The Elk­ton Town Board of Com­mis­sion­ers has de­cided to not move for­ward with an or­di­nance to man­date peo­ple wear shirts within town lim­its.

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