San Clemente Municipal Code Ch. 9.16 Loud and Unruly Gatherings

For the purposes of this chapter, the following definitions shall apply:

A. "Loud or Unruly Gathering" means a gathering of two or more persons on or at any residential unit for a social occasion or other activity at which loud or unruly conduct occurs and results in a public nuisance or a threat to the public health, safety, general welfare, or quiet enjoyment of residential property or nearby public property.

1. As used in this chapter, "loud or unruly" conduct includes, without limitation, any or all of the following:

a. Noise in excess of that permitted by the city's noise ordinance and/or general plan;

b. Obstruction of public and private streets by crowds or vehicles;

c. Obstruction of rights-of-way by people or vehicles;

d. The service of alcohol to minors;

e. Possession and/or consumption of alcohol by minors;

f. Assaults, batteries, fights, domestic violence or other disturbances of the peace;

g. Vandalism;

h. Litter;

i. Urinating or defecating in public; or

j. Public drunkenness.

2. Loud or unruly conduct does not include any activity that is:

a. Protected by Article 1, Section 4 of the California Constitution;

b. Protected by the First or Fourteenth Amendments to the United States Constitution; or

c. Regulated by the California Alcoholic Beverage Control Act.

B. "Responsible Person" means and includes without limitation:

1. Any person(s) who is present at and rents, leases or otherwise is in charge of the residential unit where a loud or unruly gathering occurs; or

2. Any person(s), including any business, company or entity, who organizes and/or sponsors a loud or unruly gathering; or

3. Any person(s) who attends a loud or unruly gathering and engages in loud or unruly conduct.

If the responsible person is a juvenile, then the parent(s) or guardian(s) of that juvenile shall also be considered a responsible person.

C. "Residential Unit" means any residential "dwelling unit," as that term is defined in section 17.88.030 of this Code, and includes any garage, carport, walkway, yard, patio, deck, or other similar area associated with an individual dwelling unit. However, "Residential Unit" does not include any room or unit of a hotel or motel.

D. "Owner" means any person(s), including any firm, association, organization, partnership, trust, business, corporation, company or entity, who owns the residential unit where a loud or unruly gathering occurs.

E. "Juvenile" means any person under the age of eighteen (18) years old.

F. "Minor" means any person under the age of twenty-one (21) years old.

G. "Officer" means an officer as defined by Government Code § 50920 or a City officer or employee as identified in Section 1.12.010 A. of the Code.

(Ord. No. 1541, § 1, 9-6-2011; Ord. No. 1617, § 7, 2-16-2016)

A. .....It shall be unlawful and constitute a public nuisance for any owner or responsible person to cause or allow a loud or unruly gathering to occur at any residential unit within the City. A loud or unruly gathering may be abated by the City by all reasonable means, including, but not limited to, an order of an officer requiring the loud or unruly gathering to be disbanded, the issuance of citations, and/or the arrests of any person(s) committing a violation of law under applicable State or local laws.

B. .....Nothing in this section shall be construed to impose liability on an owner, resident of the residential unit, the person in charge of the residential unit, or the organizer or sponsor of the gathering, for the conduct of persons who are present without the express or implied consent of resident, person in charge of the residential unit or the organizer or sponsor of the event, as long as the resident, person in charge of the residential unit or the organizer or sponsor of the event have taken all steps reasonably necessary to exclude such uninvited persons from the residential unit, including an owner who is actively attempting to evict a tenant from the residential unit.

C. .....Where an invited guest at the event engages in conduct which the resident, person in charge of the residential unit, or the organizer or sponsor could not reasonably foresee and the conduct is an isolated instance of an invited guest at the event violating the law which the resident, person in charge of the residential unit, or the organizer or sponsor is unable to reasonably control without the intervention of an officer, the unlawful conduct of the individual invited guest shall not be attributable to the owner, resident, person in charge of the premises, or the organizer or sponsor of the event for the purpose of determining whether the event constitutes a loud or unruly gathering.

(Ord. No. 1541, § 1, 9-6-2011; Ord. No. 1617, § 6, 2-16-2016)

A. .....When an officer intervenes at a loud or unruly gathering, the residential unit at which the loud or unruly gathering occurs shall be posted with a notice stating (1) that the intervention was necessary as a result of a public nuisance caused by a loud or unruly gathering; (2) the date of the intervention; (3) that any subsequent loud or unruly gathering within one hundred eighty (180) days from the date of the prior loud or unruly gathering may result in administrative fines for all responsible person(s), as well as any other person present at the subsequent loud or unruly gathering; and (4) that is it unlawful to remove, alter, tamper with or deface the notice.

B. .....Without written authorization from the City, it shall be unlawful for any person to remove, alter, tamper with or deface the posted notice of a loud or unruly gathering from the residential unit prior to the expiration of the entire one hundred eighty (180) day period from the date of posting.

C. .....Without written authorization from the City, it shall be unlawful and subject to a administrative fine for any owner, person who rents, leases, or otherwise has control of the residential unit where a notice has been posted of a loud or unruly gathering to allow the removal, alteration, tampering with, or defacement of, the posted notice of a loud or unruly gathering from the residential unit prior to the expiration of the entire one hundred and eighty (180) day period from the date of posting. Upon discovering that a notice has been removed, the owner may request from San Clemente Police services a copy of the notice. The owner shall then re-post the notice in the same location as the original posting.

D. .....If a notice is posted pursuant to 9.16.030(A) and the owner of the residential unit is different than any responsible person who received a citation or notice at or near the time of posting the notice, a notice concerning the loud or unruly gathering shall be mailed to such owner of the residential unit at the address shown on Orange County's last equalized property tax assessment roll, or the supplemental roll, whichever is more current. The notice shall advise the owner that any subsequent loud or unruly gathering on the same premises with one hundred and eighty (180) days of the loud or unruly gathering that is the subject of the notice may result in additional administrative fines as established by this chapter.

(Ord. No. 1541, § 1, 9-6-2011; Ord. No. 1617, § 6, 2-16-2016)

If after posting of a notice pursuant to subsection 9.16.030(A), an officer is required to respond to the residential unit based upon another loud or unruly gathering and the owner of that residential unit does not reside within the residential unit, than the owner shall not be liable for the increased fine amount for the second or subsequent response unless notice has been mailed to the owner in compliance with subsection 9.16.030(D) and fourteen (14) calendar days have passed since the mailing of said notice.

(Ord. No. 1541, § 1, 9-6-2011; Ord. No. 1617, § 6, 2-16-2016)

A. .....The City shall give a notice of a violation of subsection 9.16.020(A) by issuing a citation or notice of violation to the responsible person. Within a reasonable time following the violation, but not exceeding forty-five (45) days, the citation or notice of violation shall be served either by personal service on the responsible person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such responsible person to be notified, at their last known address as the same appears in the public records of the City.

B. .....Service by personal service shall be deemed to have been complete when served on the responsible person. Service by mail shall be deemed to have been completed at the time of deposit by the City in the mail for delivery by the United States Postal Service.

C. .....The citation, administrative citation, or notice of violation shall include the following information:

1. The name of the responsible person, current residential address and mailing address;

2. The address of the residential unit where the loud or unruly gathering occurred;

3. The date and time of the response by an officer to the loud or unruly gathering;

4. A summary description of the loud or unruly conduct;

5. The name of the City officer who ordered the loud or unruly gathering disbanded, issued citations, or posted the residential unit;

6. An order prohibiting the continuation or repeated occurrence of the violation;

7. A statement concerning the amount of the administrative fine imposed and an explanation of how and when to pay the administrative fine;

8. Notification of the right to appeal or administrative hearing, including the time within which the violation may be contested and the place to submit a written appeal or request for an administrative hearing; and

9. Notification that the City may impose a lien on the subject property, or pursue other lawful means to collect the administrative fine, in the event of non-payment of any administrative fines;

10. The date the citation, administrative citation, or notice of violation was issued;

11. Include a warning that failure to pay the fine or the failure to request an administrative hearing and appear at the same may result in the City taking all legal steps necessary to obtain payment of the fine, and the offender being charged all costs of such collection.

(Ord. No. 1541, § 1, 9-6-2011; Ord. No. 1617, § 6, 2-16-2016)

A. .....The following administrative fines shall be assessed for violations of subsection 9.16.020(A) of this chapter:

1. An administrative fine not exceeding one hundred dollars ($100.00) for a first violation;

2. An administrative fine not exceeding two hundred dollars ($200.00) for a second violation within one hundred eighty (180) days of the first violation;

3. An administrative fine not exceeding five hundred dollars ($500.00) for a third violation within one hundred eighty (180) days of the first violation; and

4. A fourth and any subsequent violations within one hundred eighty (180) days of the first violation may, but need not, be charged a misdemeanor, and shall be subject to a fine not exceeding one thousand dollars ($1,000.00).

B. .....Any responsible person who is present at a residential unit that has a notice posted pursuant to subsection 9.16.030(A) shall be presumed to have notice of the prior violation(s) by virtue of the posted notice(s) and shall be subject to an administrative fine according to the number of violation(s) at the residential unit within the preceding one hundred eighty (180) day period pursuant to the civil fine schedules in subsection 9.16.060(A) above.

C. .....An administrative fine not exceeding five hundred dollars ($500.00) shall be assessed for a violation of subsection 9.16.030(B) of this chapter. Additionally, any person violating subsection 9.16.030(B) may be prosecuted for a misdemeanor and, upon conviction, shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment for a term not exceeding six (6) months, or by both such fine and imprisonment.

D. .....An administrative fine not exceeding five hundred dollars ($500.00) shall be assessed for a violation of subsection 9.16.030(C) of this chapter.

E. .....All administrative fines imposed under this chapter shall be due and payable to the City's Finance Department within the earlier of thirty (30) days from the issuance of a citation or service of the notice of violation, unless appealed, in which case the fine shall be due and payable to the City's Finance Department within the earlier of thirty (30) days of a final decision on the appeal.

F. .....Any owner or responsible person who is unable to pay all or a part of the administrative fine due to an extreme financial hardship may file a written request for an administrative fine waiver or payment plan with the City's Administrative Finance Director within fifteen (15) calendar days from the date of service of the citation or notice, whichever is earlier. The failure of any owner or responsible person to timely file a written request for an administrative fine waiver or payment plan with the City's Finance Director shall be deemed a failure to exhaust the owner's or responsible person's administrative remedies with regard to the same.

1. The written request for an administrative fine waiver or payment plan shall be in writing, describe with particularly the extreme financial hardship as to why all or a part of the fine cannot be paid, or indicate what the owner or responsible person believes would constitute a reasonable payment plan for payment of the administrative fine over time. Further, the written request for an administrative fine waiver or payment plan must be accompanied by a sworn affidavit and demonstrate to the satisfaction of the City's Finance Director the owner's or responsible person's extreme financial hardship that necessitates a waiver of all or a part of the administrative fine amount or need for a reasonable payment plan. The City's Finance Director is entitled to request additional documentation and information from the owner or responsible person in order to fully assess the owner's or responsible person's extreme financial hardship. The failure of any owner or responsible person to timely submit all requested additional documentation and information to the City's Finance Director as requested shall be deemed a failure to exhaust the owner's or responsible person's administrative remedies with regard to the same.

2. Once a complete written request for administrative fine waiver or payment plan is filed with the City's Finance Director, the requirement to pay the administrative fine shall be stayed until the City's Finance Director determines whether to grant or deny the request.

3. If the City's Finance Director grants the written request for an administrative fine waiver, the owner or responsible person shall not be required to pay the administrative fine. If the Finance Director determines that the owner or responsible person has the financial ability to pay all or a part of the administrative fine on a reasonable payment plan, the City's Finance Director shall so notify the owner or responsible person and the owner or responsible person shall execute any agreements required by the City's Finance Director to establish the payment plan. Any payment plan established for the payment of an administrative fine under this chapter shall not exceed three hundred sixty-five (365) days from the date of the City Finance Director's determination.

4. The granting of any request for an administrative fine waiver or payment plan shall not excuse or discharge any continuation or repeated occurrence of any violation of this chapter, nor shall it bar further enforcement action by the City.

5. If the City's Finance Director denies the written request for an administrative fine waiver or payment plan, the administrative fine must be paid within fifteen (15) calendar days from the date of personal delivery on the owner or responsible person or mailing of the City Finance Director's determination.

6. The City Finance Director's determination shall be (i) made within fifteen (15) calendar days of the date of receipt of the complete request or any additional information as requested by the City Administrative Services/Finance Director; (ii) in writing; and (iii) served either by personal delivery on the owner or responsible person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such owner or responsible person. The decision of the City's Finance Director shall be final.

G. .....The administrative fines and criminal penalties imposed in this chapter shall be in addition to any other fines and/or penalties imposed for violations of local, state, and/or federal law during a loud or unruly gathering.

H. .....Any owner who does not reside within the residential unit and has (i) included covenants within the written lease or rental agreement for the premises on which a loud or unruly gathering occurs that contain specific language prohibiting the activities described in this chapter; and (ii) demonstrated due diligence in abating an unmanageable tenant(s) or responsible person(s) for a loud or unruly gathering shall not be liable under this chapter. Prior to September 1, 2012, an owner who does not reside within the residential unit and has a written lease or rental agreement for the residential unit on which a loud or unruly gathering has occurred shall only need to demonstrate due diligence in abating an unmanageable tenant(s) or responsible person(s) for a loud or unruly gathering to not be liable under this chapter.

I. .....Any owner who does not reside within the residential unit, has a written lease or rental agreement for the residential unit and had the same residential unit posted with a notice pursuant to subsection 9.16.030(A), may file a written petition with the Chief of Police Services, or his or her designee, requesting permission to remove the posted notice prior to the expiration of the one hundred eighty (180) day period. The Chief of Police Services, or his or her designee, may grant the owner's written petition upon a satisfactory showing by the owner that the responsible person(s) for the loud or unruly gathering are no longer in possession of or allowed to occupy the residential unit.

J. .....Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder.

(Ord. No. 1541, § 1, 9-6-2011)

A. .....Any owner or responsible person who, pursuant to this chapter, is (1) subject to an administrative fine or, (2) have had their residential unit posted with a notice concerning a loud or unruly gathering, shall have the right to file a request for an administrative hearing to appeal the imposition of the administrative fine and/or the posting of the premises pursuant to the procedures contained in section 1.20.080 of this Code. Any such request shall be submitted to the City in writing on the form required by the City within ten (10) days from the date of service of the citation, notice of violation or posting of the premises, whichever is earlier.

B. .....The citation, notice of violation, and/or posted notice on the premises, together with any additional documents or evidence submitted by the City, shall constitute prima facie evidence of the respective facts contained in those documents and evidence.

C. .....If the City submits any additional documents or evidence to the Hearing Officer for consideration at the administrative hearing, then a copy of the same shall be served by mail on the owner or responsible person requesting the hearing at least five (5) days prior to the date of the administrative hearing. The failure of any person to receive such documents prior to the administrative hearing shall only entitle the owner or responsible person to a reasonable continuance of the administrative hearing.

D. .....If the owner or responsible person desires to submit any documents or evidence to the Hearing Officer, then a copy of the same shall be served by mail on the City at least five (5) days prior to the date of the administrative hearing. The failure of the owner or responsible person to comply with this requirement shall only entitle the City to a reasonable continuance of the administrative hearing.

E. .....Other than as provided in this section, no other discovery is permitted. The administrative hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in administrative actions in courts of competent jurisdiction in this state. However, irrelevant or unduly repetitious evidence shall be excluded.

F. .....Any owner or responsible person aggrieved by a written decision of a Hearing Officer following an administrative hearing may obtain judicial review of the decision by following the procedures contained in section 1.20.090 of this Code.

(Ord. No. 1541, § 1, 9-6-2011)

A. .....The amount of any administrative fine imposed pursuant to this chapter shall be deemed a debt owed to the City.

B. .....At its discretion, the City may pursue any and all legal and equitable remedies to collect unpaid fines imposed pursuant to this chapter. Pursuit of one remedy does not preclude the pursuit of any other remedy. It is intended that persons causing, maintaining, and/or permitting the violation, and not the taxpayers, bear the financial burden of the City's enforcement efforts.

C. .....The City shall be entitled to recover all costs related to enforcing any violation(s) of this chapter that are recoverable under applicable local, state or federal law.

D. .....Any person who fails to pay any fine shall be liable in any proceeding brought by the City for costs incurred in securing payment of the unpaid amount, including without limitation, administrative costs and attorneys' fees. Such collection costs shall be in addition to any penalties, interest, and/or late charges imposed upon the unpaid fine.

(Ord. No. 1541, § 1, 9-6-2011)

The remedies provided under this chapter are cumulative and shall not restrict the City's ability to pursue any other remedy to which it is entitled under law or equity. Nothing in this chapter shall be deemed to preclude the imposition of any criminal penalty, nor shall anything in this chapter be deemed to conflict with any penalty or provision under state law, or prohibit any conduct authorized by the state or federal constitutions.

(Ord. No. 1541, § 1, 9-6-2011)