San Onofre State Beach

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    3. DPR Director Ruth Coleman says this is all about avoiding liability, because a State employee at San Onofre State Beach filed a sex discrimination complaint. Apparently, exactly one such complaint exists.

  
For the text of the complaint, CLICK HERE.

   NAC responds:

The complaint from Ms Britto fails to state any colorable claim of discriminatory conduct that would support a claim of “hostile work environment” sexual harassment.

First, state and federal law prohibits discrimination in employment:

The key factor here is, and the first element the potential plaintiff must prove, is that he or she was treated differently in the employment because of his or her gender. In other words was the conduct such that the complaining party was treated differently because of the person’s gender, and if the person were of the opposite sex, he or she would not have been subjected to the disparate treatment.  Absent proof that the conduct complained of would not have occurred if the complaining party were of the opposite sex, the employer cannot be held liable for discrimination under a “hostile work environment” theory. (See Lyle v. Warner Bros. 38 Cal. 4th 264)

In the case of San Onofre Trail 6, the fact that park employees may have witnessed criminal activity such as lewd conduct, indecent exposure, or may have found “used condoms, pornographic materials, adult sex toys, etc.” does not necessarily mean that the employee has suffered discrimination, as incidents such as these would be equally offensive to both males and females.

Second, this complaint makes no mention of any specific discriminatory conduct or incident directed at her or any other person. However, assuming for the moment that in a particular instance discriminatory conduct was directed at an individual employee because of their gender, the next inquiry is whether liability may be imputed to the employer. Where discriminatory acts of harassment by a co-worker or private individual are alleged, the employer can be held liable only where "its own negligence is a cause of the harassment." In these cases notice of the sexually harassing conduct triggers an employer's duty to take prompt corrective action that is "reasonably calculated to end the harassment.” (See Swenson v. Potter 271F.3d 1184 and Folkerson v. Circus Circus 107F.3d 754) Additionally, California Government Code § 12940(j)(1) states in part: “In reviewing cases involving the acts of nonemployees, the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of those nonemployees shall be considered.”

If discriminatory conduct toward an employee has occurred, closing the traditional clothing optional beach to nude sunbathing cannot be seen as being “reasonably calculated to end the harassment.” Removing the law abiding naturists, who are not a cause of any discriminatory conduct, would only make it easier for the miscreants to “do their thing.” The naturists have worked hard over the years to inform the public of proper clothing optional beach behavior and actively discouraged lewd conduct on the beach. Therefore, closing the clothing optional area could actually be seen a increasing the likelihood that the State could be liable for such conduct.

Third, the employer may be liable for harassment, i.e. discriminatory acts, against employee by non-employee (private individual) if the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions which are "reasonably calculated to end the harassment” when it knew or should have known of the conduct. (See Folkerson v. Circus Circus 107F.3d 754)

Clearly, because lewd conduct in public and indecent exposure are violations of state Penal Code, the state cannot be seen as having ratified or acquiesced in the harassment. When law enforcement officers discover individuals violating these laws, they are cited and prosecuted.

Last, the opening sentence inSwensen states “When an employee accuses a fellow employee [or private individual] of sexual harassment, the employer must reconcile competing rights: the accuser's right to a harassment-free workplace and the accused's right not to be disciplined without fair procedures and sufficient proof of wrongdoing.”

Absent any conduct that, in fact, discriminates against an employee because of his or her gender, and evidence that the state has ratified or acquiesced in the harassment, no liability can be imputed to the state.


 

    4. A portion of San Onofre State Beach really can be managed for clothing-optional recreation.      
  
And it’s been done for years and years!

San Onofre State Beach surrounds the San Onofre nuclear power plant. North of the power plant are the Trestles, offering some of the best surfing around. From the nuke plant south to the boundary of the Camp Pendleton Marine Corps base is more than 20,000 feet of beach - roughly three and three-quarters miles.

Drive slowly through the entire parking lot, and then hike for half a mile down the cliff at Trail 6, and south along the beach. Out of the way at the far, far south end of the State Beach, you’ll find the traditional clothing-optional area. It occupies the absolutely most remote 1,000 feet of the 20,000 foot beach. That’s five percent.

Yet DPR Southern Division Chief Tony Perez has seen fit to claim that those who use the clothing-optional portion of the beach at Trail 6 are somehow managing to crowd out the beach users on the remaining 95 percent of the beach!


View Larger Map

Take a look, above, at a recent satellite image of the Trail 6 area at San Onofre State Beach. Note the cars in the parking lot. They’re all at the south end of the park, because that’s where the clothing-optional beach is located, and the clothing-optional beach is popular. Grab the image and move up the coast to the northwest, toward the nuclear plant. Keep sliding the window northwest, away from the clothing-optional beach. Note the empty beach and the empty parking lot.

Crowding out exactly whom, Mr. Perez?


THE IMPORTANCE OF INFORMATIONAL SIGNAGE

The truth is that a portion of San Onofre State Beach has been operated successfully as a clothing optional beach for years. For decades!

But it can be done even better. As any trained park manager knows, an important part of management is the prevention of conflicts between disparate groups of users. Users benefit from informed expectations. One time-tested way of avoiding usage conflict is with simple informational signage.

A typical letter concerning San Onofre arrived at DPR regional offices in 2006. It began: “I am very disappointed with the state park for my [sic] not warning the public about the nudist beach at trail 6. I brought my dog to walk there yesterday ...”

The obvious solution is informational signage.

NOTICE
BEYOND THIS
POINT
YOU MAY
ENCOUNTER NUDE
SUNBATHERS



 

MORE RESOURCES

DOCUMENTS FROM NAC’S PUBLIC RECORDS ACT REQUESTS

  • DPR Trail 6 Background Document
    Put together by DPR sources. Has appeared in various forms as boilerplate in criminal cases.
    [CAUTION: Contains inaccuracies, as well as outright fabrications and clear reflections of personal bias!]
     
  • DPR Trail 6 Crime Statistics
    Gathered for 10 years by DPR personnel. These stats include more than just the clothing-optional beach; they include incidents in the parking lot and on the top of the bluff. In fact, note just how many incidents take place in those places - and NOT on the clothing-optional beach.
     
  • Proposed No-Nudity Enforcement Plan / Cost
    Without public input, the State of California intends to declare an abrupt end to clothing-optional use at San Onofre, criminalizing a long-standing tradition the State has managed. Does anyone really believe it will cost the State of California a total of less than $500 to enforce such a thing?
     
  • Memo from San Diego County Sheriff’s Office - 1980
    As far back as 1980, DPR and local law enforcement were recognizing the operational and procedural effect of the Cahill Policy. Note the eagerness of some to ignore the policy without proper process - 28 years ago!
     
  • DPR Memorandum on possible changes to CCR 4322
    Steve O’Brien, DPR’s Supt of Law Enforcement, prepared revisions on March 28, 2000.
     
  • DPR Memorandum on the details of the Administrative Procedures Act
    June 26, 2000. Another memo from Steve O’Brien, DPR’s Supt of Law Enforcement. Proof that the Department has known for years of the APA and its requirements vis a vis the Cahill Policy.

more information!

Wait just a minute!

A California Superior Court odered the Department of Parks & Rec to go back to the status quo, as it existed before the DPR attempted to rescind the Cahill/Harrison Regulation. So, does DPR follow the Court’s order, or does it thumb its nose at the judge? Well the ‘Nudity Prohibited’ signs that were newly installed in June are still in place. And the DPR employee at the entry to the State Beach is still blatantly misrepresenting the legality of nudity south of Trail 6.

If you have a broadband connection, you may wish to view THIS VIDEO, which was shot at the entry to San Onofre State Beach on Monday, September 15, weeks after the Court’s order. By the way, the voices in the car are those of Nicky Hoffman Lee and Carmen Hamm of The Naturist Society, and this video has become an exhibit in NAC’s request to the Court of Appeals for a writ to force DPR to remove the signs and stop giving bogus (and chilling) information to prospective visitors who ask about the clothing-optional beach.

Fact or Fiction?

Recently, Department of Parks and Recreation officials have made statements to the press and sent letters and emails responding to people who have expressed opposition to DPR Director Ruth Coleman’s revocation of the Cahill/Harrison policy at San Onofre Trail 6. Are these statements by DPR officials Fact or Fiction?

       1.
DPR acting District Superintendent Joseph M. Milligan states in his letter to those opposing the revocation of the Cahill/Harrison policy:

“Public nudity at the state parks is, and has been, illegal pursuant to California Code of Regulations, Title 14, Section 4322. The Department has not designated any portion of the State Park System as “clothing optional.” Fact or Fiction?

Fiction. The DPR is choosing to ignore the Harrison letter sent to all District superintendents dated June 14,1988 which set DPR policy after the California v. Bost case. In adopting the court opinion as the policy of the state, Harrison stated: "So long as the [clothing optional] activity takes place in a traditionally recognized area it is legal unless and until a complaint from a member of the public is received. Upon such complaint a warning is to be issued and, if not heeded, a violation (of Title 14, California Code of Regulations Section 4322) has occurred."

       2. Milligan goes on to state: “The Cahill Policy only proposed a practical approach to enforcement of Section 4322 in remote areas of the parks.” He further states: ‘This change stems from the fact that the beach area can no longer be considered remote.” Fact or Fiction?

Fiction
. The Cahill Memo of May 14, 1979 makes no mention of the policy’s application only in “remote” or “secluded” areas. The DPR is reading something into the Cahill memo which is, by its plain language, simply not there. Also, even if remoteness were a requirement for application of the Cahill policy, the Trail 6 area is just as remote as it has always been. The geography has not changed.

The Fact is... The full text of the Cahill memo, the Court’s decision in California v. Bost, and the Harrison letter may be seen at:

www.cspra.com/4322summary/index.html, and www.bayareanaturists.org/cahill.html

       3. Milligan also states that the change in policy stems from “…ongoing complaints and concerns regarding inappropriate and unlawful activity, such as nudity, lewd conduct and indecent exposure, requires the Department to enforce Section 4322.” Fact or Fiction?

Fiction
. As noted above, nudity was not illegal in the traditionally clothing optional area at Trail 6.

The Fact is... Lewd conduct in public is a violation of Penal Code section 647(a) and indecent exposure is a violation of Penal Code section 314.1. Friends of San Onofre Beach and the naturist community have always supported State Park law enforcement personnel in their efforts to enforce these laws. Our beach flyer has contained the following language for years.

“NO OVERT SEXUAL ACTIVITY. Nude is not lewd. However, SEXUAL AND/OR LEWD CONDUCT IN PUBLIC IS ILLEGAL, and will not be tolerated at San Onofre State Beach. A clothing optional beach is a public place, and the rules for good behavior are the same as for any other public place. If you wouldn’t do it in front of a police officer, don’t do it here!”

Reducing complaints about the illegal activities does not require revocation of the Cahill/Harrison policy. All DPR needs to do is to continue working with the naturists on the beach as they had in the past, and focus law enforcement efforts on the true cause of the complaints… the sex cruising in the parking lot.

       4. DPR spokesman Roy Sterns stated: “it’s no longer one of those remote beaches that is out of sight and out of mind, that few people go to.” Fact or Fiction?

Fiction and Fact
. While Trail 6 is still remote, it has always been the most occupied section of the entire stretch of the beach at San Onofre. Visitors to the traditional and legal clothing optional section of the beach have consistently provided DPR with significant revenue in day use fees and annual pass sales and camping space fees.

       5. The San DiegoUnion-Tribune report dated June 6, 2008: “Rich Haydon, acting Superintendent for San Onofre State Beach, contends the Cahill policy has been superseded by the federal Civil Rights Act.

Last updated in 1991, the act protects employees from being embarrassed or indirectly harassed due to a “sexually charged” workplace, Haydon said.” Are Haydon’s statements Fact or Fiction?

Fiction
. Court decisions interpreting both the federal and state sexual harassment laws hold that a “sexually charged atmosphere,” much less simple nudity, cannot form the basis of a sexual harassment claim if the conduct complained of was a preexisting condition of the workplace environment.

The Fact is... Employers do have a duty to protect workers from harassing conduct. However, workers offended by simple nudity can be assigned to work in other areas. As to illegal behavior such as lewd conduct in public and indecent exposure, the DPR rangers have a duty to enforce the above-mentioned Penal Code sections for the protection of the public and DPR employees alike. Any person, including non-sworn DPR employees may make a citizens arrest when they observe illegal conduct in the park. Neither the public, nor DPR employees, are powerless when it comes to ridding the park of those who violate the lewd conduct and indecent exposure laws.

       6. In the same article, Haydon is quoted: “Maintenance workers complain about having to clean up condoms, sex toys and other paraphernalia, he said.” Fact or Fiction?

Fiction
. In our conversations with park maintenance workers on the beach, we learned that maintenance workers do not scour the beach picking up trash. All they do on the beach is empty the trash cans. However, the items referred to by Haydon do occasionally turn up in the parking lot and restrooms due the “cruising” problem in the parking lot which is unrelated to the existence of the legal traditional clothing optional area of the beach.

       7. Haydon continued “In the past five years, 82 citations have been issued for lewd behavior to people engaged in sexual acts at the state beach, Haydon said. During the same period, an additional 35 citations were issued for indecent exposure designed to attract the attention of strangers.” Fact or Fiction?

Fiction by Omission
. What Haydon fails to state in which portion of the park these citations were issued, or how many citations resulted in convictions. The south end of the parking lot is well known by those who cruise for anonymous sex in public. Areas such as road side rest stops and parks all around the country have become hot spots for illegal public sexual activity. Haydon implies that the existence of the clothing optional beach is responsible for the sex cruising problem in the parking lot.

As to illegal public sexual activity on the beach, the vast majority of those using to beach for illegal public sex, do so south of the fence marking the northern border of Camp Pendleton. Neither the State Park Rangers, nor the naturists on the clothing optional section of the beach have any authority to stop people from trespassing onto the military property or engaging in any illegal activity while on the base. As noted above, those who attempt to engage in lewd activity on the clothing optional section of the beach are strongly discouraged by the naturist beach users, and are also subject being arrested by State Park Rangers.

       8. Again from the San Diego Union-Tribune: “Last summer, a 32-year-old man was arrested on suspicion of molesting a 12-year-old boy who was sitting on his lap in a vehicle at the Trails 6 parking lot, Haydon said.” Fact or Fiction?

Fiction by Omission
. While reliable information regarding this incident is scarce, various news reports indicate that it was someone on the beach that saw the suspect and the boy on the beach and made the initial call to law enforcement.

       9. Also in the San Diego Union-Tribune: Denny Stoufer, a retired state lifeguard from Carlsbad, said enforcing the ban will be tough.

“If you really want to make this change, it will take an enforcement effort costing hundreds of thousands of dollars,” Stoufer said. “It will have to be a multiyear, multiagency effort. Otherwise, they will never go away.” Fact or Fiction?

Fact
. The DPR barely has enough rangers to deal with important problems at the various state parks and beaches as it is. If they don’t have enough rangers to enforce the Penal Codes prohibiting lewd conduct an indecent exposure in the parking lot, how do they expect to be able to enforce CCR section 4322 on the beach? Somehow, the local DPR management believes that making criminals of the people who have been most helpful to them and supported their efforts to enforce the law on the beach will improve matters and make their jobs easier. It will not.

Allen Baylis
President Friends of San Onofre Beach
Director, Naturist Action Committee
 

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