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HomeMy WebLinkAboutSocial Host Ordinance - Ordinance 3972 - Amends Municipal Co R F PUBLICATION CITY Of HUNTINGTON STATE OF CALIFORNIA) UGkL NOTICE ORDINANCE 90.3971 SS Adopted by the City Council COUNTY OF ORANGE ) "AN on�ARCN DRDINAN CE OF OF . THE' CITY OF 'HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH 'MUNICIPAL CODE' Y I am a citizen of the United States and a AMENDING CHAPTER .8.42 RELATING TO LOUD resident of the County of Los Angeles; I PARTIES OR OTHER AC TIVITIES" am over the age of eighteen years, and SYNOPSIS: CIAL 'HOSTING not a party to or interested in the notice ORDINANCE" PROHIBITS published. I am a principal clerk of the LOWINGSOFG GATHER- MINORS HUNTINGTON BEACH A ES KNOWFINGLYY CON- SUMING- ALCOHOLIC _ 'INDEPENDENT, which was adjudged a - BEVERAGES. ,SEVERAL 'CALIFORNIA CITIES newspaper of general circulation on HAVE INTRODUCED A SIMILAR ORDINANCE IN September 29, 1961 , case A6214, and ORDER TO CURB GATH- ERINGSJune 11, 1963,. case ;A24831; for the WHERE EVENTS ERAGES ARE SERVED OR City of Huntington ,Beach, County of CONSUMED BY UNDER- AGE PERSONS. PART OF Orange,` and the State of California. THE "RATIONALE FOR THESE ES IS Attached to`this Affidavit is a true and REPORTSRDINAN THATC CON- SUMPTION OF ALCOHOL complete copy' as was printed and BY UNDERAGE„PERSONS IS A MAJOR PUBLIC,. published.on the:following date(s): HEALTH PROBLEM IN THE UNITED STATES: p� ,q THESE REGULATIONS Thursday, March 14 2013 ARE COMBINED WITH 99 5 THE CITY'S 'EXISTING "LOUD PARTY" ORDI- NANCE IN CHAPTER 8.42: AND NOW FINE "RE- SPONSIBLE PERSONS" I certify (or declare) under penalty AND"HOSTS"WHO PRO VIDE ALCOHOL BEVER- AGES TO' UNDERAGE of perjury that the foregoing is true PERSONS AT GATHER INGS OR EVENTS. PASSED AND ADOPTED and correct. by the,City Council of the City. of Huntington Beach; at a regular meeting held March 4, 2013 by the following roll call vote: Executed on March 20, 2013 AYES: Sullivhi , Boardman, Carchio, 'Shaw at Los Angeles, California ABOES:Had STAINrNoearper ABSENT:Katapodis THE FULL TEXT OF THE ORDINANCE IS AVAIL- ABLE IN, THE CITY CLERK'S OFFICE. This ordinance is effec` tive 30 days after_ adoption. CITY OF HUNTINGTON BEACH Signature 2000 MAIN STREET HUNTINGTON BEACH, CA 92648 714-536-5227 JOAN L.FLYNN,CITY CLERK Published H.B. Indepen- dent3/d4/13 fin✓ �r� i�� - ,?,/1�0 L171 fJ I ` Dept. ID CA 13-004-Page 1 of 2 Meeting Date:2/19/2013 0,00ovs; tom° '/jb CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 2/19/2013 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Jennifer McGrath, City Attorney PREPARED BY: Jennifer McGrath, City Attorney SUBJECT: Approve for introduction Ordinance No. 3972 amending the Huntington Beach Municipal Code by amending Chapter 8.42 relating to Loud Parties or Other Activities Statement of Issue: Based on direction from City Council, the City Attorney prepared a "Social Hosting Ordinance" that prohibits the hosting or allowing of gatherings at which minors are knowingly consuming alcoholic beverages. Several California cities have introduced similar ordinances in order to curb gatherings or events where alcoholic beverages are served or Consumed by underage persons. Part of the rationale for these ordinances is reports that consumption of alcohol by underage persons is a major public health problem in the United States. The proposed regulations will be combined with the City's existing "loud party" ordinance in Chapter 8.42 and now fine "responsible persons" and "hosts" who provide alcohol beverages to underage persons at gatherings or events. Financial Impact: Not applicable. Recommended Action: Approve for introduction Ordinance No. 3972, "An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Code by Amending Chapter 8.42 Relating to Loud Parties or Other Activities." Alternative Action(s): Do not approve An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Code by Amending Chapter 8.42 Relating to Loud Parties or Other Activities Analysis: Currently, the City of Huntington Beach Municipal Code Chapter 8.42 provides that the City may collect a fee for responding to loud parties hosted in the City. Several California cities have similar ordinances and have amended these ordinances to curb gatherings or events where alcoholic beverages are served or consumed by underage persons. The proposed amendment would provide a combination of state law"contributing to delinquency" prohibition and civil liability for"social hosting" into one law that will provide law enforcement additional tools to curb underage drinking. The key provision of the amendment is to make it unlawful and a public nuisance to host a party, at any private property at which any underage person is being served, is in possession of, or is consuming an alcoholic beverage, if the responsible person or host knows or reasonably should know that an underage person is being served, is in possession of, or is consuming an alcoholic beverage. There are certain exemptions to the prohibition for religious activities and the host taking reasonable steps to prevent underage drinking. In the event a host is found to be in violation of the ordinance, they will be issued a civil citation. Item 12. - 1 xB -278- Dept. ID CA 13-004-Page 2 of 2 Meeting Date:2/19/2013 Environmental Status: Not applicable. Strategic Plan Goal: Maintain public safety. Attachment(s): 1. Ordinance No. 3972, "An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal Code by Amending Chapter 8.42 Relating to Loud Parties or Other Activities." 2. Legislative Draft HB -279- Item 12. - 2 ATTACHMENT # 1 ORDINANCE NO. 3972 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE BY AMENDING CHAPTER 8.42 RELATING TO LOUD PARTIES OR OTHER ACTIVITIES WHEREAS, on February 7, 1994, the City Council adopted Ordinance 3229 to provide greater options for police officers for resolving loud parties and for the recovery of costs incurred for multiple police responses to loud parry calls through the issuance of administrative citations as well as Police Service Fees; and The occurrence of loud or unruly gatherings or events on private property where alcoholic beverages are served to or consumed by underage persons is harmful to the underage persons and a threat to public health, quiet enjoyment of private property and to the general welfare of residents; and The Centers for Disease Control has determined that the consumption of alcohol by underage persons is a major public health problem and that alcohol use is the most commonly accessed and abused drug among youth in the United States; and The City of Huntington Beach has a history of promoting and fostering a culture of health and recreation for children and youth; and The City Council desires to amend the City's existing loud parry regulations to hold liable responsible persons and hosts who provide alcohol beverages to underage persons at gatherings or events held on private property. NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 8.42.005 of the Huntington Beach Municipal Code is hereby added as follows: 8.42.005 Intent and Purpose. The intent of this chapter is to address inadequate supervision of parties and other types of events or gatherings of people on private property resulting in loud and/or unruly behavior that constitutes a threat to the peace, health, safety, and/or general welfare of the public. This chapter is also intended to address the problem of hosts of such gatherings who fail to ensure that alcoholic beverages are not served to,possessed by, or consumed by underage persons. Hosts of parties, gatherings or events will be more likely to properly supervise or stop the consumption of alcohol by minors if they are held responsible for enabling or tolerating such conduct. 12-3565/89532.doc 1 Ordinance No. 3972 SECTION 2. Section 8.42.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: 8.42.010 Definitions. The following words,phrases and terms as used in this chapter shall have the meaning as indicated below: (a) Alcohol means ethyl alcohol or hydrated oxide of ethyl from whatever source or by whatever process produced. (b) Alcoholic Beverage means alcohol, spirits; liquor, wine,beer, and every liquid or solid containing alcohol, spirit, wine, or beer, and which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances. (c) Host is the person who owns the property where the party, gathering or event takes place; the person in charge of the premises and/or the person who organized the event. If the host is a minor,then the parents or guardians of that minor will be jointly and severally liable for the fee incurred for police services. (d) Juvenile means any person less than eighteen(18) years of age. (e) Large party, gathering or event is a group of persons who have assembled or are assembling for a social occasion or for a social activity. (f) Parent or legal guardian means a person who is a natural parent, adoptive parent, foster parent or step-parent of another person, or a person who, under court order, is the guardian of another person, or a public or private agency with which a minor has been placed by the court. (g) Party, gathering or event means a group of persons who have assembled or are assembling at a residence or other private property, whether such residence or property is owned,leased, rented or used without compensation. (h) Police services fee is the cost to the City of any special security assignment. Such fee may be either a flat fee of$250.00 or an itemized fee based on, but not limited to, salaries of police officers while responding to or remaining at the party, gathering or event,the pro rata cost of equipment,the cost of repairing City equipment and property, the cost of any medical treatment of injured police officers. (i) Responsible person or host means any of the following: 1. Any person or entity that owns,rents, leases, or otherwise.has control of a residence or other private property, including without limitation a hotel/motel room or rented or leased area, where a party, gathering or event occurs. 2. Any person or entity present at a party, gathering, or event who provides an alcoholic beverage to anyone under the age of twenty-one (21) years. 3. Any person or entity present at a party, gathering or event where unruly or loud 12-3565/89532.doc 2 Ordinance No. 3972 conduct occurs and that receives money or other consideration for granting access to the party, gathering or event, or hosts, organizes, supervises, officiates, conducts or controls, or willingly accepts responsibility for such a party, gathering or event. 0) Special security assignment is the assignment of police officers, services and equipment during a second or subsequent response to the party, gathering or event after the distribution of a written notice to the host that a fee may be imposed for costs incurred by the City for any subsequent police response. (k) Underage person means any person less than twenty-one (21) years of age. (1) Unruly or loud conduct includes the obstruction of streets by crowds of vehicles, public drunkenness,public urination, service to, possession of or consumption of alcoholic beverages by an underage person, assaults, batteries or other disturbances of the peace including,but not limited to, vandalism,.littering or other conduct that constitutes a threat to public health, safety, or quiet enjoyment of residential property or public property. SECTION 3. Section 8.42.031 of the Huntington Beach Municipal Code is hereby added to read as follows: 8.42.031 Prohibition on parties, gatherings or events where alcohol is served to, consumed by or in the possession of an underage person. It is unlawful and a public nuisance for a responsible person or host to cause or allow a party, gathering or event to occur at any residence or other private property at which any underage person is being served, is in possession of, or is consuming an alcoholic beverage, if the responsible person or host knows or reasonably should know that an underage person is being served, is in possession of, or is consuming an alcoholic beverage. A responsible person or host need not have been issued a prior warning in order to be subject to the penalties for violation of this section. A responsible person or host shall be presumed to have knowledge that an underage person was being served, was in possession of, or was consuming an alcoholic beverage at a party, gathering or event if the responsible or host did not take all reasonable steps to prevent such activity from occurring. Reasonable steps include without limitation: controlling the access to and serving of alcoholic beverages to underage persons, and monitoring the responsible, safe and lawful conduct of underage persons. SECTION 4. Section 8.42.032 of the Huntington Beach Municipal Code is hereby added to read as follows: 8.42.032 Exempted activities. This chapter shall not apply to, nor be construed to apply to, any of the following: A. A responsible person or host who takes all reasonable steps, including, but not limited to requesting assistance of law enforcement, to exclude all uninvited persons at a gathering who provide, serve or facilitate the possession of consumption of alcohol by an underage person. B. Conduct protected under the United States and/or California Constitution, including but 12-3565/89532.doc 3 Ordinance No. 3972 not limited to religious activities protected by Article I, Section 4 of the California Constitution. C. Conduct regulated by state and/or federal law or regulation, including but not limited to the California Alcoholic Beverage Control Act, in such a manner that the City is preempted or precluded from imposing additional regulation. SECTION 5. Section 8.42.033 of the Huntington Beach Municipal Code is hereby added to read as follows: 8.42.033 Violations. A. For any responsible person or host who is a juvenile, each parent and/or legal guardian of the juvenile shall be considered a responsible person(s) liable for any fines, penalties and fees imposed pursuant to this chapter. B. Each separate violation of section 8.42.031 shall be subject to the issuance of a Civil Citation to each responsible person and host. Each separate violation shall, in addition to any police services fee that may be assessed pursuant to this chapter, be subject to the following administrative fines: 1. For a first violation, an administrative fine shall not exceed seven hundred fifty dollars ($750). 2. For a second violation within a 12-month period, an administrative fine shall not exceed one thousand five hundred dollars ($1,500). 3. For a third violation, or any subsequent violation thereafter, within a 12-month period, an administrative fine shall not exceed three thousand dollars ($3,000). SECTION 6. Section 8.42.040 of the Huntington Beach Municipal Code is hereby amended to read as follows: 8.42.040 Cost; Collection. The Chief of Police shall notify the City Treasurer in writing of the performance of a special security assignment and/or administrative fees imposed pursuant to this chapter, of the name and address of the responsible person or persons, the date and time of the incident, the services performed, the costs thereof and such other information as may be required. The City Treasurer shall thereafter cause appropriate billings to be made. SECTION 7. Section 8.42.050 of the Huntington Beach Municipal Code is hereby amended to read as follows: 8.42.050 Administrative Anneal. An administrative appeal of a police service fee and/or administrative fines imposed pursuant to this Chapter may be made to the Chief of Police or his designee within ten(10) business days from the date of mailing of the billing. The request for a hearing shall be in writing and addressed to the Chief of Police and shall include a copy of the billing and grounds for the appeal. 12-3565/89532.doc 4 Ordinance No. 3972 SECTION 8. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 4th day of March , 2013. A-w Ate Mayor ATTEST: PPROVED --A%.0-W AS TO FO � ,) City Clerk Ci Attorney REVIE D APPROVED: IN ED D APPROVE i Manager Ci Attorney 12-3565/89532.doc 5 Ord. No. 3972 STATE OF CALIFORNIA } COUNTY OF ORANGE ) SS: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a Regular meeting thereof held on February 19,2013, and was again read to said City Council at a Regular meeting thereof held on March 4,2013, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Sullivan, Boardman, Carchio, Shaw NOES: Hardy, Harper ABSENT: Katapodis ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,-do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on March 14,2013. In accordance with the City Charter of said City Joan L. Flynn, City Clerk Ci - Clerk and ex-officio 64erk Senior Deputy City Clerk of the City Council of the City of Huntington Beach, California ATTACHMENT #2 ORDINANCE NO. 3972 LEGISLATIVE DRAFT Chapter 8.42 USE OF POLICE SERVICES AT LOUD PARTIES OR OTHER ACTIVITIES (2956-9/88, 3229-3/94) Sections: 8ATOO5 Intent and Pumose 8.42.010 Definitions 8.42.020 Initial Police Responses to Large Parties, Gatherings or Events 8.42.030 Subsequent Police Responses to Large Parties, Gatherings or Events; Liability 8 42 031 Prohibition on parties gatherings or events where alcohol is served to, consumed by or in the possession of an underage person. 8.42.032 Exempted activities 8.42.040 Cost; Collection 8 42 005 Intent and Purpose The intent of this chapter is to address inadequate supervision of parties and other types of events or gatherings of people on private propertv resulting in loud and/or unruly behavior that constitutes a threat to the peace, health, safety, and/or general welfare of the public. This chapter is also intended to address the problem of hosts of such gatherings who fail to ensure that alcoholic beverages are not served to, possessed by, or consumed by underage persons. Hosts of parties, gatherings or events will be more likely to properly supervise or stop the consumption of alcohol by minors if they are held responsible for enabling or tolerating such conduct. 8.42.010 Definitions. The following words, phrases and terms as used in this chapter shall have the meaning as indicated below: (a) Alcohol means ethyl alcohol or hydrated oxide of ethyl from whatever source or by whatever process produced. (b) Alcoholic Beverage means alcohol, spirits, liquor,wine, beer and every liquid or solid containing alcohol spirit wine or beer, and which contains one-half of one percent or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted mixed or combined with other substances. (bc) Host is the person who owns the property where the party, gathering or event takes place; the person in charge of the premises and/or the.person who organized the event. If the host is a minor, then the parents or guardians of that minor will be jointly and severally liable for the fee incurred for police services. (2956-9/88) (d) Juvenile means any person less than eighteen(18) years of age. (ae) Large party, gathering or event is a group of persons who have assembled or are assembling for a social occasion or for a social activity. (2956-9/88) (f) Parent or legal guardian means a person who is a natural parent, adoptive parent, 12-3565/90583 1 foster parent or step-parent of another person, or a person who, under court order, is the guardian of another person, or a public or priv te agency with which a minor has been placed by the court. g) Party, gathering or event means a group of persons who have assembled or are assembling at a residence or other private property, whether such residence or property is owned, leased, rented or used without compensation. (elh) Police services fee is the cost to the City of any special security assignment. Such fee may be either a flat fee of$250.00 or an itemized fee based on, but not limited to, salaries of police officers while responding to or remaining at the party, gathering or event, the pro rata cost of equipment,the cost of repairing City equipment and property,the cost of any medical treatment of injured police officers. (2956-9188, 3229-3194) (i) Responsible person or host means any of the following: 1. Any person or entity that owns, rents, leases, or otherwise has control of a residence or other private property, including without limitation a hotel/motel room or rented or leased area, where a part gathering or event occurs. 2. Any person or entity present at a party, gathering, or event who provides an alcoholic beverage to anyone under the age of twenty-one (211 e 3. Any person or entity present at a party, gathering or event where unruly or loud conduct occurs and that receives money or other consideration for granting access to the party, gathering or event, or hosts organizes, supervises, officiates, conducts or controls, or willingly accepts responsibility for such a party, gathering or event. (dj)Special security assignment is the assignment of police officers, services and equipment during a second or subsequent response to the party, gathering or event after the distribution of a written notice to the host that a fee may be imposed for costs incurred by the City for any subsequent police response. (2956-9/88) (k) Underage person means any person less than twenty-one (21) years of age. (1) Unruly or loud conduct includes the obstruction of streets by crowds of vehicles, public drunkenness, public urination, service to, possession of or consumption of alcoholic beverages by an underage person assaults batteries or other disturbances of the peace including, but not limited to, vandalism, littering or other conduct that constitutes a threat to public health, safety. or quiet enjoyment of residential property or public property. 8.42.020 Initial Police Responses to Large Parties, Gatherings or Events. When any police officer responds to any large party, gathering or event, and that 12-3565/90583 2 police officer determines that there is a threat to the public peace, health, safety, or general welfare, the police officer shall issue a written notice to the host or hosts that a subsequent response to that same location or address within a thirty (30) day period, such response or responses shall be deemed a special security assignment rendered to provide security and order on behalf of the party, gathering or event and that the host may be liable for a police services fee as defined in this chapter. (2956-9/88, 3229-3/94) 8.42.030 Subsequent Police Responses to Large Parties, Gatherinjzs or Events; Liability. If after a written notice is issued pursuant to section 8.42.020, a subsequent police response or responses is necessary to the same location or address within a thirty (30) day period, such response or responses shall be deemed a special security assignment. Persons previously warned shall be j ointly and severally liable for a police services fee as defined in this chapter. (2956-9/88, 3229-3/94) The amount of such fee shall be a debt owed to the City by the person or persons warned, and if he or she is a minor, the debt shall be owed by his or her parents or guardians. In no event shall the fee be more than $1000.00. (2956-9/88) The City reserves its rights to seek reimbursement for actual costs exceeding $1000.00 through other legal remedies or procedures. (2956-9/88) The subsequent response may also result in the arrest and/or citation of violators of the state penal code or other regulations, ordinances or laws. (2956-9/88) 8.42.031 Prohibition on parties, gatherin$js or events where alcohol is served to, consumed by or in the possession of an underage person. It is unlawful and a public nuisance for a responsible person or host to cause or allow a party, gathering or event to occur at any residence or other private property at which any underage person is being served, is in possession of, or is consuming an alcoholic beverage, if the responsible person or host knows or reasonably should know that an underage person is being served, is in possession of, or is consuming an alcoholic beverage. A responsible person or host need not have been issued a prior warning in order to be subi ect to the penalties for violation of this section. A responsible person or host shall be presumed to have knowledge that an underage person was being served, was in possession of, or was consuming an alcoholic beverage at a party, gathering or event if the responsible or host did not take all reasonable steps to prevent such activity from occurring. Reasonable steps include without limitation: controlling the access to and serving of alcoholic beverages to underage persons, and monitoring the responsible, safe and lawful conduct of underage persons. 8 42 032 Exempted activities This chapter shall not apply to nor_ be construed to apply to, any of the following: A. A responsible person or host who takes all reasonable steps, including, but not limited to requesting assistance of law enforcement to exclude all uninvited persons at a gathering who provide. serve or facilitate the possession of consumption of alcohol by an underage person. 12-3565/90583 3 B. Conduct protected under the United States and/or California Constitution including but not limited to religious activities protected by Article I, Section 4 of the California Constitution. C. Conduct regulated by state and/or federal law or regulation. including but not limited to the California Alcoholic Beverage Control Act, in such a manner that the City is preempted or precluded from imposing additional regulation. 8.42.033 Violations. A. For any responsible person or host who is a juvenile, each parent and/or legal guardian of the juvenile shall be considered a responsible person(s) liable for any fines, penalties and fees imposed pursuant to this chapter. B. Each separate violation of section 8.42.031 shall be subject to the issuance of a Civil Citation to each responsible person and host. Each separate violation shall, in addition to anv police services fee that may be assessed pursuant to this chapter, be subject to the following administrative fines: 1 For a first violation an administrative fine shall not exceed seven hundred fifty dollars ($750). 2 For a second violation within a 12-month period an administrative fine shall not exceed one thousand five hundred dollars ($1,500). 3. For a third violation, or anv subsequent violation thereafter, within a 12-month period an administrative fine shall not exceed three thousand dollars ($3,0001. 8.42.040 Cost; Collection. The Chief of Police shall notify the City Treasurer in writing of the performance of a special security assignment and/or administrative fees imposed pursuant to this chapter, of the name and address of the responsible person or persons, the date and time of the incident, the services performed, the costs thereof and such other information as may be required. The City tTreasurer shall thereafter cause appropriate billings to be made. (2956-9/88) 8.42.050 Administrative Appeal. An administrative appeal of a police service fee and/or administrative fines imposed pursuant to this Chapter, may be made to the Chief of Police or his designee within ten (10) business days from the date of mailing of the billing. The request for a hearing shall be in writing and addressed to the Chief of Police and shall include a copy of the billing and grounds for the appeal. (3229-3/94) 12-3565/90583 4 Esparza, Patty From: Surf City Pipeline [noreply@user.govoutreach.com] Sent: Sunday, March 03, 2013 6:48 PM To: CITY COUNCIL; Agenda Alerts Subject: Surf City Pipeline: Comment on an Agenda Item (notification) Request# 13600 from the Government Outreach System has been assigned to Agenda Alerts. Request type: Comment Request area: City Council - Agenda& Public Hearing Comments Citizen name: Description: Suggest you visit website: socialhostlaw.com Expected Close Date: 03/04/2013 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not monitored and will be ignored. SUPPLEMENTAL COMMUNICATION Welling Clete: JI,-/ ai0/3 Agerds item No. /Q SUPPLEMENTAL ES arza, Pa COMMUNICATION From: Surf City Pipeline[noreply@user.govoutreach.com] Meefing Date: a Sent: Sunday, March 03, 2013 6:53 PM —AZ�QZ1.1 To: CITY COUNCIL; Agenda Alerts O Subject: Surf City Pipeline: Comment on an Agenda Item (noting )item No.�„ Request# 13601 from the Government Outreach System has been assigned to Agenda Alerts. Request type: Comment Request area: City Council - Agenda& Public Hearing Comments Citizen name: Description: STOP THE SHO: HB City Council should be wary of adopting "political trophy" laws like the proposed Social Host Ordinance Introduction: At the HB City Council meeting this Monday, March 4, there will be a final vote on Ordinance 3972. It is a so-called Social Host Ordinance that purports to "get tough" on teenage drinking by making adults accountable for enabling alcohol abuse by minors. SHO's are trendy nationwide because local law makers want to appear tough on teen drinking, even though there is scant evidence these measures reduce teen drinking or teen DUI's. More importantly, it doesn't hold adults more accountable. To the contrary the SHO's being promoted by a few passionate crusaders actually let irresponsible adults off the hook when compared to exisitng state law that already outlaws teen drinking. The HB SHO passed first reading on February 19 by a 5-2 vote, but it appears there had been no public hearings and council members who supported the SHO admitted the only input they had gotten was from fervent supporters. Supporters target local parents groups and urge them to lobby law-makers by pointing to SHO's adopted by other cities. But one OC city Mayor voted for a SHO on first reading based on the passion of a few supporters, but then read it and listened to witnesses and switched his vote on second reading. "We pass too many laws already without knowing enough. I am not convinced this is going to work, so I am not voting for it." Proposed HB SHO is bad law and bad policy: Ordinance 3972 would convert HB Municipal Health and Safety Code Chapter 8.42 from a simple and straight forward law requiring sponsors of loud and disorderly parties to pay for cost of police intervention into a convoluted social host law, modeled after but not consistent with the logic of similar laws enacted by some other cities. Provisions of proposed Ordinance 3972 create high risk of botched arrests, selective enforcement and liability for city and taxpayers. Several core features of Ordinance 3972 create problematic issues with regard to subjective enforcement criteria,privacy violations, liability for botched arrests, selective enforcement, intrusion into family i rights and parental responsibility, as well as infringement on due process rights: Section 8.42 010 defines the "host" or"responsible person" who is made subject to enforcement action by police in broad and ambiguous terms that can be applied to any adult who is-present and appears to police to be playing a prominent role in the gathering. Section 8.42.031 makes it a legal duty for any adult identified by police as a "host" or "responsible person" to prevent minors from drinking, even if the adult did not serve minors or know minors were in possession of alcohol or consuming it. Instead, if police conclude the adult "reasonably should know" that minors possessed or consumed alcohol the adult can be charged with unlawful conduct. This creates an anomalous legal standard that does not require police to have evidence of a specific objective act or even objective facts that establish knowledge and intent. Rather, the ordinance confers enforcement authority on police based on subjective opinions and judgments of uniformed officers who form impressions and make after-the-fact presumptions about what may have transpired. Section 8.42.031 provides for adults to be charged even without "prior warning" from police that teens may be drinking, and any adult is "presumed to have knowledge" if the adult "did not take all reasonable steps to prevent such activity from occurring." A "reasonableness" standard is highly subjective when there is no overt act that triggers enforcement, and "should have known" determinations by police are based on social and legal perceptions that are inherently relativistic and impressionistic. Section 8.42.031 provides that "Reasonable steps include without limitation: controlling access to and serving of alcoholic beverages to underage persons, and monitoring the responsible, safe and lawful conduct of underage persons." Creating a legal duty to prevent irresponsible, unsafe or unlawful conduct by minors as an abstraction creates vagueness and due process issues, instead of outlawing participation in or consent to specific acts by adults and minors. Section 8.42.032 exempts adults who "take all reasonable steps"to prevent teen drinking, including the summoning of police or actions intended to control the conduct of others and influence events to prevent teen drinking. But this is an inclusive rather than exclusive list of reasonable steps that adults have a duty to take, so police are enabled to deny the exemption if police determine other steps should have been taken. In addition, an adult attempting to control actions of others could be determined by police to be a "host" and "responsible party" under the provision of Section 8.42.010 that enables police to designate as an offender any adult who "willingly accepts responsibility" at a gathering. Section 8.42.033 provides that police can take enforcement action against the "parent and/or legal guardian" of"any responsible person or host who is a juvenile" violating the ordinance. Because the definition of"parent or legal guardian" in Section 8.42.010 does not require that the parent or guardian be present at the gathering, this derivative liability in absentia for teen drinking is a violation of due process rights. HB SHO will send mixed messages to teens and parents: 2 1. California state statutes and judicial rulings which District Attorneys and well-trained police know and understand based on decades of experience already make it a misdemeanor to endanger teens by serving alcohol to minors, and that includes doing so at social gatherings on private property. Police and prosecutors already have the tools and discretion needed to hold adults accountable if drinking is allowed and it puts kids at risk. See CA Criminal Code Section 272. In addition, CA Civil Code 1714(d)provides for civil liability in the case of adults who serve minors who then cause injury or death to themselves or others. CA Bus. & Profs. Code 25658 already makes it a misdemeanor to serve minors in public. 2. The proposed HB SHO actually reduces the penalty for adults who serve minors from misdemeanor to civil infraction, thereby making teen drinking safer for the adults and less safe for the kids. Giving the local police an ordinance that lowers the bar and liberalizes arrest powers at the same time it reduces the legal consequences of irresponsible and unlawful adult conduct is the opposite of what the Council should do if it wants to deter teen drinking. This merely creates a confusing legal policy which provides police and prosecutors in the District Attorney's office an excuse not to prosecute serious violations of CPC 272. It may feel good to appear tough on teen drinking but this ordinance sends a mixed message to adults and teens about the seriousness of adult actions making alcohol available to kids. Contrary to puffed up rhetoric about saving kids lives, once they have a chance to understand what the Council actually has done many adults and kids will view red uction of teen drinking offenses by social hosts to an infraction with fines or education classes as a softening rather than hardening of the law against serving minors at parties. 3. Based on the comments made about the proposed SHO there is basis for believing some or all of them have not read the document closely if at all. As noted below, in comments on the 2/19/13 Council debate, the Police Chief and City Attorney were not precisely responsive Council questions based on the actual content of the measure. The proposed ordinance was not available to the public at the 2/19/13 Council session, and none of the comments made by the Council members who supported the measure or city staff focused on the specific provisions identified above as problematic. These issues need to be openly discussed in a far more transparent proceeding in which the public becomes informed and has more than a three minute opportunity to discuss the SHO. 4. The model SHO being promoted by small advocacy networks based on the draft SHO developed by the national organization Mothers Against Drunk Driving. The MADD model SHO is not alcohol only, but includes all illegal substances. That is because making teen drinking subject to more aggressive enforcement than other drugs provides an incentive for irresponsible adults who want to party with teens to switch from alcohol to pot and other drugs. Yet, as some states legalize pot it is necessary to regulate its use in the same way alcohol is regulated, including new DUI laws based on blood content of the substance. In addition, former Congressman Patrick Kennedy has launched a national campaign opposing pot legalization based on new scientific proof of damage done to adolescent brains and social development by pot. In addition, deaths in automobile accidents involving pot DUI's are being reported in Washington State and Colorado. At the national level MADD understands the need for a SHO to cover all drugs, but in OC local MADD activists have decided the alcohol-only SHO is smart, even though there is no rational basis for limiting a SHO to any one substance abused by teens. 3 5. The HB City Council sponsor of the ordinance made statements that establish the lack of an open process. The only in-put the Council and city staff have received before committing the city - including the Chief of Police - to support this ordinance was in-put from its supporters. Was there a balanced and informed education process in which supporters and opponents were given an opportunity to discuss it? Were students who reportedly were "begging" for it given pro and con arguments by adults and peers with opinions on both sides of the issue? If not, why not? As it now stands, even if supporters rally for the March 4 second reading, the manner in which this has been brought forward has been prejudicial to informed and open public deliberation. 6. In other cities it has been discovered that school board, school district, City Council members and city staff strongly supporting the copycat SHO model had not actually read or had informed discussion of the ordinance before it was adopted as law. Again, that appears to be the case in HB as well. Why not have a public hearing, let people know that is being proposed? 7. The law does not provide any adequate provisions to ensure immunity for adults trying to take control at a social gathering, so that an adult who is present and becomes aware of teen drinking or who arrives at a party and attempts to stop teen drinking could in fact become subject to citation depending on the officer's subjective perception of the situation. Similarly, there is no adequate immunity for teens making 911 calls in the event of a medical emergency, and state law immunity provisions on 911 immunity are far too complex and ominously consequential for most adults much less teens to cope with in a crisis, including a three pronged test of eligibility for immunity that would require advice of counsel in most cases. Comments on SHO debate by Council 2/19/13: In response to question from Council about potential criminal as well as civil liability for landlords and other adults with any degree of control over property where teens drink, the City Attorney gave an explanation that was so incomplete that the Council was misled if it believed the question had been fully addressed. The real point he should have addressed in greater depth with respect to the language he read from the proposed ordinance is that its provisions do not prohibit the act of serving minors. It does not actually make it illegal for an adult to give alcohol to a minor. Rather, it includes serving to minors in the definition of a "host," but instead of limiting the outlawed conduct to a specific overt act committed knowingly and intentionally, Section 8.42.031 actually outlaws the gathering itself, but only if a minor takes a drink of alcohol. Thus, the Section 8.42.031 violation is being present at a gathering, and being perceived by police as a "host or responsible person," based only on alleged passive failure to act, alleged acts of omission rather than acts of commission. Police are given broad and intrusive enforcement authority based on what police speculate the person accused of a violation "should have known." This outlaws a gathering that one moment is legal and the next moment is not based not on a specific act of the adult accused of a violation but the act of any minor present if police identify any adult who "should have" taken what police regard as "reasonable steps" to prevent the minor from taking that act. This retroactivity feature (sort of like "ex post facto lite") makes the general non-specific act of hosting a gathering that is legal unlawful due to an act the "should have" been prevented. This raises not only 4th Amendment due process issues but also 1 st 4 Amendment freedom of association issues. Yet, Section 8.42.050 gives the police expansive enforcement authority and limits appeals to the Chief of Police. Thus, complex constitutional issues of individual rights implicated in the ordinance are entrusted exclusively to the police who are charged with enforcement and adjudication of alleged violations. The import of that provision is profound. First, it means the Chief of Police and at least one or two of the Council members who spoke in favor of the ordinance were dead wrong when they said the ordinance is "more specific" than existing state law. To the contrary, this ordinance is far more vague than the applicable provisions of the California Criminal Code and Business & Professions Code provisions because it is not triggered by the specific act of serving alcohol to a minor. Rather, it converts a gathering that is legal into an illegal gathering after-the-fact if one police officer decides an adult he deems to be in control to have known or who reasonably should have known minors had possession of alcohol. Indeed, the ordinance requires that any such adult take "reasonable steps" to discover and prevent alcohol use by minors on property over which they have control. That gives the officer expansive powers to issue a citation to any adult present or who allowed the gathering if the officer decides the adult was not sufficiently conscientious or vigilant. That is a very subjective standard, and the idea that police want or need that kind of discretion in a social conduct criminal law context is an exercise in social experimentation for which cops are not trained. This law does not outlaw an inherently criminal act. It outlaws an event and failure of any adult present to know what a cop decides they should know about what transpired at that event. In that context, it is not implausible that a landlord or parent or other adult social invitee who was present at a gathering and left or who arrives at a gathering and is present when police arrive could be charged. Any adult present, especially an owner, could be identified as an adult with sufficient control to be held responsible for the gathering that may have been legal but retroactively is declared illegal. The statute may define the adult in control more specifically, but as Councilwoman Hardy noted, it is not hard to imagine scenarios where this sloppy ordinance will be applied in a highly subjective and even selective manner at the whim of an officer who should be enforcing state law instead of an untested ad hoc municipal criminal law. If there are high profile cases arising under this statute, including lawsuits against HB for botched arrests,possibly including landlords, all of that might affect investors and landlords who have a choice between HB and neighboring towns without a SHO. The impact on property values may be indirect, but the image of HB as a place where teen drinking puts adults at greater risk of criminal liability under ambiguous laws is not an issue to be dismissed lightly. Contrary to what the Police Chief told the Council, the state law against contributing to the delinquency of a minor is not vague or difficult for police to apply. Police and prosecutors have years of experience with enforcement and prosecution of adults who let drinking occur in their presence which results in a drunken and disorderly condition, or which impairs a minor and encourages or enables abuse of alcohol. In that context,the Police Chief s testimony was particularly disturbing in that he indicated the police need "another tool" because state law makes serving to a minor a misdemeanor, while this ordinance allows police to treat adult conduct that allows teens to drink as an infraction. 5 This constitutes cognitive disconnect with the statements of the Police Chief and the sponsor of the ordinance. While the stated purpose is to give police "an additional tool" to "keep kids safe" in reality what this does is lower the penalty for adults who host gathering and are proven to "know or should have known" kids were drinking. How does this additional tool deter teen drinking? If anything, it dumbs down the enforcement standard so that instead of outlawing a specific act of serving minors or allowing minors to drink and thereby contributing to delinquency it outlaws events that adults may or may not be able to control or of which they do not have knowledge. But if it is proven they had knowledge or should have had it, then they face a reduced level of punishment. So the local law has the effect of being more lenient then state law. Supporters will defend the reduction of violations from misdemeanors to infractions by arguing it gives police additional enforcement options. The reality is that it reduces consequences of an arrest for violators and police who do not have to justify their enforcement practices under stricter state law standards. That reduced accountability for enforcement practices supervised and acted upon by city rather than county or state officials invites selective enforcement and undue local political influence. As a consequence, prominent citizens hosting gatherings will be less likely to be arrested or cited, while parents without influence will be penalized to satisfy those clamoring for this new law giving local officials an "additional tool" to make an example of adults they deem irresponsible. Finally, the testimony of supporters confirmed precisely what has been heard in every OC town that has adopted a SHO. Supporters describe meetings in which parents who have lost children to alcohol and drug abuse, perhaps in a car accident. There were references to four teen deaths, without indicating whether alcohol was involved, but one would assume from remarks made that was the case. It also is argued that alcohol is the real problem, not other drugs. It even is stated that other drugs do not need to be included because when other drugs are present it is easy to detect. This emotionalism is understandable, all parents who have raised children in OC know the challenges faced by parents. But these arguments are anecdotal at best. There is no statistical evidence that cities that adopt SHO's reduce drunken driving by teens or deaths. And the fact is that alcohol is the easiest abused substance to detect both because. of its volume and the manner in which it is consumed as well, as the effect it has on the appearance and outward behavior of minors who are under the influence of liquor, makes an alcohol only SHO seem logical. Pot, coke, acid, ecstasy,prescription pain medication and other mood altering prescription drugs are harder to detect, especially at a party, with the result that police require more rather than less training and skills to prevent adults from getting away with supplying drugs to minors. But the people involved in this problem who will benefit most from an alcohol only SHO are the adults and minors who traffic in n on-alcoholic illegal substances. All concerned are saddened to hear it when kids die in any community, but that does not address the issue of whether this ordinance will deter teen drinking. It is more likely to be symbolic for those impacted by teen drinking but lull most people into complacency. That may make some people feel good while actually lowering awareness of parental and teen rights and responsibilities to take care of their kids themselves and their friends and keep each other safe. The police can't do that, police are not nannies or a substitute for parents, schools, the community in managing these problems. Adults who refuse to support safe kids programs and practices should be subject to misdemeanor penalties, 6 not infractions. That is why the state legislature has not enacted a state SHO, even though the state PTA supports such legislation. The pervasive use of arguments employing the very same phrases heard in other cities is ominous. "This ordinance will give police an additional tool to address teen drinking." "How can anyone oppose a way to keep our kids safe?" "The state law is vague and unclear, hard to enforce, this ordinance is more specific." These carefully scripted arguments are repeated over and over,just as we have seen in other cities. Many cities have rejected the SHO, but those which have adopted it city council members who are persuaded to support the model ordinance have ordered the city staff to draft a SHO based on generic documents provided by its supporters. In each case passionate arguments of supporters are heard, including the same phrases about "an additional tool," "keeping kids safe," and we need something "more specific" than state law. These are the tell-tale signs of indoctrination,a case of enough people embracing the symbolism of a political trophy as if that were more important than the substance of the proposed law. * Howard Hills was born and raised in OC, and is a third generation OC resident. He and his wife Lura, shown in his profile photo, and five kids and six grandchildren. He formerly served as a legal advisor in the National Security Council and the U.S. Department of State, but he has been involved in public policy issues in OC since 1967, and in civil rights and constitutional aspects of local, state and federal policy since 1977. All views expressed are private and personal opinions of the writer, and do not express the views of any other person or organization. Expected Close Date: 03/04/2013 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not monitored and will be ignored.