Success Story:
Kansas House Bill 2726 (2000)

The Naturist Action Committee is often seen defending the nude use of public lands, but NAC also moves its grass roots organization into action when nudist resorts are threatened. 

As the Kansas legislative session opened in 2000, State Representative Cindy Hermes (R-Topeka) introduced a bill that fired a direct shot at nudist camps, parks and resorts in Kansas by declaring them to be "nuisances" if they operate within five miles of a residential area. The proposed law included stiff fines and jail time for those who operate nudist facilities. NAC's successful response stopped the bill in its tracks and may be viewed as an example of grass roots Naturist activism at its very best.

History and Background

Hermes' legislation was designated as House Bill 2726, and it was aimed at applying a statewide statutory solution to what has been a local zoning issue involving Lake Edun, a 60 acre Naturist site located on the southwest outskirts of Topeka. Although the rural property used by the nonprofit  Lake Edun Foundation has been the site of nude activities continuously since 1983, nearby property owners became aware of its use only in recent years. A 1996 article by Darla McFarland, writing in The Pitch, a Kansas City weekly alternative newspaper, helped alert the sparsely settled neighbors of Lake Edun to the nudity behind the barbed wire fences and the trees. The newspaper article was generally positive in its view of Naturism, but the response from the neighbors was not.

Rep. Cindy Hermes. "My highest priority is to do what my constituents want me to do."

Encouraged by a tiny handful of neighbors, the Shawnee County board  of zoning appeals ruled in 1998 that Lake Edun violated county land-use rules. Landowners Webb and Julie Garlinghouse, from whom the Lake Eden Foundation leases the property,  responded by filing a lawsuit in Shawnee County District Court, appealing the decision.

According to the lawsuit brought by the  Garlinghouses, Lake Edun does not violate the established standards of use. In late 1999, the court ruled against that assertion. But even if Lake Edun is ultimately found to violate the present rules, say the Garlinghouses, it should be allowed to continue operation under the clear provisions of a grandfather clause in the county zoning rules.

A small group of the anti-nudist neighbors is seeking to intervene in the lawsuit. Those locals, led by Larry Engler, who lives two miles from Lake Edun, are the same people who instigated the local zoning action and they are the same folks who persuaded Rep. Hermes to file the bill in the Kansas legislature.

Lake Edun neighbor and detractor Larry Engler testified in favor of HB 2726 at a hearing on February 10, 2000, before the House Committee on Local Government..

House Bill 2726

The bill introduced by Rep. Hermes not only proposed to have nudist camps declared to be nuisances, it also established jail time and fines of as much as $25,000 for owners and managers of nudist camps, and for anyone renting or leasing facilities to others for nude use. Because of the bill's broad wording, owners of fitness or sports facilities with changing areas were at risk, too.

As defined in the bill,

  • "'nudism' means the act of a person or  persons congregating or gathering in the presence of one or more persons with such person's or persons' genitals exposed as a form of social practice."

Nor did the proposed law stop with nudist camps and locker rooms. It additionally condemned, as a common nuisance, performance art incorporating nudity.

  • "The conducting, maintaining, participating in, carrying on or engaging in the operation, while in the nude, of any musical or theatrical performance..."

William Rich, a law professor at Washburn University in Topeka, was among those who quickly recognized the effect of the poorly written legislation. As reported by the Topeka Capital-Journal, Rich said, "As written, it seems to me there are really serious constitutional problems."

Rich also pointed out a feature of the bill that had certainly caught NAC's attention. The measure was so broadly worded that with the exception of married couples, it would have effectively prohibited anyone from appearing nude in the presence of anyone else, whether it be in a nudist camp or not.

Speaking of the bill, Professor Rich was quoted as saying, "It attempts to regulate activity that should be beyond the scope of governmental regulation. In that context, it really represents an invasion of privacy."

When it comes to drafting legislation, Cindy Hermes, it can be argued, could have found some help close to home. Even though the 45 year old community volunteer is a first-term legislator, she is married to 35 year old wunderkind Dan Hermes, the director of governmental relations for Kansas Governor Bill Graves. Dan Hermes is a former principal analyst in the state's Budget Division. In his current position, he is described as the "point man" for much of the legislation proposed by the governor's office.

Law Professor William Rich of Washburn University in Topeka assessed HB 2726 as representing an "invasion of privacy" and having "serious constitutional problems."

On February 2, 2000, NAC issued an Action Alert asking Kansas Residents to write to members of the House Local Government Committee, to which HB 2726 had been assigned. As letters and phone calls from Naturists began to come in, Kansas lawmakers weighed in on the issue.

"Basically," said House Minority Leader Jim Garner (D-Coffeyville), it's like trying to make the legislature the zoning and planning board for Shawnee County. It's a local issue."

In a strange series of attempts to silence her critics, Rep. Hermes tried a number of tactics in a rather rapid sequence.

  • First, she made outrageous assertions about the activities at Lake Edun, claiming that during gatherings at the Naturist site, it isn't unusual to see nude people strolling through adjacent residential areas.

    "People are sunbathing nude by the side of the road," she exclaimed.
     
  • Next, Rep. Hermes admitted that her bill was poorly written but said she hoped to have it amended in the committee process.
     
  • Then she said the she hadn't really written the bill herself, although she refused to name the ghost writer.
     
  • Finally, Cindy Hermes said she was just doing what she had been asked to do. "My highest priority," she said, "is to do what my constituents want me to do. They started calling me before I was even elected."

Ironically, what close to half of Rep. Hermes' constituents apparently wanted at election time was for her to stay home. Of those in her district who voted in the general election of November, 1998, 49.22% cast their ballots for her Democratic or Libertarian opponents.

When she was contacted directly by Webb Garlinghouse of Lake Edun, Rep. Hermes admitted she hadn't realized that Larry Engler lives over two miles from the Naturist camp. She also confessed not knowing that Engler had refused multiple offers to attempt a negotiated solution through discussions with Garlinghouse. After a chagrined Rep. Hermes repeated that she was just introducing legislation on behalf of a constituent, she offered to do the same for Garlinghouse. Hermes suggested that perhaps she could introduce a bill exempting nudist camps from local zoning ordinances. An astonished Garlinghouse assessed the offer but ultimately declined it.

Even as Rep. Hermes tried to distance herself from her own bill, the measure was being scheduled for a hearing in the House Committee on Local Government. Hermes is a member of that committee and had initiated the bill in the name of the committee. Even if she had wished to do so, it had become impossible by that point for her to withdraw the bill.

Naturists prepare for a confrontation

Kansas House Democrats were grumbling that Rep. Hermes' bill was a statewide solution to a local issue, but the Republican majority had been alarmingly quiet. The concern among Naturists was that Rep. Hermes' bill might find support and a new champion among her more conservative colleagues. Cindy Hermes herself seemed to have lost interest in the bill, but she had established herself as being dangerously unpredictable.

It was clear to the Naturist Action Committee that HB 2726 would have to be stopped cold in the Local Government Committee. Conferring with NAC board member Charles Harris and NAC Chairman Bob Morton, NAC's two Area Representatives, Dave Bitters and Mike Jan, began preparing their presentations for the committee hearing on Thursday, February 10, 2000.

Through numerous phones calls and e-mails, the prepared remarks of NACARs Bitters and Jan were exchanged, fine tuned and coordinated with those of Lake Edun property owner Webb Garlinghouse and Mike Jan's wife Susan Jan, who also testified. The group was careful to avoid redundancy. Garlinghouse would present the facts of Lake Edun and the local dispute, Bitters would assure that the committee understood who Naturists are and what they represent. Susan Jan would present a woman's point of view of Naturism, and Mike Jan would hammer home the point that this is a local issue.

On the morning of the House Committee meeting, NAC Area Rep Dave Bitters e-mailed the following message to fellow Naturists involved in the effort to stop HB 2726.

    "All in all, it should be a very interesting
    afternoon. No one can claim that the Kansas
    Legislature isn't entertaining.

The hearing

Webb Garlinghouse, who, with his wife Julie, owns the Shawnee County land leased by the nonprofit Lake Edun Foundation.

The hearing of the House Local Government Committee was called to order to a packed house. The tiny hearing room would have been a bit cozy for the seven Democrats and ten Republicans of the committee, but it had to accommodate camera crews and reporters, as well as those who wished to testify and partisan observers both for and against the bill.

In the absence of Committee Chair Carlos Mayans (R-Wichita), Vice Chair Kay O'Connor (R-Olathe) chaired the hearing. Although it's customary to hear opening remarks from the sponsor of the bill, those were skipped. Rep. Hermes, a member of the committee, sat silently throughout the entire proceeding.

Citizens had signed up in advance to speak, and Rep. O'Connor asked for the bill's supporters to come forward first. A total of three speakers, including angry neighbor Larry Engler, spoke from the witness podium. One woman spoke of loud music coming from the camp, while another gave a hearsay account of her daughter's being stalked, while she was jogging, by a naked man on a road near Lake Edun.

In a cramped hearing room overflowing with lawmakers, citizens and reporters, Committee Vice Chair Rep. Kay O'Connor conducted the House Local Government Committee hearing for HB 2726 on February 10, 2000.

A total of eight citizens spoke against HB 2726, including the NAC contingent. Because of the unexpected number of witnesses, a time limit was imposed on each witness, forcing some of the material to be trimmed from each presentation.

Lake Edun's Webb Garlinghouse was quickly able to refute or explain some of the "suspicious" activities that had been attributed to the camp by witnesses who supported the anti-nudity bill. For example, one witness had spoken of a mysterious vehicle that cruises slowly and regularly up and down the road that runs past Lake Edun, stopping at the furthest extent of the property before turning around and driving back slowly, ultimately disappearing into the camp through its gate.

Sinister? It turns out that's Garlinghouse, doing his regular check of the fences around the property.

It also became clear from the testimony of Garlinghouse that Lake Edun had been a clothing-optional haven long before the arrival of many of those who were complaining that its presence was ruining property values in the area.

Webb Garlinghouse set the record straight for the committee with the facts of Lake Edun and its existence as a clothing-optional site since 1983.

Lawmakers on the committee asked questions of many of the witnesses. The woman who claimed her jogging daughter had been stalked by a naked man also told the committee that the sheriff had failed to follow up on the complaint.

Rep. Sue Storm (D-Overland Park) refused to blame Lake Edun. "That sounds like a failure of law enforcement," she said.

Rep. David Huff (R-Lexana) understood the inappropriateness of placing this local issue before the state legislative body.

"Have you folks went to the local authorities in the Topeka area on this?" Huff asked with a sidelong glance at Rep. Hermes. "Why is this coming to state government?"

Rep. David Huff (R-Lexana). "I'm a Representative from Lexana, Kansas. Now that I know I have a nudist in my district, I'm gonna go down and see if he's a registered voter."

Not everything went completely smoothly during testimony from the bill's opponents. One unanticipated problem arose when a speaker from the Midwest Sunbathing Association testified.

"One other thing that I think needs to be brought out," the MSA representative said, " is that we have four different nudist clubs in Kansas. Three of those clubs are part of the American Association for Nude Recreation, a national organization which has national rules and regulations that those clubs must follow. Lake Edun is not one of those clubs."

Though presumably unintentional, the careless remark fueled immediate and predictable questions about standards of behavior at Lake Edun. With raised eyebrows, lawmakers on the committee asked Garlinghouse why Lake Edun is not a part of AANR. They wanted to know if he had ever considered an affiliation with AANR.

Lake Edun is, of course, a member in good standing of The Naturist Society's Network of affiliated clubs, camps and organizations, a fact that Garlinghouse pointed out. NAC Area Rep Dave Bitters elaborated on TNS and its standards, and without denigrating MSA or AANR, was able to seize an awkward situation and turn it into a positive declaration of Naturist values.

NAC Area Representative David Bitters of Shawnee Mission, Kansas, displays a copy of Lee Baxandall's World Guide to Nude Beaches & Resorts, as he testifies against HB 2726. In the background at the right is Jawn Bauer of the MSA, who also testified at the hearing.

Gloria Rhodes and Pam Bybee, both of Prairie Haven, spoke against the bill. MSA counsel Jawn Bauer also addressed the committee and did an excellent job of making the point that HB 2726 was fraught with problems and would simply make very bad law.

The hearing had its lighter moments, too. Rep Donald Dahl (R-Hillsboro), a persistent questioner, had listened intently as NAC's Bitters had explained the freedom and virtue of the clothes-free experience.

"Do you think there's such a thing as common decency?" Rep. Dahl asked.

Bitters responded to the trick question with appropriate caution. "I would ask you first for your definition of decency. Naturists believe that they are, for the most part, quite decent. Now, if your definition of decency means the wearing of clothes, then you and I will differ."

Finally, Dahl asked Bitters pointedly, "Why are you not naked in front of us right now?"

Rep. Donald Dahl (R-Hillsboro). "Why are you not naked in front of us right now?"

"Because," responded Bitters immediately, "this is an inappropriate setting for nakedness, and I know that if I were to show up here in the nude, you would pass that bill without question. There is evidence that it's not a good tactic."

The retort brought down the house, quickly put an end to that line of questioning and did much to establish the utter reasonableness of Naturists.

Despite Susan Jan's  initial nervousness, it was obvious to all in the room that she felt strongly about the topic she was addressing.

"Being a nudist," she told the packed room, "has given me the confidence to be here and speak in a situation I normally would have avoided."

NAC Area Rep Mike Jan reminded the lawmakers that legislation was an inappropriate solution. In asking that HB 2726 be stopped, he said, "The most obvious reason is that this bill forces the state to take sides in a local dispute."

NAC Area Rep Mike Jan (right) waits his turn to testify, while his wife Susan Jan addresses the House Local Government Committee.

The impact of the appearance by the Naturist witnesses and their cohorts was felt immediately. Rep. Kay O'Connor, the lawmaker who had chaired the hearing, said that the bill would likely die in committee.

Other legislators agreed. Committee member Melany Barnes (D-Wichita) said, "HB 2726 had a colorful hearing but will not be worked by the committee and is dead in the house of origin. I agreed it is a local issue."

So Kansas was saved from a terrible state law. But what of Lake Edun? Webb Garlinghouse assessed the situation just days after the legislative hearing.

"This is good news on the State scene," Garlinghouse said. "However, let's not forget that we are still headed for a trial in the county.

"After our last meeting in the courtroom, we entered into an agreement with the county and they agreed we could continue to operate as long as we did not 'charge,' but a donation was acceptable. Now, they are backing away from that position and are trying to claim we are running a recreation facility which is counter to the zoning.

"It appears this is going to be a protracted and expensive legal battle," Garlinghouse concluded.

Having won a significant battle, Naturists in Kansas realize they must remain vigilant and focused. As NAC Area Representative David Bitters told the Kansas lawmakers in the hearing:

 "Government has no business setting dress codes. Period."

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