Chapter 25.17

AIRPORT SECURITY RESPONSE - COST RECOVERY

Parts:

• 1 Purpose and Findings

• 2 Definitions

• 3 Cost recovery

• 4 Appeal

• 5 Severability

Part 1

PURPOSE AND FINDINGS

Sections:

• A. It is the intent and purpose of the council in adopting this chapter to recover the cost to the City of San José for emergency response to breaches of security at the Norman Y. Mineta San José International Airport and to create a deterrent to persons from engaging in acts that cause or threaten to cause harm to life and property at the airport by making such persons liable for the costs of emergency response.

• B. This law is timely and appropriate, because current laws and city regulations are insufficient to address the aforementioned problems in light of heightened airport security requirements as the result of the September 11, 2001 terrorist attacks on the United States of America. The terrorist attacks were effected by use of the nation's aviation system and breaches of airport security.

• (Ord. 27142.)

This chapter is adopted pursuant to the authority granted to charter cities in Article 11, Sec-

T25:82

AIRPORT

§ 25.17.250

tion 5 of the California Constitution and the general police power as has specifically been acknowledged by the state legislature to enable cost recovery for emergency response purposes in Government Code Section 53158.

(Ord. 27142.)

Part 2

DEFINITIONS

Sections:

25.17.220 Emergency response.

• 25.17.230 Expense of emergency response.

25.17.240 Person.

25.17.250 Prohibited act.

agencies by mutual aide or agreement, in making an emergency response to an incident involving a prohibited act or prohibited item as defined herein. Such expenses shall only include those costs directly arising because of the response to the particular incident. Reasonable costs shall include the costs of providing police, firefighting, rescue, emergency medical services, security services, and related equipment in response to the incident, as well as the salaries or contractual costs of the personnel responding to the incident. (Ord. 27142.)

A "person" includes individual persons, organizations and entities as set forth in Section 1.04.020 J. of the San José Municipal Code. (Ord. 27142.)

25.17.280 Prohibited item.

25.17.290 Secured area.

"Prohibited Act" means any of the following:

The definitions set forth in this part shall govern the application and interpretation of this chapter.

(Ord. 27142.)

"Airport Commission" is the administrative body established under Part 4 of Chapter 2.08 of Title 2 of the San José Municipal Code. (Ord. 27142.)

An "emergency response" is the appropriate and reasonable emergency response to any harm to life and/or property, or attempt or threat thereof, caused by any person at the airport as the result of a prohibited act or prohibited item as defined herein. (Ord. 27142.)

"Expense of Emergency Response" means the actual costs incurred by the city, including other

• A. Any act by a person causing or intending to cause harm to life, including themselves, or property upon the airport;

• B. Any act, whether verbal, written or physical, that is made under circumstances that a reasonable person of due diligence would understand as an immediate, imminent or potential threat of harm to life or property;

• C. Tampering, interfering with, compromising, modifying, attempting to circumvent or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure or procedure implemented at the airport;

• D. Entry or presence within a secured area, or within any area where entry requires clearance at a security checkpoint or the appropriate airport- issued or airportapproved identification medium for such entry, without complying with the sys-

T25:83

SAN JOSÉ CODE

§ 25.17.250

tems, measures, or procedures being applied to control access to, or presence or movement in, such areas;

• E. Use, allowance of use, or causing to be used, any airport-issued or airport-approved access medium or identification medium that authorizes the access, presence, or movement of persons or vehicles in any secured area or in any other manner than that for which it was issued by the city or other appropriate authority; or

• F. Interference with, assault, threat, or intimidation of security screening personnel in the performance of their security screening duties.

A "secured area" is any area at the airport where entry requires clearance at a security checkpoint or the appropriate airport-issued or airportapproved identification medium for such entry. (Ord. 27142.)

Part 3

COST RECOVERY

Sections:

A "Prohibited item" includes any of the follow-

ing:

• A. Any item designated as a prohibited item for carry-on or checked baggage in 49 U.S.C. § 40101 et seq. and 49 C.F.R. § 1540.111 as interpreted by the U.S. Department of Homeland Security, Transportation Security Administration in its most recent listing of prohibited and permitted items promulgated pursuant to the authority in 49 U.S.C. § 114 to develop policies dealing with threats to transportation security;

• B. Any hazardous material prohibited by the Federal Aviation Administration pursuant to 49 U.S.C. Subtitle B, Chapter 1, Subchapter C, Parts 171, 172, 173, and 175;

• C. Any item that is substantially similar in nature to any item designated in Subsection A. or B. herein; or

• D. Any item that is intended to resemble a prohibited item designated in Subsections A. through C. herein.

• (Ord. 27142.)

Any person causing an emergency response as a result of: (a) an intentionally committed prohibited act; or (b) intentionally bringing or attempting to bring a prohibited item to the airport shall be liable for all the expense of emergency response incurred by the City of San José. The expense of emergency response shall be a charge against the person causing the emergency response. The charge constitutes a debt of that person and is collectible by the city in the same manner as in the case of an obligation under a contract, express or implied. In the event that more than one person causes an emergency response, each person shall be jointly and severally liable to the city for such expense of emergency response. (Ord. 27142.)

• A. The director shall prepare a memorandum detailing the expense of emergency response, and shall send, by both certified mail and by first-class mail postage pre-paid, a demand for payment with a copy of the memorandum of expense of emergency response to the person causing the emergency response. The expense

T25:84

AIRPORT

§ 25.17.500

of emergency response shall be paid by the person causing the response within thirty days of the date of the demand for payment, unless a written request for appeal hearing is received within fifteen days after the date of the demand for payment pursuant to Section 25.17.400 herein.

• B. Failure to appeal the demand for payment within the time specified herein shall be conclusive of the accuracy of the demand for payment.

• (Ord. 27142.)

Part 4

APPEAL

Sections:

The notice of appeal to the airport commission of the demand for payment and expense of emergency response shall be in writing, shall specify the reasons for the appeal, and shall include all information and documentation the appellant desires the airport commission to consider in the appeal. The notice of appeal shall be filed with the director within fifteen calendar days after the date of the demand for payment. (Ord. 27142.)

• A. Upon receipt of a timely written request for a hearing on a demand for payment, the director shall schedule a hearing before the airport commission. The director shall notify the appellant of the hearing date, time and location.

• B. The hearing with the airport commission shall be held not less than fifteen days and not more

than sixty days from the date that the request for hearing is filed in accordance with the provisions of this chapter.

• C. At the hearing, the appellant may present any relevant evidence. The hearing will be conducted informally and the technical rules of evidence shall not apply. The appellant may be represented by any person.

• D. After closing the hearing, the airport commission shall render a decision sustaining, withdrawing or modifying the demand for payment based upon its review of the reasonableness of the emergency response or the expense of emergency response.

A written notice of final decision shall be hand-delivered or sent by mail to the appellant. (Ord. 27142.)

The decision of the airport commission shall be deemed final and may only be reviewed by a court of competent jurisdiction under the California Code of Civil Procedure Section 1094.5. (Ord. 27142.)

Part 5

SEVERABILITY

Sections:

If any of the provisions of this chapter or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect any other provisions or applications of this chapter which can be given effect without the invalid provision or application. To this end the various provisions of this chapter are severable and each would have been enacted without the other. (Ord. 27142.)

T25:85

SAN JOSÉ CODE