East Palo Alto Municipal Code Ch. 9.02 Unreasonable Noise and Unruly Gatherings

A. The procedures set forth in this chapter for summary abatement of nuisances and for making the costs of such abatement a special assessment against the parcel on which the nuisance existed are or have been adopted pursuant to the authority of Sections 38771 through 38773.5 of the California Government Code and Article 11, Section 7 of the California Constitution.

B. The procedures set forth in this chapter are not exclusive and are in addition to the procedures for abatement which are conferred upon the city by California Civil Code Section 3494, California Code of Civil Procedure Section 731, and any other applicable provision of law, as codified in Chapter 8.08 (Nuisances) of the East Palo Alto Municipal Code.

C. The purpose of this chapter is to identify activities which constitute a public nuisance relating to unreasonable noise or unruly gatherings, to provide for the summary abatement of such nuisances at the expense of persons creating, causing, committing or maintaining it, and to promote peace, health, safety and the general welfare of the public by minimizing the frequency of return calls to loud and disturbing parties, gatherings, events or assemblages at various locations within the city.

(Ord. No. 386, § 1, 2-17-2015)

A. "Host or hostess" means any person conducting or otherwise permitting a party, including:

1. Owner(s), lessee(s), sublessee(s), of or any occupant with a right to use or enjoy the property where a party is taking place;

2. Person(s) hosting a party;

3. Person(s) receiving money or other consideration for granting access to a party;

4. Person(s) serving, furnishing or making available alcoholic beverages;

5. Parent(s) or legal guardian(s) of host or hostess who is minor.

B. "Party" means a gathering, event or assemblage of a group of persons who have assembled or are assembling for a social occasion or for a social activity on private residential and/or commercial property including, but not limited to, residential dwelling units, saloons, bars, nightclubs, pool halls, restaurants, theaters or amphitheaters.

C. "Person" means any individual and includes a corporation, partnership, company, association, organization or league, and any other entity which owns, leases or controls real property where the party takes place. The term "person" includes an individual or entity responsible for the party.

D. "Person responsible for the event" means the person who owns the property where the party takes place, the person in charge of the premises and/or the person who organized the event. If the person responsible for the event is a minor, then the parent(s) or legal guardian(s) of the minor will be jointly and severally liable for the costs incurred for the police services.

E. "Police chief" means the Chief of Police of the East Palo Alto Police Department (hereinafter "police department") or his or her designee(s).

F. "Police services" include, but is not limited to, the salaries of the police officers, or other public safety personnel, for the amount of time actually spent responding to or remaining at the party as well as all costs reasonably expended for use and cost of equipment incurred in responding to a call for service, at a rate established by resolution of the city council; the actual costs of any medical treatment to injured officers or other safety personnel; and the cost of repairing any damaged city equipment or property.

G. "Public nuisance" means behavior constituting a violation of the provisions of: (1) Chapter 11 of Title 7 of the California Penal Code; and (2) Sections 407, 415 or 370 of the California Penal Code; and (3) Section 8.08.020.K of the East Palo Alto Municipal Code; or (4) noise that is unreasonably loud, raucous, excessive or jarring to persons within the area of audibility in a residential area which disturbs the peace or quiet of any neighborhood.

H. "Residence" means a structure providing independent living facilities for one or more persons including permanent provisions for living, sleeping, eating, cooking and sanitation.

I. "Residential area" means any area which is within three hundred (300) feet of any single-family or multifamily residence, other than commercial hotels, motels and similar establishments for temporary lodging, measured by a straight line between the closest structure wall between the residence and the location of the behavior described in subsection G of this section.

J. "Special security assignment" means the assignment of police officers in response to a return or second call to the same location after the distribution of a written warning that a party violates the law.

(Ord. No. 386, § 1, 2-17-2015)

The following acts or conditions are exempt from the provisions of this chapter:

A. Activities conducted on the grounds of any public or private nursery, elementary, intermediate or secondary school;

B. Outdoor gatherings, public dances and shows, which meet or exceed all security requirements which may be set forth as a condition for the issuance of a valid permit; provided, said events are conducted pursuant to a permit issued by the City of East Palo Alto pursuant to Title 5 of the East Palo Municipal Code;

C. Any activity or noise for which a variance or permit has been granted pursuant to the Zoning Ordinance of the City of East Palo Alto;

D. Any activity to the extent regulation thereof has been preempted by state or federal law.

(Ord. No. 386, § 1, 2-17-2015)

It is declared that loud, and/or unreasonable noise and/or unruly gatherings that is sufficiently loud and unreasonable in volume level, duration and character to maliciously and willfully disturb or create a threat to the comfort, health, peace, safety, welfare or repose of reasonable person(s) of ordinary sensibilities to constitute a public nuisance. No person, firm, corporation, association or other legal entity owning, leasing, renting or occupying real property in the city shall create, cause, commit, maintain or permit such a public nuisance to occur on such property. Continuation of an activity prohibited by this section after written notification by a peace officer that the activity is disturbing the peace shall be prima facie evidence of malicious and willful intent. Written notification provided pursuant to Section 9.02.050 of this chapter shall not constitute a notice to cease or otherwise satisfy a landlord's obligation to provide such notice under Section 16(A) of the Rent Stabilization and Just Cause for Eviction Ordinance of 2010.

(Ord. No. 386, § 1, 2-17-2015)

When a police officer at the scene determines that there is a loud, unreasonable noise or unruly gathering, the police officer shall provide written notification to the owner of the premises, the tenants of the premises, the person in lawful custody of the premises, or the person responsible for committing, creating, causing, or maintaining the gathering, that the gathering constitutes a public nuisance and that such person shall be held jointly and severally liable for the costs incurred for providing police personnel for a subsequent response to the same premises due to a public nuisance as defined in Section 9.02.040 of this chapter that occurs more than once during a one hundred twenty-day period, including a second response during the same day or night as the first response.

A. The first response and warning shall be deemed to be normal police service. On the first response to a disturbance, the East Palo Alto Police Department shall determine whether the disturbance constitutes a public nuisance as defined in this chapter and if said public nuisance constitutes an immediate threat to the public peace, health, safety or general welfare.

B. If officers determine that the disturbance constitutes as immediate threat to public health or safety, the officers, as an alternative to immediate arrest of the persons responsible for the public nuisance, may proceed as set forth in this subsection.

1. The officers shall advise the persons responsible for committing, creating, causing, maintaining or permitting the disturbance, the occupant of the property where the disturbance is located, if such individual is present, and/or the owner of the property if present that: (1) the disturbance constitutes a public nuisance and violates this section; (2) unless they voluntarily stop the disturbance, the officers will take appropriate action to stop it, including, but not limited to, arrest or citation of those violating the law; and (3) if the police department is required to expend additional staffing and/or use equipment after the first response to stop the subsequent disturbance, the owner and the occupant of the property shall be held jointly and severally liable for the costs incurred.

2. When police department personnel respond to a complaint involving a disturbance caused by a party, the responding officers shall issue a written notice to the host/hostess if such person(s) are available on the premises. The notice shall be read and signed by the available host/hostess acknowledging receipt of the warning, and a signed copy of the warning shall be left with the available host/hostess.

3. If no owner or adult person in charge of the premises can be identified at the time of the first response or is not available, the written notice required may be posted in any conspicuous, visible outdoor location near any entrance to the premises.

4. If the host/hostess and/or person(s) responsible for the event refuse to sign receipt of the notice, officers shall write the words "refused to sign" on the signature line. The host/hostess and/or person(s) responsible for the event shall be provided with a copy of the notice. Another copy of the notice shall be posted in a conspicuous, visible outdoor located near any entrance to the premises on each occasion the police respond.

5. If the location of the disturbance is a public building, then the responsible person for the purposes of this chapter will be the lessee or occupant of the building.

(Ord. No. 386, § 1, 2-17-2015)

The first response and warning shall be deemed to be normal police service. Personnel utilized on a subsequent response shall be deemed to be on special assignment. The costs incurred from such special assignment are declared to be beyond normal services provided by the police department.

(Ord. No. 386, § 1, 2-17-2015)

The costs incurred by the police department for a subsequent response of a loud, unreasonable noise or unruly gathering shall be a debt or personal obligation of the person or person responsible for the event who created, caused, committed, maintained or engaged in the activity requiring a response. If any person responsible for, or engaged in, such activities is a minor, the minor's parents or guardians shall be liable for costs.

(Ord. No. 386, § 1, 2-17-2015)

The costs of such special assignment include all personnel and equipment costs, and administrative overhead costs. The police department will determine the reasonable cost of such special assignment, which shall not exceed one thousand dollars ($1,000.00) for each subsequent response. Any damage to city property and any injuries to city personnel may be recovered separately. The remedy provided by this chapter shall be in addition to any other remedy provided by law, and shall not be construed to limit or replace any other remedies, civil or criminal, which may be available.

(Ord. No. 386, § 1, 2-17-2015)

The costs of such a special assignment shall be a debt or personal obligation of the persons deemed liable under Sections 9.02.050 through 9.02.070 for such costs. In addition, the costs of such special assignment may be made into a lien or special assessment against the property on which the nuisance was maintained and shall be a personal obligation against a property owner as follows: (1) said owner resides on or adjacent to the premises; (2) said owner was present when the written notification described in Section 9.02.050 of this chapter was first posted; or (3) such written notification was mailed to said owner and a second subsequent response occurred fourteen (14) days after the date of said mailing.

(Ord. No. 386, § 1, 2-17-2015; Ord. No. 410, § 1, 10-17-2017)

A. When the city has incurred response costs as set forth in this chapter, the actual cost thereof, plus accrued interest at the rate of ten (10) percent per annum from the date of billing, shall be charged to the person or persons responsible. The person or persons responsible under this chapter shall be billed by mail and the invoice shall apprise them that failure to pay the invoiced amount may result in a special assessment against property on which the nuisance was maintained.

B. In the event that the person(s) responsible for the costs of a subsequent response fails to appeal the invoice sent pursuant to subsection A above, the city manager (or designee) may determine that the amount stated in the invoice shall become a lien against the property on which the nuisance was maintained and the city shall follow the lien and special assessment procedures established in E.P.A. Municipal Code Section 8.08.150 (Collection of costs as abatement lien).

C. Notwithstanding the foregoing or any other provision herein, the city does not waive its right to seek reimbursement for actual cost through other legal remedies or procedures available at law or in equity. The remedies provided by this chapter shall be in addition to any other remedies provided by law.

(Ord. No. 386, § 1, 2-17-2015)

If the owner and occupant of the property are different persons, they shall be jointly and severally liable for the amount set forth in the invoice issued pursuant to Section 9.01.100 above.

(Ord. No. 386, § 1, 2-17-2015)

If the owner of the property is not the occupant of the property and if the occupant of the property does not pay the amount set forth in the invoice within thirty (30) calendar days after the invoice becomes final or after the invoice has been confirmed pursuant to Section 9.02.130 (Appeals), the city manager or his or her designee shall take appropriate steps to collect the amount set forth in the invoice from the occupant of the property, including directing the city attorney to file a lawsuit on behalf of the City of East Palo Alto against the occupant for the amount set forth in the invoice.

(Ord. No. 386, § 1, 2-17-2015)

A. Any person who has been provided written notification by the city that he or she is liable for response costs in accordance with this chapter may appeal to the city manager for a hearing. The appeal shall be in writing, shall be signed by the appellant, and shall set forth the facts and reasons upon which the appeal is based. The appeal shall be filed within ten (10) days following the date of official written notice (i.e., invoice) to the appellant that he or she will be held liable for such costs.

B. The city manager, or his or her designee will schedule a hearing. The appellant shall be given written notification of the date at least five days in advance of the hearing.

C. The city manager or his or her designee shall hear the appeal and determine whether to allow the relief being sought or to deny the appeal. The manager has the authority to reduce or compromise the debt (as stated in the invoice) as in the city manager's judgment appears to be in the best interests of the city.

D. If the city manager denies the appeal, that decision may be appealed to the city council by filing a written notice of appeal, signed by the appellant, with the city clerk within ten (10) days following the date of the manager's written decision. The appeal shall be scheduled for a hearing before the city council and the appellant shall be given written notification at least five days in advance of the hearing.

E. Upon denial of an appeal, the appellant shall have thirty (30) days to pay the applicable response costs, or the city may commence proceedings to collect such sums as are due as provided by law and, where applicable, to place a special assessment upon the involved property.

(Ord. No. 386, § 1, 2-17-2015)

When the full amount due to the city for subsequent response costs as set forth in this chapter is not paid by the person or persons responsible within thirty (30) days of the date of the billing for such costs, the finance director may file with the office of the Tax Collector of the County of San Mateo a declaration that payment was not received along with a request that the amount be imposed as a special assessment on the property pursuant to Government Code Section 38773.5. The remedy provided in this section shall not constitute an election of remedies by the city.

(Ord. No. 386, § 1, 2-17-2015)