Chapter 9.36 — PARTIES WHERE ALCOHOL IS CONSUMED BY MINORS

(a)

The Town Council finds and determines that the consumption of alcohol by minors at private parties or gatherings has been linked to an increase in alcohol abuse by minors and often results in or contributes to

physical altercations, violent crimes, including sexual offenses, accidental injury, neighborhood vandalism, and excessive noise disturbance, all of which may require intervention by law enforcement.

(b)

The enhancement of law enforcement's ability to abate parties where alcohol is consumed by minors will result in a decrease in the abuse of alcohol by minors, a decrease in the incidence of physical altercations and injuries, as well as decreased neighborhood vandalism and excessive noise disturbance, thereby improving public health and safety.

(c)

Problems associated with parties where minors are consuming alcohol are difficult to resolve unless those responsible for such parties are subject to criminal and civil liability for their conduct.

(d)

Town law enforcement has been required to respond, sometimes on multiple occasions, to parties on private property at which alcoholic beverages are served to or consumed by minors. Responses to such parties result in a disproportionate expenditure of the public safety resources of the Town and can result in delayed Police Department response to other law enforcement calls within the Town.

(e)

The consumption of alcohol by minors is harmful to the health, safety and welfare of the community, and imposing criminal and civil liability, as well as liability for response costs, on persons responsible for or permitting such conduct is an effective means to prevent consumption of alcohol by minors.

(Code 1990, § 9.28.010; Ord. No. 06-04, § 1(exh. A), 2006)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Alcohol means ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.

Alcoholic beverage includes alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, 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.

Family gathering is a gathering where each minor present is supervised by said minor's parent or legal guardian.

Guardian means:

(1)

A person who, under court order, is the guardian of the person of a minor; or

(2)

A public or private agency with whom a minor has been placed by the court.

Juvenile means any person under 18 years of age.

Minor means any person under 21 years of age.

Parent means a person who is a natural parent, adoptive parent, or step-parent of another person.

Party means a group of three or more persons who have assembled or are assembling for a party, social occasion, or social activity at a private residence or on other private property. The term "party" includes a gathering or event.

Police Department's response costs means the costs associated with responding to parties held at private residences or other private property at which alcohol is served to or consumed by minors, including, but not limited to:

(1)

Salaries and benefits of law enforcement personnel for the time spent responding to, remaining at, or otherwise dealing with such parties;

(2)

The administrative costs attributable to such responses;

(3)

The cost of any medical treatment to or for any law enforcement personnel injured responding to, remaining at, or leaving the scene of such a party; and

(4)

The cost of repairing any Town equipment or property damaged, and the cost of the loss of use of any such equipment, in responding to, remaining at, or leaving the scene of such a party.

Private residence or other private property means a home, yard, apartment, condominium, hotel or motel room, or other dwelling unit, or a hall, community center, or meeting room, whether occupied on a temporary or permanent basis, whether occupied as a dwelling or only for a party, or other social function, and whether owned, leased, rented, or used with or without compensation.

Responsible persons means and includes, but is not limited to:

(1)

The person who owns, rents, leases or otherwise has control of the premises where the party takes place;

(2)

The person in charge of the premises where the party takes place;

(3)

The person who organizes, supervises, officiates, conducts or controls the party; and

(4)

The landlord of the person who organizes, supervises, officiates, conducts or controls the party.

(Code 1990, § 9.28.020; Ord. No. 06-04, § 1(exh. A), 2006)

(a)

Prohibition. No responsible person shall allow a party to take place or continue at a private residence or other private property if a minor at the party obtains, possesses, or consumes any alcoholic beverage and the person knows or reasonably should know that the minor has obtained, possesses, or is consuming alcoholic beverages at the party.

(b)

Exceptions. This section shall not apply to religious activities protected by Article 1, Section 4 of the State constitution or to family gatherings.

(c)

Prima facie evidence of knowledge. When a responsible person is present at that residence or premises at the time that the minor obtains, possesses, or consumes any alcoholic beverage in violation of this section, it shall be prima facie evidence that such person had the knowledge, or should have had the knowledge, that the minor obtained, possessed, or consumed an alcoholic beverage at the party.

(d)

Penalty. A violation of this section shall constitute a misdemeanor punishable by a fine of $1,000.00 or by imprisonment for a period not to exceed six months, or by both fine and imprisonment.

(Code 1990, § 9.28.030; Ord. No. 06-04, § 1(exh. A), 2006)

In addition to or in lieu of the criminal penalty set forth above, any violation of this chapter may be enforced as a civil matter and civil fines of $500.00 for a first violation and $1,000.00 for a second or subsequent violation may be imposed.

(Code 1990, § 9.28.040; Ord. No. 06-04, § 1(exh. A), 2006)

(a)

Citation. Upon discovering or observing a violation of Section 9.36.030, the Police Department may provide the responsible persons with a citation. The citation shall:

(1)

Describe the location where the violation occurred, set forth the date and time of the violation and of the issuance of the citation (if different), and indicate the facts giving rise to the violation;

(2)

Inform the responsible person of the right to an administrative hearing if timely requested and of the procedure for making such a request as set forth in Section 9.36.080;

(3)

Specify the amounts of the fines being imposed under the authority of this chapter, how such fines increase for subsequent violations, that such fines shall be paid to the Town Finance Director/Tax Collector and the date by which payment is due. The date shall be 30 days from the date the citation is served.

(b)

Service. A civil citation for violation of this chapter shall be served as follows:

(1)

Personal service on the responsible persons; or

(2)

Certified mail, postage prepaid, return receipt requested, to the responsible persons. Such service shall be deemed effective on the date of mailing.

(Code 1990, § 9.28.050; Ord. No. 06-04, § 1(exh. A), 2006)

(a)

Liability. Responsible persons shall be jointly and severally liable for Police Department's response costs when Town law enforcement is called to respond for a second or subsequent time within any 12-month period to a party at a private residence or other private property within the incorporated areas of Town at which alcohol is served to or consumed by minors, provided that a warning has been given in accordance with Subsection (b) of this section.

(b)

Warning. When Town law enforcement makes a first or initial response to a party at a private residence or other private property within the unincorporated area of the Town, the officer shall inform any responsible persons at the scene that:

(1)

The officer has determined that alcohol is being served to or consumed by minors; and

(2)

Responsible persons will be charged for any response costs required for subsequent responses to the scene for a party at which alcohol is served to or consumed by minors within a 12-month period.

If a responsible person cannot be identified at the scene, the officer may issue a warning to one or more responsible persons later identified. Such warnings shall be made in person, or by certified mail, postage prepaid, return receipt requested.

(c)

Notice of liability for Police Department's response costs. Upon the occurrence of a second or subsequent response by the Police Department to a private residence or other private property for a party at which alcohol is served to or consumed by minors, a notice of liability for Police Department's costs may be served on the responsible persons. Service shall be made within 30 days of the response giving rise to such costs. The notice shall contain the following information:

(1)

The names of the persons being held liable for the payment of such costs;

(2)

The address of the residence or other private property where the party occurred;

(3)

The date and time of the response;

(4)

The law enforcement provider who responded;

(5)

The date and time of the warning given pursuant to Subsection (b) of this section;

(6)

An itemized list of the response costs for which the person is being held liable;

(7)

That payment shall be made to the Town Finance Director/Tax Collector and the date by which payment is to be made; and

(8)

That the responsible person has a right to an administrative hearing if timely requested and a description of the procedure for making such a request as set forth in Section 9.36.080.

(d)

Service. A notice of liability for response costs shall be served as follows:

(1)

Personal service on the responsible persons; or

(2)

Certified mail, postage prepaid, return receipt requested, to the responsible persons. Such service shall be deemed effective on the date of mailing.

(e)

Payment. The responsible person shall remit payment of the noticed response costs to the Town Finance Director/Tax Collector within 30 days of the date of service of the notice of liability. The payment of any such costs shall be stayed upon a timely appeal made pursuant to Section 9.36.080.

(Code 1990, § 9.28.060; Ord. No. 06-04, § 1(exh. A), 2006)

If any civil fine or response costs imposed pursuant to this chapter are not paid within 90 calendar days of the date that the fine or liability was imposed, then the Town may file a claim in small claims court for collection thereof. If the amount owed is over $5,000.00 the Town Attorney or District Attorney may file suit for collection in the Superior Court. The Town may collect on the judgment through any lawful means, including, but not limited to, recordation of a judgment lien in accordance with applicable legal requirements.

(Code 1990, § 9.28.070; Ord. No. 06-04, § 1(exh. A), 2006)

(a)

Request for hearing.

(1)

Any person receiving a civil citation or a notice of liability for Police Department's response costs pursuant to this chapter may request an appeal hearing before the Town Manager or designee (hereafter, "hearing officer") postmarked within ten business days from the date the citation or the notice of liability for Police Department's response costs was served. The request for a hearing must be made in writing and filed with the Town Clerk in person or by mail within ten business days from the date the citation was given.

(2)

The failure of any person to timely request a hearing in accordance with the provisions of this section shall constitute a waiver of such person's right to a hearing.

(b)

Notice of hearing.

(1)

The Town Clerk shall set the date, time, and place for the hearing and shall serve written notice of same at least ten business days prior to the date of the hearing to the appellant by any one of the following means:

a.

Personal service;

b.

Certified mail, postage prepaid, return receipt requested, to the responsible persons. Such service shall be deemed effective on the date of mailing.

(2)

The failure of the appellant to receive notice of the appeal hearing shall not affect the validity of any proceedings taken under this chapter.

(c)

Conduct of hearing.

(1)

The hearing officer shall consider any written or oral evidence presented at the hearing consistent with the following procedures:

a.

The appellant shall have the burden of proof at the hearing;

b.

The Police Department's report of the incident for which the violation and notice of liability for Police Department's response costs was issued shall be accepted into evidence;

c.

The citation and notice of liability for Police Department's response costs shall be admitted as prima facie evidence of the facts stated therein.

(2)

The hearing officer shall consider the facts of the case and shall draw its own independent conclusions as to the merits of the appeal; i.e., the appeal shall be heard de novo.

(3)

Upon conclusion of the hearing and receipt of information and evidence from all interested parties, the hearing officer may immediately render a decision, continue the proceeding or take the matter under submission and later render a decision.

(4)

The order and decision of the hearing officer shall be the final administrative action of the Town. If the hearing officer finds that a violation has occurred and/or that the grounds for imposition of liability for Police Department's response costs exists, said officer may nevertheless, for good cause shown, reduce, waive or conditionally reduce the fines or response costs stated in the citation or notice. The hearing officer may also impose additional conditions and deadlines by which to pay outstanding fines and response costs.

(5)

The hearing officer shall produce a written order and decision setting forth findings in its support. The order and decision shall also inform the person who filed the appeal of the right under State law to appeal the order to the Superior Court within 20 days from the date that service of the final order is perfected on the party pursuant to Government Code § 53069.4(b)(1).

(6)

The Town Clerk shall serve the order and decision on the appellant within five working days after the decision is given to the clerk for filing. Service shall be by certified mail, postage prepaid, return receipt requested.

(7)

If a citation is appealed under this section, then the fines or penalties will not be collected until the order and decision has been served on the appellant. Such service shall be deemed effective on the date of mailing.

(Code 1990, § 9.28.080; Ord. No. 06-04, § 1(exh. A), 2006)

Town does not waive its rights to seek reimbursement for actual costs of enforcement services through other legal remedies or procedures. The procedure provided for in this chapter is in addition to any other statute, ordinance or law, civil or criminal. This chapter in no way limits the statutory authority of peace officers or private citizens to make arrests for any criminal offense arising out of conduct regulated by this chapter.

(Code 1990, § 9.28.090; Ord. No. 06-04, § 1(exh. A), 2006)