Whittier Municipal Code Ch. 9.56 Cost Recovery Program for Second Responses

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 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.

C. The purpose of this chapter is to identify activities which constitute a public nuisance, to provide for the summary abatement of such a nuisance 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. 2603 § 1 (part), 1993)

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

1. Owner(s) and/or lessee(s) of the property where a party is being given;

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 a minor who is also a host.

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 property. The term "person" includes person responsible for the event.

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 city of Whittier or his/her designee(s).

F. "Police services" includes, 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 incident, 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, and attorneys' fees.

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 or 415 of the California Penal Code, and (3) Section 8.32.030 of the Whittier 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 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 of 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. 2869 § 32, 2006; Ord. 2603 § 1 (part), 1993)

(Ord. No. 3112, § 2, 2-25-20)

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 Whittier pursuant to Title 5 of the Municipal Code of the city of Whittier;

C. Any activity or noise for which a variance or permit has been granted pursuant to Title 18 of the Municipal Code of the city of Whittier;

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

(Ord. 2603 § 1 (part), 1993)

A. It shall be unlawful for any person to conduct or allow to be conducted any party where there is loud and unreasonable noise if such noise is sufficiently loud and unreasonable in volume level, duration and character to maliciously and wilfully disturb the comfort, health, peace, safety or repose of reasonable person(s) of ordinary sensibilities.

B. Continuation of an activity prohibited by this section after notification by a peace officer that the activity is disturbing the peace, shall be prima facie evidence of malicious and wilful intent.

(Ord. 2603 § 1 (part), 1993)

A. The chief of police is directed to enforce the provisions of this chapter. Nothing herein shall affect the authority of the chief of police and his/her officers to make lawful arrests at any time, including on the first response to a disturbance constituting a nuisance as defined in this chapter.

B. The first response and warning shall be deemed to be normal police service. On the first response to a disturbance, the Whittier 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.

C. 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 he/she is present, and/or the owner of the property if he/she is 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 Whittier police department is required to expend additional manhours 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. A notice of first response of disturbance shall be in written form substantially as follows:

Notice of First Response—Disturbance

This NOTICE OF VIOLATION given to:

_______ (name)

_______ (DOB)

at _______ (location)

_______ (phone number)

on _______ (date)

at _______ (time) is the result of a disturbance in violation of: (1) Chapter 9.56 of the Whittier Municipal Code. (2) California Penal Code Section 407/415/416, or (3) Chapter 11 of Title 7 of Part 1 of the California Penal Code.

If it is necessary for the Whittier Police Department to respond a second or subsequent time to the premises or location to stop similar or continuing disturbances at this location, the owner of the property and the occupant of the property may be assessed civil penalties for the cost of providing special police services incurred in such second or subsequent responses. All violators of statutes or ordinances will be subject to arrest and/or citation.

_______(time)

_______(date)

___________

(Signature of host/hostess to whom notice is given - time - date)

_______(time)

_______(date)

_______

(Signature and badge # of police officer who issued notice - time - date)

A minimum charge of seventy-five dollars shall be assessed if a second response is requested as a result of a disturbance at this location.

(Ord. 2603 § 1 (part), 1993)

(Ord. No. 3112, § 2, 2-25-20; Ord. No. 3120, § 22, 7-28-20)

A. 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 herein may simply be posted in any conspicuous, visible outdoor location near any entrance to the premises.

B. 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.

(Ord. 2603 § 1 (part), 1993)

If the location of the disturbance that requires police department response is a public building, then the responsible person for the purposes of this chapter will be the person renting the building.

(Ord. 2603 § 1 (part), 1993)

A. If, after giving the notice of first response of disturbance, the chief of police receives any additional complaints about a disturbance at the same location on the date specified in the Notice of First Response - Disturbance or within a twenty-four hour period commencing after the first response and warning, officers shall respond again to the location of the disturbance. Once confirmed that this is a second or subsequent disturbance complaint response, a supervisor shall be notified of the noise complaint and the number of officers, equipment and time spent on these additional response(s). If the responding officers determine that the disturbance continues to constitute a public nuisance as described in this chapter and poses an immediate threat to the public peace, health, safety or general welfare, the officers shall take appropriate actions to immediately abate the public nuisance, including arrest and/or citation of persons violating the law, closure and dispersal of any party.

B. Utilization of police personnel during any response after the first warning to any party or to control the threat to the public peace, health, safety or general welfare shall be deemed to be a special police assignment over and above the services normally provided.

C. In those situations which require the police to respond on additional occasions, reports and documentation will be prepared. Such documentation will include such information as to number of personnel utilized, time resources expended to control the event, host/hostess identification, victims' names, witnesses' names, etc. Reports and documentation will be forwarded to the services division commander who will prepare administrative reports as to actual police department costs incurred by response to the disturbance. All documentation will then be forwarded to the city attorney's office for prosecution and cost recovery efforts.

(Ord. 2603 § 1 (part), 1993)

A. When a party occurs in violation of this chapter and a police officer, pursuant to Section 9.56.080, determines that there is a threat to the public peace, health, safety or general welfare, and that the disturbance continues to constitute a public nuisance, the host/hostess responsible for the event shall be held liable for the cost incurred of providing police services for the special security assignment by the police, at any time within twenty-four hours after a written warning is issued to control the threat to the public peace, health, safety or general welfare.

B. Notwithstanding any other provision of this chapter, the city shall be authorized to recover the cost incurred when its police department, pursuant to the provisions of Section 9.56.080, responds a second time within a consecutive twenty-four-hour period to any party or other assemblage of persons within the city. In addition, the costs of such special assignment may result in a lien against the property on which the nuisance was maintained and shall be a personal obligation against the property owner as here set forth if:

1. The owner, host/hostess and/or other person in possession of the premises has, at the time of the first response, been delivered a written notice as previously described in Section 9.56.050; and

2. There is probable cause by police to believe that a violation of California Penal Code Section(s) 407, 415 or 416, Chapter 11 of Title 7 of Part 1 of the California Penal Code or Whittier Municipal Code Section 9.20.010 has occurred on the premises anytime after first responding.

C. The cost of such special police services may include all costs incurred by the city of Whittier, including reasonable administrative costs and overhead, in providing such law enforcement services. Costs may include damage to city property, and/or injuries to city personnel and attorneys' fees.

D. The costs provided for in this section shall be computed by the city and shall be forwarded in the form of an invoice sent by first class mail to the person or persons responsible for the event at the time of the police responses. The bill shall apprise the person or persons responsible for the event that failure to pay the bill may result in a lien on the property on which the nuisance was maintained and shall be a personal obligation against the property owner.

E. The amount of such fees charged shall be deemed a debt to the city, due and payable by the person(s) responsible for the disturbance and, if minors, their parent(s) or legal guardian(s). Any person owing money shall be liable to the city in any court of competent jurisdiction in an action brought in the name of the city for recovery of the amount of the costs billed in accordance with the provisions of this chapter.

F. The city does not waive its right to seek reimbursement for actual costs 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. 2638 § 4, 1994; Ord. 2603 § 1 (part), 1993)

(Ord. No. 3120, § 23, 7-28-20)

A. The costs provided in this chapter shall be collected in the following manner:

1. Copies of the initial first response warning, the second response voucher and any additional vouchers shall be forwarded to the Whittier city controller where the cost of special security assignment services shall be computed and an amount assessed which reflects the actual costs of services rendered as established by resolution of the city council of the city of Whittier.

(Ord. 2603 § 1 (part), 1993)

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.

(Ord. 2603 § 1 (part), 1993)

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 calendar days after the invoice becomes final or the hearing officer confirms the invoice or after the invoice has been confirmed by the board of appeals, the city controller shall take appropriate steps to collect the amount set forth in the invoice from the occupant of the property, including causing a lawsuit to be filed on behalf of the city of Whittier against the occupant for the amount set forth in the invoice.

(Ord. 2603 § 1 (part), 1993)

When the full amount due to the city for second or subsequent response costs, as set forth in this chapter, is not paid by the person or persons responsible therefore within thirty calendar days of the date of the billing for such costs, the chief of police shall file with the city clerk a sworn or certified statement showing the response costs incurred, the date costs were incurred and the location of the property to which the response was made. The recordation of such a sworn or certified statement with the county recorder shall constitute a lien on the property. The remedy provided in this section shall not constitute an election of remedies by the city.

(Ord. 2603 § 1 (part), 1993)

(Ord. No. 3112, § 4, 2-25-20)

A. The invoice shall notify the host that a hearing to respond in opposition to the proposed action shall be available if such written request is received by the chief of police within thirty calendar days of the billing for such posts. The request protesting payment 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 host shall be permitted to present any evidence or argument challenging the invoiced amount or liability for any amount.

B. If a written request protesting payment of the amount set forth in the invoice is received within thirty days, a reasonably impartial and involved reviewer (hereinafter referred to as hearing officer) shall conduct a hearing within an additional sixty calendar days after receipt of the written request protesting payment on a date set by the hearing officer. The city manager or his/her designee shall appoint a hearing officer who shall possess the authority to recommend a final disposition of the matter.

C. Said notice of the hearing shall be personally served if possible. If personal service is not possible, the notice of hearing shall be served to the owner of the property as shown on the latest equalized assessment roll and to the occupant of the property at the address of the property by certified mail, return receipt requested. All notices required under this subsection shall be served at least thirty days in advance of the hearing and shall contain a copy of all the charges, reports and documentation upon which the invoice is based.

D. At the time fixed for the hearing, the hearing officer shall consider the cost abatement statements, the protest and objections raised by the protesting party or parties, and shall hear the testimony of all competent persons desiring to testify pertaining to the costs of abating the public nuisance and any other pertinent matters, subject to reasonable limitations of cumulative testimony and other procedures as may be set forth.

E. The hearing officer may revive, correct or modify the invoice as he/she considers just and thereafter shall confirm the invoice. The hearing officer shall excuse the owner or the occupant of the property from payment of the amount set forth in the invoice if the hearing officer determines that the owner or occupant was not in possession of the property at the time of the disturbance or could not have reasonably prevented the disturbance, unless the person responsible for the disturbance was the minor child of the owner or occupant of the property. The hearing officer shall excuse the owner or occupant of the property from the payment set forth in the invoice if the hearing officer determines that the owner or the occupant took reasonable steps to stop the disturbance following the first response by the Whittier police department.

F. The decision of the hearing officer shall be served by certified mail, return receipt requested, within thirty calendar days after the conclusion of the hearing. Upon mailing, the decision shall be final and is subject to city council review only.

H. The final decision of the hearing officer may be appealed to the city council by the owner or the occupant of the property or by any member of the city council. The city council shall constitute the board of appeals for any decision of the hearing officer. Notice of the appeal to the board of appeals shall be filed with the city clerk within thirty calendar days after the decision of the hearing officer is final. A late notice of appeal will not be considered. Questions raised during the appeal process to the board of appeals shall be limited to those issues raised in the notice of appeal as set forth in subsection A of this section. The board of appeals shall conduct a hearing within an additional sixty calendar days after timely filing of the notice of appeal with the city clerk. The board of appeals reserves the right to postpone a scheduled hearing upon good cause. The hearing officer shall give notice of the hearing by the board of appeals not less than thirty calendar days prior thereto.

I. The filing of a timely notice of appeal shall stay further proceedings until the board of appeals has made its determination.

J. The board of appeals may uphold, reverse or modify any final determination appealed from. The decision of the board of appeals shall become final and conclusive as to all matters in controversy upon service thereof by registered mail upon those persons aggrieved. Upon denial of an appeal, the appellant(s) shall have thirty 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 to place a lien upon the affected property.

(Ord. 2603 § 1 (part), 1993)

(Ord. No. 3112, §§ 2, 4, 2-25-20)

If the owner of the property does not pay the amount set forth in the invoice within thirty calendar days after the invoice becomes final or the hearing officer confirms the invoice, or after the invoice has been confirmed by the board of appeals, whichever is later, the city clerk shall order that the amount set forth in the invoice shall become a special assessment against the property on which the public nuisance was abated and that a notice of lien be filed. The assessment shall continue until it is paid, together with interest at the rate established by city council resolution, computed from the date of confirmation of the invoice until payment. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and it shall be subject to the same penalties, procedures and sale in case of delinquency as provided for ordinary taxes. All acts applicable to levy, collection and enforcement of property taxes shall apply to this special assessment.

(Ord. 2638 § 5, 1994: Ord. 2603 § 1 (part), 1993)

(Ord. No. 3112, § 4, 2-25-20)

In the event of an assessment pursuant to Section 9.56.150, the city clerk shall cause to be filed in the office of the county recorder a notice in substantially the following form:

Under the authority of California Government Code Sections 38771 through 38773.5, the City of Whittier did on _______, 19___, abate a nuisance upon the real property hereinafter described and then on _______, 19___, did assess the cost of the abatement not to exceed $___ upon the real property. The record owner of such property is _______ (name and address). The City of Whittier claims a special assessment on the real property for the cost of the abatement in the amount of $___. This amount is a special assessment against the real property until it is paid, with interest at the rate of seven (7%) percent per year from _______, 19___ (insert date of confirmation of invoice). The real property referred to above, and upon which the special assessment is claimed, is that certain parcel of land situated within the County of Los Angeles, State of California, more particularly described as follows: _____

_____

_____

(Ord. 2603 § 1 (part), 1993; Ord. No. 3112, § 4, 2-25-20)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The city council of the city of Whittier hereby declares that it would have adopted the ordinance codified in this chapter and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

(Ord. 2603 § 1 (part), 1993)