Union City Municipal Code Ch. 9.42 Liability for Cost of Public Safety Responses and Imposition of Civil…

This chapter shall be known and may be cited as the "Social Host Ordinance."

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

The purposes of this chapter are:

A. To protect the public health, safety, and general welfare;

B. To promote the reduction of underage drinking by imposing a civil fine on persons responsible for loud or unruly gatherings where alcohol is consumed by, served to or in the possession of underage persons;

C. To facilitate the enforcement of laws prohibiting the service to, consumption of or possession of alcoholic beverages by underage persons;

D. To offset the municipal costs associated with providing fire, police and other emergency services to loud or unruly gatherings by imposing civil cost recovery penalty upon social hosts and/or landowners who conduct or allow such loud or unruly gatherings to occur on their premises, at their residences, or at rented facilities where alcoholic beverages are served to, consumed by in the possession of underage persons.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

The City Council finds as follows:

A. The City of Union City, pursuant to the police powers delegated to it by the California Constitution, has the authority to enact laws which promote the public health, safety and general welfare of its residents;

B. The occurrence of loud or unruly gatherings on private property where alcoholic beverages are served to, consumed by or in the possession of underage persons is harmful to the underage persons themselves and is a threat to the public health, safety or quiet enjoyment of residential property and the general welfare;

C. Alcohol use by youth remains a serious problem in Union City, contributing significantly to the incidence of adolescent crime, addiction, sexual assault, truancy, driving under the influence of alcohol, and motor vehicle crashes involving alcohol and causing injury and/or death;

D. Underage persons often obtain alcoholic beverages at gatherings held at private residences or at rented residential and commercial premises that are under the control of a person who knows or should know of the service to, possession by, and/or consumption of alcohol by underage persons. Persons responsible for the occurrence of loud or unruly gatherings on private property over which they have possession or control have failed to ensure that alcoholic beverages are not served to, consumed by, or possessed by underage persons at these gatherings;

E. Residents have failed to prevent the occurrence or reoccurrence of loud or unruly gatherings, including those where alcoholic beverages were served to, consumed by or possessed by underage persons, on private property, which seriously disrupts neighboring residents' quiet enjoyment of their property;

F. Control of loud or unruly gatherings on private property where alcoholic beverages were served to, consumed by or possessed by underage persons is necessary when such activity is determined to be a threat to the peace, health, safety or general welfare of the public;

G. Persons held responsible for abetting or allowing loud or unruly gatherings where alcoholic is served to, consumed by or in the possession of underage persons will be more likely to properly supervise or to stop such conduct at gatherings held on property in their possession or under their control;

H. In the past and present, emergency response services personnel have responded and are required to respond, sometimes on multiple occasions, to loud or unruly gatherings on private property at which alcoholic beverages are served to, consumed by or in the possession of underage persons, and responses to such gatherings result in a disproportionate expenditure of public resources of Union City and also result in a delay of responses to regular and emergency calls to the rest of the City;

I. Problems associated with loud or unruly gatherings at which alcoholic beverages are served to, consumed by or in the possession of underage persons would be greatly deterred and alleviated if the Union City Police Department has the additional legal authority to issue a civil citation for a civil fine and/or a civil citation for the cost of public safety response;

J. The intent of this chapter is to protect the public health, safety, quiet enjoyment of residential property, and general welfare, rather than to punish. Persons who actively or passively aid, abet, or allow loud or unruly gatherings shall be held liable for the nuisances created by such gatherings, the civil fine(s) for such violations and costs associated with responding to such gatherings;

K. Section 25658 of the State of California Business and Professions Code makes it unlawful for a person under the age of twenty-one years to purchase or attempt to purchase, or consume alcoholic beverages and makes it unlawful for any person to sell any alcoholic beverage to any person under the age of twenty-one years;

L. According to local, state and Federal surveys, alcohol is overwhelmingly and consistently the most widely used drug at all adolescent age levels. A child who begins alcohol use prior to age fifteen is four times more likely to experience alcohol dependence than one who refrains from alcohol use until age twenty or older;[1]

[1]

Grant, B.F. and D.A. Dawson. Age at onset of alcohol use and its association with DSM-IV alcohol abuse and dependence: Results from National Longitudinal Alcohol Epidemiologic Survey Journal of Substance Abuse 9:103-110, 1997.

M. The City Council therefore determines that this chapter is a reasonable and necessary means to protect and promote the health, safety and general welfare of the youth and other residents of the City of Union City.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

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

"Alcoholic beverage."

The definition of "alcoholic beverage" in Section 23004 of California Business and Professions Code as amended from time to time shall apply to this chapter.

"Juvenile"

means any person less than eighteen years of age.

"Loud or unruly gathering"

means a party or gathering of two or more persons at a residence or on other private property or rented public property upon which loud or unruly conduct occurs. Such loud or unruly conduct constitutes a public nuisance and includes but is not limited to:

Excessive noise;

Excessive traffic;

Obstruction of public streets and/or the presence of unruly crowds that have spilled into public streets;

Public drunkenness or unlawful public consumption of alcohol or alcoholic beverages;

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

Vandalism;

Litter; or

Any other conduct which constitutes a threat to the public health, safety or quiet enjoyment.

"Minor"

means any person less than twenty-one years of age.

"Person responsible for the event"

means and includes, but is not limited to:

The person who owns, rents, leases or otherwise has control of the premises where the gathering occurs; and/or

The person in charge of the premises; and/or

The person who organized or supervises or conducts the event or any other person(s) accepting responsibility for such a gathering;

A responsible person for the loud or unruly gathering need not be present at such gathering resulting in the response giving rise to the imposition of civil money penalties or response costs;

If the person responsible for the event is a juvenile, then the juvenile and the parents or guardians of that juvenile will be jointly and severally responsible for the civil fine and/or for the costs incurred for public safety services pursuant to this chapter and/or for any administrative penalties set forth in Section 9.42.050.

"Public safety services" and/or "response costs"

means the costs associated with responses by law enforcement, fire and other emergency response providers to loud or unruly gatherings, including but not limited to:

The portion of the cost of salaries and benefits of law enforcement, fire or other emergency response personnel for the amount of time spent responding to, remaining at, or otherwise dealing with the loud or unruly gathering(s), and the administrative costs attributable to such response(s);

The cost of any medical treatment to or for any law enforcement, fire or other emergency response personnel injured responding to, remaining at or leaving the scene of a loud or unruly gathering; and

The cost of the use of any City equipment or property, and the cost of repairing any City equipment or property damaged, in responding to, remaining at or leaving the scene of a loud or unruly gathering;

Any other costs recoverable in compliance with California Civil Code Section 1714.9.

"Underage person"

means any person less than twenty-one years of age and shall have the same meaning as "minor," defined in subsection D of this section.

"Hearing Officer"

is defined as the City Manager or any person appointed by the City Manager to conduct a hearing authorized by this chapter.

"Enforcement Officer"

is defined as the City Manager or any person who is authorized or directed by the City Manager to enforce any provision of this chapter.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

Except as permitted by Article 1, Section 4, of the California Constitution, no person shall knowingly suffer, permit or host a gathering at his or her place of residence or other private property, place or premises or host a gathering at a public place under his or her control where two or more persons under the age of twenty-one are present, where the gathering is loud or unruly and alcoholic beverages are in the possession of, being consumed by, or served to any underage person. In addition to any fine or penalty that may be imposed by law, any violation of the provisions of this chapter shall be subject to a civil or penalty as provided herein. The following fines or penalties apply to this chapter:

A. Violation(s)/Civil Fine(s). It is a civil violation for a person to knowingly conduct or allow a loud or unruly gathering where alcohol is served to, consumed by or in the possession of an underage person or persons on the premises owned by the person responsible for the event, on premises rented by or to the person responsible for the event, on premises where the person responsible for the event resides or on premises where the person responsible for the event is in control of such premises during the loud or unruly gathering. The Police Chief, at his or her discretion, may immediately issue a citation for this civil violation upon evidence of the violation. There is no requirement of a first warning in order for the Police to issue this civil citation.

1. Civil Fine: a first violation of this section shall result in a citation with a one hundred dollar fine. A second violation shall result in a citation with a five hundred dollar fine. A third or subsequent violation shall result in a citation with a one thousand dollar fine.

2. The Police Chief shall give notice of a violation of this section by issuing a citation to any and all responsible persons identified by the Police Chief within thirty days of the violation. The citation shall also give notice of the right to request an administrative hearing to challenge the validity of the citation and the time for requesting that hearing (see Section 9.42.055).

3. The civil fine prescribed in subsection 1 is in addition to any imposition of civil penalty for cost recovery for public safety responses that may be assessed pursuant to subsection B of this section.

4. In the event that the responsible person who is in violation of this section is a juvenile, then the juvenile and the parents or guardians of that juvenile shall be jointly and severally liable for the civil violation.

B. Imposition of Civil Penalty for Cost Recovery for Public Safety Responses. In addition to any civil fine imposed for violation of this section, when any loud or unruly gathering where alcohol is served to, consumed by or in the possession of underage person(s) occurs on private property and a public safety officer at the scene determines that there is a threat to public peace, health, safety or general welfare, the public safety officer shall give the person(s) responsible for the event written warning that a second or follow up violation of this section on the same date or within twelve hours of the violation will result in his or her/their liability for the cost of providing public safety services (i.e., fire, ambulance, sheriff, or other emergency providers). The requirement of a first warning does not limit the ability of the public safety personnel to issue a civil citation for the imposition of civil penalties for cost recovery on the same day that the warning is given if the warning does not end the loud or unruly gathering. The cost recovery for public safety responses shall be separate and distinct from a citation and fine for a civil violation described in subsection A of this section.

1. The amount of cost recovery under this subsection shall be calculated pursuant to 9.42.040, definition of Public safety services, of this chapter.

2. In the event that the responsible person who is in violation of this section is a juvenile, then the juvenile and the parents or guardians of that juvenile shall be jointly and severally liable for the imposition of civil penalties for the cost of providing public safety services.

3. Civil cost recovery penalties will not be imposed in those situations where those present at the gathering call for emergency services for an actual emergency at the premises.

C. Administrative Penalties. Taking into consideration the age and/or financial ability of the responsible person(s) to pay, the Hearing Officer may impose, in addition to or in lieu of civil fines and/or cost recovery penalties in subsections A and B of this section:

1. Community service work on behalf of the City; and/or

2. Training or classes that are relevant to the legislative purpose and findings of this chapter as set forth in Sections 9.42.020 and 9.42.030;

3. Failure to complete the administrative penalties as directed will result in that penalty or penalties being converted to civil fines and/or cost recovery penalties as set forth herein without further right to appeal.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

A. Request for Administrative Hearing. Any person subject to a civil fine pursuant to Section 9.42.050(A) or subject to a civil cost recovery penalty for public safety responses pursuant to Section 9.42.050(B) shall have a right to request a hearing within fifteen days from the date of service of the notice of the issuance of a citation for a civil fine and/or civil cost recovery penalty as specified in this chapter. To request such a hearing, the person requesting the hearing shall obtain a "request for hearing" form from the City Clerk and return it fully completed within fifteen days from the date of service of the notice of civil fine and/or civil cost recovery penalty. The notice of the issuance of a citation shall notify the person of the right to request a hearing and the procedures for doing so.

1. The City Clerk shall refer any request for a hearing to a neutral Hearing Officer. The neutral Hearing Officer shall set a date for the hearing not less than fifteen days nor more than sixty days from the date the "request for hearing" form is filed with the City Clerk, unless the Enforcement Officer determines that the matter is urgent or that good cause exists for an extension of time, in which case the date for such hearing may be shortened, or extended, as warranted by the circumstances.

B. Conduct and Determination of Administrative Hearing. A hearing under authority of this section shall be conducted according to the procedures set forth in this subsection. The failure of any responsible party to appear at the hearing shall constitute a waiver of the right to such hearing and a failure by such party to exhaust their administrative remedies.

1. When a request for hearing is filed, the Enforcement Officer shall set the time and place for the hearing pursuant to Section 9.42.055(A)(1), and shall serve a "notice of hearing" by regular mail to the person(s) requesting the hearing at the address provided in the "request for hearing" form. The time for such hearing shall be no sooner than ten days from the date of such notice of hearing.

2. At the place and time set forth in the notice of hearing the Hearing Officer shall conduct a hearing on the imposition of the civil fine and/or civil cost recovery penalty. The Hearing Officer may consider any written or oral testimony and evidence regarding the violation or penalty presented by the alleged violator, the owner, any officer, employee, or agent of the City, and any interested party.

3. After receiving all of the evidence presented, the public portion of the hearing shall be closed. The Hearing Officer may deliberate and consider what action, if any, should be taken, or may adjourn the hearing and take the matter under consideration.

4. Within thirty days following the conclusion of the hearing, the Hearing Officer shall issue written findings and make a determination regarding the imposition of the civil fine and/or civil cost recovery penalty. If the Hearing Officer finds by a preponderance of the evidence that the imposition of the civil fine and/or civil cost recovery penalty is valid, the Hearing Officer shall issue its decision, including any administrative order, in accordance with Section 9.42.055C of this section. If the Hearing Officer finds that the imposition of the civil fine and/or civil cost recovery penalty is not valid, the Hearing Officer shall issue a decision with written findings of those facts.

5. The person(s) requesting a hearing shall be served with a copy of the decision of the Hearing Officer, including any administrative order if one is issued, personally or by registered or certified U.S. mail, and if by registered or certified U.S. mail to the person(s) requesting a hearing last known address listed on the most recent tax assessor's records. In the case of personal service, service shall be deemed complete at the time of such delivery. In the case of service by registered mail or certified mail, service shall be deemed complete at the time of deposit into the United States mail.

C. Judicial Appeal of Administrative Decision. The Hearing Officer considering the imposition of the civil fine and/or civil cost recovery penalty may confirm, vacate, or modify but shall not increase, any such fine and/or penalty imposed by the Enforcement Officer, and order the payment thereof.

1. The decision shall state that the person to whom a civil fine and/or civil cost recovery penalty is imposed may appeal the decision of the Hearing Officer in Alameda County Superior Court pursuant to California Government Code Section 53069.4. Any such appeal shall be filed as a limited civil case. The decision shall provide written notice of the time limits prescribed by California Government Code Section 53069.4 in substantially the following form:

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

The amount of a civil fine and/or civil cost recovery penalty for public safety responses shall be deemed a debt owed to the City by the person(s) found in violation of Section 9.42.050 and therefore liable for a fine under Section 9.42.050(A) and/or penalties under Section 9.42.050(B), and if that person is a juvenile, then also his or her parents or guardians. Any person owing such fine and/or penalties shall be liable in an action brought in the name of the City for recovery of such fine and/or penalties. These recovery costs may include reasonable attorney fees incurred in the action if the City prevails, as the City reserves the right to seek to recover reasonable attorney fees, on a case by case basis, pursuant to California Government Code Section 38773.5. In those cases in which the City seeks to recover reasonable attorney fees, the other party may likewise do so.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

If any provision of this section or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect any other provision or application, and to this end the provisions of this section are severable.

The civil fines and penalties imposed by this chapter do not preclude other potential civil actions or criminal prosecution under any other provision of law, including, but not limited to, Penal Code Sections 272 and 415 and Business and Professions Code Sections 25658, 25658.2 and 25662.

This chapter shall not be interpreted in any manner that conflicts with the laws or constitutions of the United States or the State of California.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

A loud or unruly gathering at a residence or other private property at which service to or consumption of alcohol or alcoholic beverages by underage persons occurs constitutes a public nuisance and an immediate threat to public health and safety and shall be summarily abated by the Police Chief by all reasonable means including, but not limited to, an order requiring the gathering to be disbanded and citation under this chapter as well as citation and/or arrest of any law violators under any other applicable ordinances and State statutes.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)

Nothing in this chapter shall be construed as a waiver by the City of Union City of any right to seek reimbursement for actual costs of response services through other legal remedies or procedure.

(Ord. 689-07 § 1, 2007; Ord. 699-08, 2008)