RECEIVED MAY 16 1989
FILED FEB 22 1988
MARY ANN HULSE
COUNTY CLERK OF PLACER COUNTY

         IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                 IN AND FOR THE COUNTY OF PLACER
                      APPELLATE DEPARTMENT

THE PEOPLE OF THE STATE OF       )      NO.  75689
CALIFORNIA,                      )      (Muni.Ct.No.CRl-2947)
                                 )
    Plaintiff & Respondent,      )
                                 )      OPINION
vs.                              )
                                 )
ERIC JOHN BOST,                  )
                                 )
    Defendant & Appellant.       )
_________________________________)

     Eric John Bost (Bost) appeals his conviction after
court trial of violating Section 4322 of Title 14 of the
California Administrative Code ("Section 4322"), prohibiting
nudity within the state parks.  Bost contends that his
conviction must be reversed because Section 4322 unconstitu-
tionally infringes his right to "skinny dip"; because the
policies adopted by the state parks with respect to enforcement
of the statute as applied in Bost's case render its enforcement
arbitrary and discriminatory; and because Bost's conduct was not
prohibited by the statute and administrative policies concerning
its enforcement.  We conclude that long-standing and well-
publicized policies concerning nudity in the State Park

                              - 1 -


System define and limit conduct prohibited by Section 4322
and that Bost's activities were not in violation of that
section.  Accordingly, we shall reverse.
     Section 4322 of Title 14 of the California Administra-
tive Code provides:

          "No person shall appear nude while in any
          unit of the State Park System except in
          authorized areas set aside for that purpose.
          The word nude as used herein means unclothed
          or in such a state of undress as to expose
          any part or portion of the pubic or anal
          region or genitalia or any portion of the
          breast at or below the areola thereof of
          any female."

     Violation of that administrative regulation of the
state park system is made punishable as a misdemeanor by Section
5008 of the California Public Resources Code.
     After public hearings conducted by the State Park
System on the question of whether and what areas of the state
parks should be set aside as "clothing optional" areas of the
state parks, the then Director of the California Department of
Parks and Recreation, Russell W. Cahill, adopted a policy that,
"No clothing optional beaches will be designated within the
California State Park System at this time.  During the public
meeting process, it became clear to me that the public is
extremely polarized on this issue.  It also became clear that
there is a serious concern on the part of clothing optional
beach opponents about the extra costs of patrolling beaches so
designated.  [P]  Proponents' arguments that a few miles of beach
be set aside for their use were pervasive (sic).  However,
serious opposition from legislators, county supervisors and
local governing bodies leads me to believe that designating such

                              - 2 -


areas will focus opponents' attention upon what seems to be a
victimless crime at worst, and certainly an innocuous action.
[P]  The cost of extra services argument is a good one.  There-
fore, it shall be the policy of the Department that enforcement
of nude sunbathing regulations within the State Park System
shall be made only upon the complaint of a private citizen.
Citations or arrests shall be made only after attempts are made
to elicit voluntary compliance with the regulations.  This
policy should free up enforcement people to concentrate on other
pressing duties."[1]
     The "Cahill Policy" has remained the enforcement
policy of the State Park System throughout the State of
California.  The policy has been widely disseminated and is
well known within the public, and particularly among those who
enjoy nude sunbathing at the state parks.  In addition, while
the Department has declined to designate specific areas as
clothing optional as permitted by the provisions of Section
4322, a number of locations within various state parks have, by
custom and practice, become known and accepted as areas where
clothing optional activities are tolerated.  Indeed, evidence
introduced at the trial suggests that the Department has, if not
overtly encouraged, at least knowingly failed to discourage in
any way individual and organized nude activities at various
locations within the State Park System over the years.

-----------------
1 The evidence concerning the adoption of policies their
dissemination and public awareness of the policy were not con-
troverted at the trial.  So too, the essential facts surround-
ing Mr. Bost's arrest were not in substantial dispute.

                              - 3 -


     The Bear (sic)[2] Cove area has become well known as a
location within Folsom State Park where clothing optional
activities can take place with the knowledge and without
complaint from enforcement authorities except as specified by
the Cahill policy.  For example, approximately one month before
Eric Bost was arrested at Bear Cove, the Department of Parks and
Recreation acquiesced in the holding of organized "National Nude
Weekend" activities at Bear Cove.
     The availability of clothing optional facilities in
various areas of the state park, including the Bear Cove area,
has been featured in a number of widely available private
publications.  In addition, though the Department of Parks and
Recreation has not officially designated any "clothing optional"
areas within the State Park System, an official publication of a
sister state agency lists areas within several state parks as
being available for clothing optional activities.  The
"California Coastal Access Guide" published by the California
Coastal Commission of the State of California, lists four
"clothing optional" locations in four separate state parks,
though not including Bear Cove.  The listings do not include
references to the prohibition of Section 4322 and, indeed, are
put forth in inviting terms, describing the locations as,
"sandy, clothing optional beach", "popular clothing optional
beach", "popular sunbathing beach; clothing optional", and,
simply, "clothing optional."

-----------------
2.  The record does not tell us if the choice of this area was
an intended pun.

                              - 4 -


     In addition to the testimony of Mr. Bost, who
indicated his awareness of the general acceptance of nudity at
the Bear Cove area of Folsom State Park and, in general, of the
tolerance of clothing optional activities throughout the State
Park System, the testimony of a number of other individuals
active in individual and organized nude activities was
introduced to establish that innocent nude sunbathing and
swimming is at least tolerated, if not encouraged, in various
areas of the state parks.
     Bear Cove, part of the popular Granite Bay recreation
portion of Folsom, is a rather secluded area of beach located in
a cove which, while accessible from the water, is not easily
visible to those passing by on the water or by land.  Because of
this seclusion, it has become a popular location for nude
sunbathing and swimming.  Because of this seclusion, these
innocent activities of nude sunbathers and swimmers has
attracted little private or public attention or criticism.
     On Saturday, August 10, 1985, Mr. Bost was on the Bear
Cove beach dressed only in a pair of scuba diving boots.  A park
ranger entered Bear Cove in a boat, spoke with a number of nude
recreators and ultimately approached Bost.  The ranger stated
that there had been complaints concerning the Bear Cove
activities that day and directed Bost, as he had others, to
dress or that a citation would be issued.  In fact there had
been a single complaint by a passing fisherman.  Appellant
complied, dressed and left the area.

                              - 5 -


     Bost returned to Bear Cove on August 11 and was again
swimming, nude at the Bear Cove area.[3]  The same ranger again
approached the area and Bost.  The ranger advised Bost that he
had been warned yesterday and then, without further warning,
cited him for violation of Section 4322 and asked him to dress.
No complaint had been received of the activities of appellant or
of any others at the Bear Cove area on that Sunday.  A number of
other nude sunbathers present on Sunday were warned and told to
dress.  Evidence was also introduced of one individual who
received a citation on Sunday who had not received a previous
warning either on Sunday or on the previous Saturday.
     Bost's citation led to trial before the municipal
court and the conviction from which he appeals.
     We deal first with Bost's contention that Section 4322
violates his constitutionally protected right to nude sunbath-
ing.  Bost refers us to Williams v. Kleppe (1976) 539 Fed.2d
803.  There, a Federal Circuit Court upheld a national park
regulation prohibiting nude activities on the Cape Cod Seashore
National Park.  In upholding the regulation, however, the court
recognized some constitutionally cognizable interest in nude
bathing where such activities had been historically conducted in
secluded areas where the conduct was unlikely to be offensive to
passers-by.  (Williams v. Kleppe, supra, 539 Fed.2d at 807,
citing Williams v. Hathaway (1975) 400 Fed.Supp.122, 127.)
Appellant does not contend, nor could he based upon any
authority we have found, that the right to engage in nude

-----------------
3.  Perhaps establishing a use of the phrase "double dipping"
outside of the area of public retirement.

                              - 6 -


activities in the state parks or elsewhere is a fundamentally
protected right.  While we do not mean to equate nude sunbath-
ing with activities such as seductive nude dancing or other
purposeful public displays of nudity involving sexuality, the
cases upholding regulation of the latter activities recognize
that there are legitimate state interests in prohibiting nudity
which might be offensive to others in public places.  (Crownover
v. Musick (1973) 9 Cal.3d 405; 107 Cal.Rptr. 681; Eckl v. Davis
(1975) 51 Cal.App.3d 831, 124 Cal.Rptr. 685).  We conclude that
the potential that simple nude sunbathing or swimming activities
may be offensive to the sensibilities of other state park users
is sufficient to warrant the prohibition of such activities
within the State Park System.  Section 4322 is a valid and
constitutional exercise of the police power of the state.
     We will address Appellant's contentions concerning the
interpretation of Section 4322 and the policies concerning its
enforcement together, as their resolution raises common issues.
     We note, first, that Appellant has made no contention,
nor is there any evidence, that his prosecution was grounded on
enforcement policies that singled him out for prosecution based
on some constitutionally prohibited basis.  Absent such
evidence, the fact that certain persons, including Appellant,
are cited for violation of Section 4322 while others are not, is
not grounds for reversal of his conviction.  (See, for example,
Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr.
204, Oyler v. Boles (1962) 368 U.S. 448, 456, 7 L.Ed.2d. 446,
453.)  Appellant's contentions concerning "arbitrary and
discriminatory enforcement" are more appropriately seen as a

                              - 7 -


challenge to the section as being rendered unconstitutionally
vague due to the application of the enforcement policy of the
Department of Parks and Recreation as typified in this case.
The contention has substantial merit.
     It is a fundamental component of due process,
protected both under Article 1, Section 7, of the California
Constitution and the Fourteenth Amendment to the United States
Constitution, that there must be a certain level of definiteness
in criminal statutes.  (Burg v. Municipal Court (1983) 35 Cal.3d
257, 198 Cal.Rptr. 145.)  "Today it is established that due
process requires a statute to be definite enough to provide (1)
a standard of conduct for those whose activities are proscribed
and (2) a standard for police enforcement and for ascertainment
of guilt." (ibid.)
     In order to meet the first test of definiteness, a
statute must give fair notice of what conduct it seeks to
prohibit.  "A statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its applica-
tion violates the first essential of due process of law."
(Connelly v. General Construction Company (1926) 269 U.S. 385,
391; 46 S.Ct. 126, 127; 70 L.Ed.  322.  It is evident that the
prohibitory language of Section 4322 itself gives at least
reasonably fair notice of the total prohibition of nudity in the
state parks, except in authorized areas.  Passing for the
moment, the question of "authorized areas", we note that the
statute, without more, is sufficiently clear and precise to warn
people of common intelligence of the conduct it prohibits.  To

                              - 8 -


end the analysis of the problem here, as respondent suggests,
however, would impermissably ignore the uncontroverted evidence
of the long-standing tolerance and encouragement of nude
activities in certain areas of various state parks.
     The due process requirement of precision is intended
to provide ordinary individuals with knowledge of what it is the
state seeks to prohibit them from doing.  "The notice provided
must be such that prosecution does not 'trap the innocent'
without 'fair warning' (Grayned v. City of Rockford (1972) 408
U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222.)" (Burg v.
Municipal Court, supra, 35 Cal.3d at 271; 198 Cal.Rptr. at 153.)
While the usual problem is the vagueness of statutory language,
we conclude that where long-standing and well publicized
official policies of the state expressly permit or encourage
activities which are technically unlawful, prosecution based upon
such conduct offends basic notions of due process.
     Courts routinely refer to external indicia of
precision, including announced administrative policy, to
interpret otherwise vague statutes with the precision necessary
to avoid their unconstitutionality.  (See, for example, Pennisi
v. State Fish and Game (1979) 97 Cal.App.3d 268; 158 Cal.Rptr.
683; Burg v. Municipal Court, supra, 35 Cal.3d 257, 272; 198
Cal.Rptr. 145, 154; County of Nevada v. McMillan (1974) 11
Cal.3d 662, 673; 114 Cal.Rptr.345.)
     In Pennisi, for example, the court considered evidence
of well publicized policies of the Fish and Game department
concerning methods of measuring fish net mesh to determine their
legality to clarify the language of a purportedly vague statute

                              - 9 -


providing for civil and criminal penalties.
     In Burg, the Supreme Court looked to external evidence
acquainting the public with the effects of drinking on
determined blood alcohol levels in holding that the provisions
of subsection (b) of Vehicle Code section 23152, prohibiting
driving with a blood alcohol level of .10% by volume, provided
fair notice of the conduct prohibited.  Among the external
indicia of notice relied on by the court was the common
Department of Motor Vehicles driver information pamphlet.
     These cases demonstrate that apparently vague
statutory language can be given meaning so as to provide fair
notice by reference to external indicia of meaning, including
broadly disseminated enforcement policies.
     We believe that similar external indicia, when in the
form of well publicized and widely known policy statements and
practices, can create sufficient confusion in the mind of a
reasonable person as to what conduct is actually prohibited by
the state so as to render enforcement of an otherwise clear
Penal statute violative of due process in particular
circumstances.
     Before declaring a statute unconstitutional, however,
we are obligated to ascertain if it is subject to definition
consistent with legislative intent that avoids its
unconstitutionality.  (Pryor v. Municipal Court (1979) 29
Cal.3d 238; 158 Cal.Rptr. 330; People v. Soto (1985) 171
Cal.App.3d 1158; 217 Cal.Rptr. 795.)  As we have just noted,
such interpretation may make reference to external indicia.
Moreover, the construction of a statute by the agency charged

                             - 10 -


with its enforcement is entitled to great weight.  (California
Welfare Rights Organization v. Bryan (1974) 11 Cal.3d 237, 113
Cal.Rptr. 154; Pennisi v. State Fish and Game Department, supra,
97 Cal.App.3d 272, 284, 158 Cal.Rptr. 683, 687.) We believe
that the statutory language and policies can be harmonized to
arrive at a statutory construction consistent with legislative
intent and due process notice requirements.
     Applying these rules to the statute in question we
reach several conclusions.  First, we conclude that, though the
1979 Cahill policy eschews an intention on the part of the
Department to designate clothing optional beaches, the
subsequent enforcement practices and policies of the Department
have resulted in the designation of certain areas as "clothing
optional", Bear Cove is such an area.  Secondly, we conclude
that the department has availed itself of the discretion granted
it by the legislature to make the clothing optional use of these
beaches conditioned upon the absence of citizen complaint to law
enforcement officers.  We also conclude that a reasonable
construction of this policy which is consistent with legislative
intent and the policies and practices established at the trial
is that a warning to discontinue nude activities cannot be
construed to be a ban "forever" of the future pursuit of nude
activities at the state park.  We find that the policy
contemplates that an individual may return to the same location
on a subsequent day after a complete cessation of nude
activities on request of an enforcement officer.
     This construction meets the two elements of due
process notice required by Burg and similar cases.  By reading

                             - 11 -


the long-applied policy as a conditional designation of clothing
optional beaches, the public receives fair notice that clothing
optional activities like "skinny dipping" are permitted only at
recognized locations within the state parks, unless a request
for cessation of such activities is made by an enforcement
officer upon public complaint.  Upon such warning, the activity
must stop for the day.  By prohibiting the activity for the
balance of the day, it is likely that the skinny dipper and
complaining party will not encounter one another again, thus
serving the purpose of the "Cahill policy" in a rational, easily
understandable way.
     This construction also fairly advises law enforcement
and prosecutors of how the law is to be enforced.  So long as
the 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 has occurred.  Further
activities of a person so warned are prohibited for the balance
of the day, but activities on later days are proscribed only if
preceded by a new public complaint and renewed warning.

                             - 12 -


     For these reasons, we conclude that the conduct which
Appellant engaged in on Sunday, August 11, 1985, was not in
violation of Section 4322 and that, accordingly, his conviction
must be reversed.

Dated: February 22, 1988

GILBERT, P.J.

I concur: [4]
COUZENS, J.

-----------------
4.  By stipulation of the parties at oral argument, this matter
was submitted to a two judge panel of the court.

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