HomeMy WebLinkAbout09- City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman, City Attorney Subject: ORDINANCE OF THE MAYOR AND
COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO ADDING
CHAPTER 8.83 TO THE SAN
BERNARDINO MUNICIPAL CODE
REGARDING ACCOUNTABILITY FOR
SOCIAL HOSTS OF MINORS
Dept: City Attorney MCC Date: July 18, 2011
Date: July 11, 2011
Synopsis of Previous Council action:
On June 21, 2011 the Legislative Review Committee heard the item and recommended it for approval to the
full Council.
Recommended motion: That said ordinance be laid over for final adoption.
Signature
Contact person: James F. Penman Phone: 5255
Supporting data attached: Staff report and Ordinance Ward: All
FUNDING REQUIREMENTS: Amount: N/A
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes: 7/I 5?-/// *-2y
Ozid /14L4- /36/
75-0262
Agenda Item No._
STAFF REPORT
Council Meeting Date: July 18, 2011
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: July 11, 2011
AGENDA: July 18, 2011
The Mayor's Office, the San Bernardino Police Department(SBPD),the City Attorney's
Office and the San Bernardino County Department of Public Health's Alcohol and Drug Abuse
Prevention Program partnered last year to enact a Deemed Approved Ordinance (DAO)to
regulate establishments selling alcoholic beverages in the City of San Bernardino. The follow-up
effort continues and the City Attorney's Office is working on the first enforcement referral from
the SBPD.
Initially, the DAO and the Social Host Ordinance (SHO) were both considered and it was
determined that we would proceed with the DAO first, and then consider a Social Host
Ordinance once the DAO was in place.
After considerable work/discussions by and between Officer Jesse Ludikhuize (SBPD),
Ameila Lopez at the County Health Department's Alcohol and Drug Abuse Prevention Program,
Kent Paxton in the Mayor's Office and Assistant City Attorney Jolena Grider, we have drafted an
Ordinance that will hold Social Host's responsible for alcohol and drug use by minors at parties
and gatherings.
The Ordinance will make it a misdemeanor for any person having control of a premises
("Social Host") to allow, whether they know or reasonably should know, minors to consume an
alcoholic beverage, marijuana or other controlled substance. It also requires the Social Host to
take preventative steps to ensure that no minor consumes alcohol, marijuana or other controlled
substances at a gathering/party.
Violation of this Ordinance is punishable by up to 6 months in jail and/or a$1,000.00
fine. Violations may also be punished through any process or procedure allowed by the San
Bernardino Municipal Code.
I ORDINANCE NO. COPY
2 ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADDING CHAPTER 8.83 TO THE SAN BERNARDINO MUNICIPAL
3 CODE REGARDING ACCOUNTABILITY FOR SOCIAL HOSTS OF MINORS
4 WHEREAS,the City of San Bernardino,pursuant to the police powers delegated to it by
5 the California Constitution,has the authority to enact laws which promote the public health,safety
6 and general welfare of its residents; and
7 WHEREAS, The City Council of the City of San Bernardino finds that parties, social
8 gatherings or events on private property where alcoholic beverages,marijuana and other controlled
9 substances are served to or consumed by minors are harmful to the minors themselves and a threat
10 to public health, safety and welfare and the quiet enjoyment of the City's residents; and
11 WHEREAS, minors often obtain alcoholic beverages, marijuana and other controlled
12 substances at gatherings held at private residences or other private property, places or premises,
13 including rented commercial premises, which are under the control of a person who knows or
14 should know of the consumption of alcoholic beverages,marijuana and other controlled substances
15 by minors; and
16 WHEREAS,persons responsible for the occurrence of such gatherings often fail to take
17 reasonable steps to prevent the consumption of alcoholic beverages,marijuana and other controlled
18 substances by minors at these gatherings; and
19 WHEREAS,control of gatherings on private property where alcoholic beverages,
20 marijuana or other controlled substances are consumed by minors or where unruly or illegal
21 behavior occurs is necessary when such activity is determined to be a threat to the health, safety or
22 general welfare of the public; and
23 WHEREAS,problems associated with gatherings where alcoholic beverages,marijuana
24 or other controlled substances are consumed by minors or which produce nuisances are difficult
25 to prevent and deter unless the City,through its Police Department,has the legal authority to arrest
26 or otherwise penalize offenders and direct the host to disperse the gathering; and
27 WHEREAS the P '
Police Department's ability to abate such gatherings will result in a
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1 decrease in abuse of alcohol, marijuana and other controlled substances by minors; physical
2 altercations and injuries; neighborhood vandalism; and excessive noise disturbances, thereby
3 improving public safety and welfare; and
4 WHEREAS, it is the intent of the Council to hold accountable any person having control
5 of any residence who hosts,permits or allows a gathering to take place which results in unruly or
6 illegal conduct by its attendees or produces a public nuisance.
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8 NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
9 SAN BERNARDINO DO ORDAIN AS FOLLOWS:
10 SECTION 1. Chapter 8.83 is hereby added to the San Bernardino Municipal Code to
11 read as follows:
12 Chapter 8.83
13 SOCIAL HOST ACCOUNTABILITY
14 8.83.010 Definitions.
15 The words and phrases used in this Chapter have the meanings set forth in this section.
16 (A) "Alcohol" means any ethyl alcohol, hydrated oxide of ethyl, or spirits of wine,
17 from whatever source or by whatever process produced.
18 (B) "Alcoholic beverage"includes alcohol,spirits,liquor,wine,beer and every liquid
19 or solid containing alcohol, spirits,wine, or beer, and which contains one-half of
20 one percent or more of alcohol by volume and which is fit for beverage purposes
21 either alone or when diluted, mixed, or combined with other substances.
22 (C) "Controlled Substance"means a drug or substance whose possession and use are
23 regulated under the Controlled Substance Act. Such term does not include any
24 drug or substance for which the individual found to have consumed such
25 substance has a valid prescription issued by a licensed medical practitioner
26 authorized to issue such a prescription.
27 (D) Gathering is a party,gathering,or event where a group of three or more persons
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1 have assembled or are assembling for a social occasion or social activity.
2 (E) "Guardian" means: (1) a person who, under court order, is the guardian of a
3 minor; or (2) a public or private agency with whom a minor has been placed by
4 the court.
5 (F) "Minor" means any person under the age of 21 years of age.
6 (G) "Parent"means a person who is the natural parent, adopted parent,or step-parent
7 of a minor.
8 (H) "Person Responsible" means the person that knows or should reasonably know
9 that the subject premises are being used to host, allow, or permit a gathering.
10 Such person(s) shall rebuttably be presumed to be, in order of priority:
11 (1) The owner(s) of the premises where the gathering takes place;
12 (2) The tenant(s) of the premises where the gathering takes place;
13 (3) The person(s) who hosted, permitted, or allowed the gathering;
14 and/or
15 (4) In the event that the person responsible is a minor, then the
16 parent(s) or guardian(s) of that minor.
17 (I) "Extraordinary Law Enforcement Fee"is the actual cost associated with response
18 by law enforcement, fire and other emergency response providers to a gathering,
19 including,but not limited to: (1)actual salaries and benefits of law enforcement,
20 fire, or other emergency response personnel for the amount of time spent
21 responding to, remaining at, or otherwise dealing with a gathering, and the
22 administrative costs attributable to such response; (2) the actual cost of any
23 medical treatment for any law enforcement, fire, or other emergency response
24 personnel injured responding to, remaining at, or leaving the scene of the
25 gathering; (3) the actual cost of repairing any City equipment or property
26 damaged, and the actual cost of the use of any such equipment, in responding to,
27 remaining at,or leaving the scene of a gathering; and(4)any other allowable and
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1 reasonable costs related to the enforcement of this Chapter 8.83.
2 (J) "Extraordinary Law Enforcement Services" means the assignment of police
3 officers and services during a second or subsequent call to a gathering after the
4 distribution of a written notice that the gathering violates the law, or a first
5 response if it is determined pursuant to Chapter 8.82 that notice is infeasible.
6 (K) "Public Place"means any place to which the public or a substantial group of the
7 public has access and includes, but is not limited to, streets, highways, and
8 common areas of schools,hospitals,apartment houses,office buildings,transport
9 facilities and shops.
10 8.83.020 Consumption Unlawful.
11 Except as permitted by state law, it is unlawful for any minor to:
12 (A) Consume at any public place or any places open to the public, any
13 alcoholic beverage, marijuana or controlled substance; or
14 (B) Consume at any place not open to the public any alcoholic beverage,
15 unless in connection with the consumption of an alcoholic beverage that
16 minor is being supervised by his or her parent or legal guardian.
17 8.83.030 Hosting, Permitting, or Allowing a Gathering Where Minors Consuming
18 Alcoholic Beverages, Marijuana and Other Controlled Substances Prohibited.
19 A. Except as permitted by state law, it is unlawful for any person having control of
20 any premises who knows or should reasonably know that he or she has hosted,
21 permitted,or allowed a gathering to take place at said premises,where at least one
22 minor consumes an alcoholic beverage, marijuana or other controlled substance
23 whenever the person having control of the premises either knows or reasonably
24 should have known a minor has consumed an alcoholic beverage, marijuana or
25 other controlled substance to allow said consumption to occur.
26 B. It is the duty of any person having control of any premises,who knows or should
27 know that he or she has hosted,permitted,or allowed a gathering at said premises
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1 to take all reasonable steps to prevent the consumption of alcoholic beverages,
2 marijuana or other controlled substance by any minor at the gathering.
3 Reasonable steps include, but are not limited to the following:
4 1. Controlling access to alcoholic beverages, marijuana and other
5 controlled substances at the gathering;
6 2. Controlling the quantity of alcoholic beverages, marijuana and
7 other controlled substances at the gathering;
8 3. Verifying the age of persons attending the gathering by inspecting
9 drivers licenses or other government issued identification cards to
10 ensure that minors do not consume alcoholic beverages,marijuana
11 or other controlled substances while at the gathering; and
12 4. Supervising the activities of minors at the gathering.
13 C. Whenever a person having control of a premises is present at the premises at the
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!; 14 time that a minor possesses or consumes any alcoholic beverage, marijuana or
15 other controlled substance thereon, it shall be prima facie evidence that such
16 person had or should have had the knowledge specified in Subsection (A).
17 D. A person who hosts,permits or allows a gathering shall be deemed to have actual
18 or constructive knowledge that minor has consumed or possessed alcoholic
19 beverages,marijuana or other controlled substances if the person has not taken all
20 reasonable steps to prevent the consumption or possession of alcoholic beverages,
21 marijuana or other controlled substances by minors as set out in Subsection(B).
22 E. A person who hosts,permits or allows a gathering may be liable for Extraordinary
23 Law Enforcement Fee if Extraordinary Law Enforcements Services are necessary
24 to handle the gathering.
25 F. A person who hosts,permits or allows a gathering shall not be in violation of this
26 Chapter if he or she seeks immediate assistance from the San Bernardino Police
27 Department or other law enforcement agency to remove any person who refuses
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1 to abide by the hosts' performance of the duties imposed by this Chapter or
2 terminate the gathering because the host has been unable to prevent minors from
3 consuming or possessing alcoholic beverages, marijuana or other controlled
4 substance despite taking all reasonable steps to do so, as long as such request I s
5 made before any other person makes a complaint about the gathering.
6 8.83.040 Chapter Shall Not Apply.
7 A. This Chapter shall not apply to any location or place regulated by the California
8 Department of Alcohol and Beverage Control.
9 B. This Chapter shall not apply to conduct involving the use of alcoholic beverages
10 that occurs exclusively between a minor and his or her parent or guardian as
11 permitted by Article I, Section 4 of the California Constitution.
12 8.83.050 Violation- Penalty.
13 A. Any person violating any provision of this Chapter is guilty of a misdemeanor
14 which, upon conviction thereof, is punishable in accordance with the provisions
15 of Section 1.12.010 of the Code.
16 B. Violation of this Chapter may be enforced or punished in any manner prescribed
17 by law, or through any other process or procedure allowed by this Code or any
18 other applicable law.
19 8.83.050 Severability.
20 The provisions of this Chapter are severable,and if any sentence,section,or other part of
21 this Chapter should be found to be invalid,such invalidity shall not affect the remaining provisions,
22 and the remaining provisions shall continue in full force and effect.
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1 ORDINANCE OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ADDING CHAPTER 8.83 TO THE SAN BERNARDINO MUNICIPAL
2 CODE REGARDING ACCOUNTABILITY FOR SOCIAL HOSTS OF MINORS
I HEREBY CERTIFY that the foregoing ordinance was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a meeting thereof,held
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on the day of , 2011, by the following vote, to wit:
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COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
6
MARQUEZ
7
VACANT
8
BRINKER
9
SHORETT
10
KELLEY
11
JOHNSON
12
MCCAMMACK
13
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15 Rachel G. Clark, City Clerk
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The foregoing ordinance is hereby approved this_day of , 2011.
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20
PATRICK J. MORRIS, Mayor
21 City of San Bernardino
22 Approved as to form:
23 JAMES F. PENMAN,
City Attorney
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25 By:
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