HomeMy WebLinkAbout22 - 4th of July Analysis of Police OperationsCITY OF NEWPORT BEACH
POLICE DEPAIRTMENT
August 23, 1999
August 23, 1999
Agenda Item No. 22
To: Honorable Mayor, Members of the City Council and City Manager
From: Bob McDonell, Chief of Police
Subject: Analysis of Police Operations — July 4, 1999
RECOMMENDATION
Review the contents of this report and provide staff direction on which (if any) areas of
focus Council would like brought back for possible implementation prior to July 4`n
2000.
OVERVIEW OF POLICE ACTIVITIES
Planning for this year's July 4"' deployment commenced with staff critiques of last year's
operation. During the months leading up to July 4t', preparations proceeded in
accordance with an operational plan that was developed in the late 1970's and has
been employed routinely and effectively since that time. The plan calls for near total
deployment of Department personnel and resources, supplemented by law
enforcement assistance provided by the Orange County Sheriff's Department and the
California Highway Patrol under contract.
As the Huntington Beach Police Department deals with problems similar to those faced
by our Department, mutual aid plans were established by which either agency could
assist the other should the need develop. Fortunately, neither agency needed to
implement the plan.
In addition to routine patrol coverage, additional personnel were deployed to problem
areas in numbers sufficient to deal effectively with whatever problems might develop.
Except for a small team of plainclothes officers, all personnel were assigned to uniform
duties for the purpose of creating a highly visible presence. Deterrence and prevention
are given high priority in our operational plan.
We experienced a marked increase in activity and problems over last year. This
increase is reflected in the rise in enforcement indicators (see "Enforcement
Summary"). While the precise causes of this may be difficult to discern, it is reasonable
to wonder if several years of very overt enforcement activity by the Huntington Beach
Police Department might have encouraged some people to come to Newport Beach
instead. If this speculation is accurate, it is also reasonable to assume that the type of
person who chose to avoid Huntington Beach, was the type of person who also wished
to avoid the enforcement environment created there. By this, I refer to that element of
Analysis of Police Operations — July 4, 1999
Page 2
people who are inclined to violate the law and /or be disruptive. If this line of reasoning
is valid, it could have implications in the immediate future for dealing with July 4
activities. The closure of a large section of Huntington State Beach due to pollution
may have also caused an increase in the number of visitors to our City.
On a more optimistic note, July 4, 2000 falls on a Tuesday. Our past experience
indicates that the Fourth falling on a weekday represents fewer problems than were it to
occur Friday through Sunday. Nevertheless, our planning and preparations will make
allowances for "worst case" scenarios.
ENFORCEMENT SUMMARY
Beginning last year, we established a uniform definition of "July 4m" for the purpose of
historical comparison of enforcement activities. While the deployment of personnel
may vary from year to year due to the day of the week on which the holiday falls, the
parameters we have established effectively capture the bulk of holiday - related
enforcement activity. Our July 4th deployment period begins at 4 p.m. on July 3`d and
concludes at 6 a.m. on July 5m. Along with the enforcement statistics for this year,
1998 information is included for comparison purposes.
Arrests
Citations
Disturbance
Advisements
Note:
1999
1998
Felony 15
Felony 14
Misdemeanor 169
Misdemeanor 113
Total 184
Total 127
1999
1998
B &P*
86
B &P
74
H &S **
9
H &S
18
Muni Code
356
Muni Code
333
Vehicle Code
139
Vehicle Code
119
Fireworks
13
Fireworks
16
Parking
814
Parking
621
Total
1417
Total
11181
1999
51
1998
[CIO]
* B &P refers to the California Business and Professions Codes. Almost all citations issued
pursuant to this code relate to minors in possession of alcohol or false identification.
** H &S refers to the California Health and Safety Code. Most citations issued pursuant to
this code relate to possession to marijuana.
Analysis of Police Operations — July 4, 1999
Page 3
10 TRAFFIC MANAGEMENT
As in recent years, the traffic control plan for the West Newport area involved the
installation of barricades prohibiting vehicular traffic on West Balboa Boulevard
between 32nd Street and West Coast Highway, Seashore Drive, and the adjoining 100
blocks of streets connecting Seashore Drive and Balboa Boulevard in that area.
Although this plan involves some inconvenience for residents in the impacted area, it
has proven to be the most effective means of dealing with the large numbers of
pedestrians, bicyclists, rollerbladers, skateboarders and others who descend upon the
area each July 4w.
The California Highway Patrol contingent consisted of eight motor officers assigned to
enforcement duties, along with thirteen officers assigned to man six barricades. One
Highway Patrol sergeant was assigned to supervise the detail.
The barricades were installed by General Services personnel with the process
completed on schedule at approximately noon. 'The barricades remained in place until
the crowds began to diminish at which time they were removed and the previously
closed streets opened to vehicular traffic. This year that occurred at approximately 1:00
a.m. As noted earlier, we understand that the street closures represent an
inconvenience for the residents of the closed areas. While we remain open to
suggestions, no alternative has yet been advanced that would accomplish the task as
effectively.
The fireworks display at Newport Dunes continues to present significant problems with
traffic flow and illegal parking. Although relatively brief in duration, the congestion along
Coast Highway and Jamboree Road was severe. As noted in last year's report, this
problem defies a simple solution, short of prohibiting the display. Since this would
almost certainly be unacceptable to the community, we will continue to deal with the
traffic problems as best we can. This year, Back Bay Drive was closed to minimize the
congestion on that section of roadway.
DEPARTMENT SUPPORT ACTIVITIES
As part of our long- standing operational plan, a Command Post was established at City
Hall. This temporary arrangement provided invaluable support as a field booking facility
and communications center. It also served as a convenient and secure location for the
stockpiling of supplies, the care of personnel, and for the general coordination of
efforts.
The field booking facility was staffed with NBPD personnel assisted by a contingent of
Orange County Sheriff's deputies, whose services were secured by contract with the
County. These deputies served as either part of a field booking team or staffed
transportation vehicles. As they do each year, the Sheriff's personnel provided valuable
Analysis of Police Operations — July 4, 1999
Page 4
assistance. Their services are vital to the efficient processing and transportation of
prisoners.
Other Department support units functioned professionally and efficiently.
Communications, Records and Jail personnel carried heavy workloads and performed
professionally. We did experience some computer problems, particularly in our jail
management system. We are in the process of analyzing these problems to insure that
they do not interfere with operations next year. We believe they were centered around
network access from the City Hall site.
While we have developed a very efficient method of transporting, processing and
releasing prisoners, we identified a problem this year that we will be attempting to
address. We found that we were not able to ascertain the immediate status of a person
in custody at any given moment, based upon some built -in delays in data entry. Having
this knowledge would better enable us to provide helpful information to parents
attempting to pick up juvenile detainees, or to friends or relatives wishing to post bail for
arrestees. We will attempt to improve in this area next year.
SUPPLEMENTAL LAW ENFORCEMENT AND SALARY COSTS
As noted above, supplemental law enforcement assistance was provided by the Orange
County Sheriff's Department and the California Highway Patrol. As of the date this
report was submitted, the Sheriff's Department was unable to provide us with the exact
cost of their services this year, although that information should be available within the
next week. We expect the amount to be similar to the $8,905 charged in 1998. Last
year, the cost of Highway Patrol assistance was $30,089. This year, the Highway
Patrol billed $22,593 for their services. The difference in costs when compared to last
year was the result of the need in 1998 for additional traffic control due to the Arches
Bridge construction project, and the fact that this year, one of the supervisors assigned
went home ill upon reporting for duty.
With regard to Department salary expenditures and as required by MOU provisions,
personnel assigned to work on July 4th receive "premium pay". This negotiated
compromise has allowed us to break with our past reliance on overtime pay, thereby
reducing personnel costs for the deployment. Salary costs this year were $44,665 as
opposed to $81,989 in 1997 and $43,948 last year.
PLANNING OPTIONS FOR NEXT YEAR
Each year following the July 4th deployment, staff discussions take place at all levels of
the organization to identify and analyze problems encountered and to critique the
Department's response to those problems. This process takes on increased
importance this year as we witnessed an increase in activity levels and problem
locations, as opposed to the gradual decrease we have become accustomed to in
recent years. The perceived causes of this have already been addressed.
LI
Analysis of Police Operations —July 4, 1999
Page 5
• In preparation for next year, the following measures have been considered /proposed.
They are the product of our critique process and provide a number of interesting and
innovative approaches to problems noted by personnel in the field. These ideas are
still very preliminary and considerable staff work remains to be done should the Council
consider them worthy of further research or implementation. Our Police Legal Advisor,
Lieutenant Mike Hyams, has conducted preliminary research into those proposals
dealing with legal issues. His analysis accompanies this report as an attachment. The
following information is presented in order that the Council may provide whatever input
and direction the members consider appropriate. While some of the options identified
may not be practical, we left them in the report to demonstrate the range of possibilities
considered, and to perhaps answer questions posed by others reviewing this document.
1. Utilize the administrative citation process for curfew detentions and
other violations related to public intoxication arrests.
Anticipated benefits — Would include recovering some of the costs
involved in the arrest, transportation, processing, and detention of persons
arrested for public intoxication and who are released without charges. It
would also impact those individuals detained for violating the curfew
ordinance. Subjecting persons detained for offenses related to public
intoxication and curfew to the administrative citation process would
• provide a form of deterrent effect that is presently lacking.
Discussion — Persons arrested for public intoxication pursuant to the
provisions of Section 647f of the California Penal Code are subject to
criminal prosecution only if certain specified conditions exist. (In most
cases, it requires multiple offenses before the District Attorney's Office will
file charges.) Most persons arrested under this section are released
without charges as soon as they regain their sobriety, usually after a few
hours in custody.
Research by Lieutenant Hyams (page 1 of his attached report) indicates
that the administrative citation process cannot be applied to persons
arrested under state statutes such as the Penal Code. While persons
violating municipal ordinances may be subject to the administrative
citation process, laws regulating "public intoxication" are pre - empted by
state law. We may, however, utilize the administrative citation process in
cases where a person is detained without charges for public intoxication
and has violated some provision of the municipal code (i.e., drinking in
public, open container, etc.). It should be noted, however, that these
circumstances would be present in a relatively small percentage of our
arrests for public intoxication.
Regarding curfew detentions, Lieutenant Hyams' research (page 2)
indicates that use of the administrative citation process is most likely not a
Analysis of Police Operations — July 4, 1999
Page 6
viable option. Although the Welfare and Institutions Code contains some
provisions for cost recovery, collection appears to be problematic. Refer
to Lieutenant Hyams' report for additional information.
2. Use existing building code provisions (coupled with the expertise of
building inspectors assigned to work with police personnel) to
prohibit "roof top" parties. While it may be difficult to take
immediate enforcement action, we would follow -up with
administrative citations for those who refused to voluntarily comply.
Anticipated benefits — Limit the appearance (and contagious nature) of an
out -of- control party atmosphere in congested areas such as the Balboa
Peninsula and the West Newport area. Limit the potential of injuries due
to falls or structural collapse.
Discussion — Lieutenant Hyams addresses the legal implications of this
proposal on page 3 of his report. While the building and construction
regulations of the municipal code permit building inspectors and peace
officers to enforce provisions of the code, entry into a structure for
enforcement purposes is limited to consent, legal process or exigent
circumstances. This means that immediate enforcement would probably
be limited to the most aggravated situations. In other instances, the
building inspector may be able to initiate follow -up action for the purpose
of preventing future problems and to facilitate the issuance if an
administrative citation.
3. Impose a surcharge on short -term rental permits in the impacted
area for the week encompassing the July 4t" holiday.
Anticipated benefits — Help recover the costs of providing additional police
service to the impacted areas and to encourage owners and rental agents
to be more responsible, in the selection of renters.
Discussion — So far this year, 390 permits have been issued. Eighty -five
percent of these units are in the Balboa Peninsula/West Newport area.
Most of the remainder are on Balboa Island. At present, there is no
charge to the property owner. Renters pay a bed tax calculated at the
rate of ten percent of the rental rate. Ninety percent of the money
collected goes to the City with the remainder being divided among other
agencies (e.g., the Conference and Visitors Bureau). It may be most
effective to impose the July 4"' surcharge at the time the annual permit is
renewed if the owner or property manager intends to rent a unit in an
impacted area during the holiday period.
Ll
Analysis of Police Operations — July 4, 1999
Page 7
. On page 4 of his attached report, Lieutenant Hyams addresses legal
issues relative to the short -term lodging ordinance. He also discusses
options, including increasing fines for violations of the ordinance.
4. Impose an automatic first response fine on verified party
disturbances on July 4th.
Anticipated benefits — Deter loud noise and disruptive activity and provide
the means for recovering some of the costs associated with police
response to disturbances.
Discussion —The municipal code presently addresses this issue in the
section dealing with loud and unreasonable noise and also in the large
party ordinance. The administrative citation process can probably be
used as a "first- response" measure by an officer responding to a loud
party without coming into conflict with the party ordinance.
On page 5 of his report, Lieutenant Hyams explores this issue in greater
detail. He also discusses ways in which the administrative citation
process may be used in conjunction with or incorporated into the party
ordinance.
5. Post conspicuous signs at entrances to the City advising visitors of
the bans on fireworks, drinking in public, -and open containers.
Anticipated benefits — Raise the awareness of visitors to Newport Beach
regarding ordinances prohibiting fireworks, drinking in public and the
possession of open alcoholic beverage containers.
Discussion — This proposal could be accomplished by posting large signs
that would be visible to persons entering Newport Beach on Jamboree
Road, Mac Arthur Boulevard, Newport Boulevard, and the Coast Highway.
Information regarding double fines for certain municipal code offense
could be printed on heavy card stock and posted on barricades and
fences in the street closure area.
6. Double Newport Beach Municipal Code fines for violations of
specified provisions in designated impact zones. Typical offenses
would include drinking in public, possession of open containers,
disturbances, etc.
Anticipated benefits — Enhance the deterrent factor of fines for violations
of the municipal code. By increasing the fines levied for specified
violations in designated areas, the deterrent effect of the fine is magnified.
The City would be making a strong statement that violations of these
particular ordinances will not be tolerated.
Analysis of Police Operations — July 4, 1999
Page 8
Discussion — On page 6 of his report, Lieutenant Hyams discusses this •
issue and concludes that the City Council has the authority 'to increase
fines in the manner proposed. For the sake of administrative ease, if the
offense is one requiring court action, he recommends that the fines be
increased citywide during the designated time period rather than
attempting to define specific areas.
Lieutenant Hyams also explores the possibility of alternately using the
administrative citation process to impose a graduated fine schedule for
violation of designated municipal code sections. By doing so, we could
avoid the implications of involving the court and requiring a change in their
procedure. Refer to his report for additional information.
7. Mass mailing of information notices to short -term rental permit
holders and property management companies.
Anticipated benefits — Provide a better means of communicating
information regarding laws, policies, fees and penalties to individuals in
the best position to exercise responsibility in the rental of short.-term units.
Discussion — If owners or property managers of short-term rental units
were able to receive timely information they would be better informed and
presumably, better able to cooperate with City efforts to prevent problems
in short -term rentals. Since the number of owners and management
companies is relatively small, this should be an easy task to accomplish.
We currently have a good working relationship with the various property
management firms operating in the City; however, we have not engaged
the short-term rental permit holders not employing property managers, in
any such dialogue about the July 4w issues.
8. Enhanced enforcement of laws dealing with juvenile offenders,
specifically curfew violations where the violators continue to loiter in
the impact zone after hours.
Anticipated benefits — Deter juveniles from remaining in problem areas
after 10:00 p.m. In addition to discouraging young people from engaging
in unlawful activity, it would also help prevent them from becoming crime
victims. Past experience has shown that many juveniles find it prudent to
leave the area as soon as news of impending curfew detentions begins to
circulate. This would have the effect of diminishing the size of the crowd,
making it more manageable.
Discussion — This year, field personnel noted large numbers of juveniles
in problem areas, many of whom remained until the early morning hours.
Due to their lack of maturity, some people in this age group are prone to
Analysis of Police Operations —July 4, 1999
Page 9
behavior that is reckless, irresponsible or disruptive, especially when they
find themselves in tumultuous circumstances such as those existing in
some areas of West Newport on the Fourth of July.
Detaining a large number of juveniles for curfew violations would require a
modification of our operational plan as it relates to juvenile custody
arrangements. Rather than using the juvenile custody area of the jail,
which is where most juveniles are presently detained while awaiting
release to parents, we would seek an alternative location with greater
capacity.
Announcing our intention to enforce the curfew ordinance would add to
the deterrent effect. This could be accomplished by means of advance
flyers, media releases, electronic message boards, or printed notices
posted on barricades
9. Temporarily increase street light wattage to 400 watts on selected
streets identified by our staff as historical locations with large
numbers of parties with attendant disturbances.
Anticipated benefits — Increased illumination in problem areas will make
misconduct more visible and will alid in the enforcement effort. It would
have the added effect of depriving problem individuals of the feeling of
anonymity that darkness provides.
Discussion — This proposal is feasible on a limited scale. The brighter
bulbs cost approximately $200 and require two man -hours per fixture to
install. Some obvious problems — will a particular street be a problem this
July 4th because it has been in the past? Will the disruptive element
simply move to the next street?
In spite of the drawbacks, this technique might be employed to good
advantage in dealing with locations that have become chronic problems.
10. Establish liaison with the Alcoholic Beverage Control Board
regarding marketing practices of local off -sale establishments.
Anticipated benefits — Minimize the sales volume of alcoholic beverages
from local markets and liquor stores. These establishments appear to be
a significant source of alcoholic beverages consumed at west -side party
houses.
Discussion —Sales volumes are so significant that they easily exceed the
capacity of existing store refrigerators and storage facilities. There are
two elements to this issue. One element has to do with the volume of
alcoholic beverages sold. The second involves the overflow storage of
Analysis of Police Operations — July 4, 1999
Page 10
the products. This typically involves the use of refrigerated trucks and /or
trailers that are positioned in parking lots and used to replenish the store.
Our Vice and Intelligence staff has discussed this matter with the local
ABC office and their staff attorney. It is the position of the A13C that the
marketing practices of these off -sale establishments as it relates to sales
volume and storage of product in refrigerator trucks is not specifically
addressed or controlled by ABC regulations. They added that unless the
establishments are conducting specific sales transactions outside of the
licensed premises there is no violation. We have no information that such
activities have occurred.
This issue has also been discussed with the Planning Department to
determine if the use of trailers or trucks to store products violates any
local zoning regulations. The Planning Department has had some
experience with the truck/trailer storage problem that apparently occurs
during winter holiday periods at some markets. The results of their
analysis as it relates to the July 0 holiday period are still pending.
11. Conduct research regarding repeat disturbance offenders /locations
over the past several years, and place the owners/property managers
on notice to expect close scrutiny on July 4t', 2000.
Anticipated benefits — This will allow for timely notification of property
owners or managers that properties under their control will be the target of
increased scrutiny. It will also permit enforcement personnel to focus their
attention on problem locations.
Discussion — Our Management Information System staff advises we can
extract the necessary data to identify repeat offender locations and we will
do so prior to next year's event.
12. Explore the feasibility of using lighted message boards (similar to
those in use by Cal Trans) to advise visitors of impact zone fines.
The boards would be placed at strategic locations in the City.
Anticipated benefits — A portable electronic message board would provide
the Police Department with the ability to convey a variety of messages in
an effective manner that the City deems appropriate, in addition to
specific information on impact zone fines.
Discussion — The unit most appropriate for our needs displays three lines
of text per screen with many screens available for programming. The
units are available for rental (with sufficient advance notice) at the rate of
$225 per day. The purchase price of the unit is approximately $19,000.
Analysis of Police Operations — July 4, 1999
Page 11
0 CONCLUSION
While we encountered more problems this year than we have in the recent past, our
serious offenses remained consistent with last year's experience. We are satisfied that
our operational plan was sound and that it was implemented effectively. As in past
years, we depended heavily upon other City Departments and also upon the assistance
of the California Highway Patrol and the Orange County Sheriff's Department. Any
success for which we are credited must be shared with all of those entities.
We have attempted to be creative and innovative in our critique process this year. With
the Council's input and direction, we hope to implement some of the proposals that
have been listed and which are deemed appropriate and feasible, after more study and
staff work is completed. We believe that by doing so, we will be better able to insure a
safer, more peaceful holiday next year.
Respectfully submitted, Approved b
cK
Doug Fletcher, Lieutenant Bob McDonell
Executive Officer CHIEF OF POLICE
0
�J
City of Newport Beach
Police Department
August 2, 1999
To: Chief of Police
From: M. Hyams, Lieutenant
Subject: Fourth of July Enforcement Options
Sir,
Per your request, I reviewed the following questions for general legality. I also
spoke to Dan Ohl and Robin Clauson from the City Attorney's office, and
Revenue Manager Glen Everroad regarding these issues. In the event it is
decided to proceed with any of these suggestions, I would conduct additional
analysis.
Can we utilize the Administrative Citation process for public intoxication
arrests upon release from custody & 849b2 on the criminal charge?
Conclusion
We can only issue administrative citations for municipal code violations
associated with an intoxication arrest because state codes cannot be enforced
via administrative citations, and a local ordinance for public intoxication would be
pre - empted by state law.
Discussion
We cannot issue an administrative citation to a person arrested for public
intoxication in violation of state Penal code 647(f) and released with no charges
pending per 849(b)(2) PC. The enabling legislation (53069.4 Government Code)
only permits the issuance of administrative citations for violations of ordinances
"enacted by the local agency." There are no provisions to levy administrative
fines for violations of state penal codes, and we do not have a local ordinance
that prohibits public intoxication.
We most likely cannot regulate public intoxication by passing a municipal
ordinance because such an ordinance would be pre - empted by state law.
California Constitution Article XI, section 7, provides that municipalities may
enact and enforce ordinances "not in conflict with general laws." Conflicts exist if
the ordinance duplicates, contradicts, or enters an area fully occupied by general
law, either expressly or by legislative implication. Building Indus. Assn. v City of
July 4`" Options — Page 2
Livermore (1996, 1st Dist) 45 Cal App 4th 719. An ordinance which is
substantially identical with a state statute is invalid.
Nevertheless, in some instances, we can issue an administrative citation for
other violations of the municipal code associated with the arrest. For example, a
person arrested for public intoxication who is in possession of an open container,
or drinking in public could receive an administrative citation for that municipal
code violation upon their release from any further action on the state public
intoxication charge. Likewise, many public intoxication arrests also involve other
disruptive or prohibited conduct regulated by local ordinance such as making
loud and unreasonable noise, sleeping on the beach, obstructing sidewalks or
public urination. Typically, these violations are not prosecuted because they are
merely indicative of the level of intoxication. However, they could make the
violator subject to an administrative citation for the local violation, upon the
decision to not prosecute for the state violation. Issuing such citations would
merely require a change in our internal processing of intoxication arrests.
Can we utilize the Administrative Citation process for curfew detentions
upon release of a juvenile?
Recommendation
A Council decision is required regarding whether to implement the curfew cost
recovery provision of 625.5 Welfare and Institutions Code or issue Administrative
citations for the violation.
Discussion
Curfew violations arguably fall under the administrative citation procedure. Such
citations would probably be near the boundary of permissibility and intent of the
legislature in creating an administrative citation process. Curfew is a local
ordinance (10.36.010 NBMC), and there is nothing that explicitly limits the
issuance of administrative citations to adults. In fact, juveniles are subject to
personal service citations for violation of most state and local laws. However, we
may also be in conflict with state law if we issue an administrative citation to a
juvenile for a curfew violation.
The state has provided a specific legislative scheme for local agencies to recover
costs associated with juvenile curfew detentions. Section 625.5 Welfare and
Institutions code provides that we can recover administrative costs for
transporting a violator to their residence or to the custody of their parent or
guardian. While not explicitly stated, this probably includes transport to NBPD for
release to the custody of the parent or guardian. However, the section requires
that we send a warning to the parent on the first violation that advises of the cost
being imposed upon a second or subsequent violation. It also requires a council
0 resolution authorizing the collection of fees under this section. Once enacted,
July 4`h Options — Page 3
parents explicitly are held liable for payment of the fee. However, there are
numerous provisions to waive the fees based upon economic hardship or lack of •
control over the minor. Unfortunately, most curfew violations are not by repeat
offenders, so the state cost recovery provisions do not provide much help.
Nevertheless, our ordinance allowing imposition of administrative fines does
state that the procedures are "in addition to any other criminal, civil or any other
legal remedy established by law. . . " (NBMC 1.05.005 B.) And, unlike the
purpose of the state curfew cost recovery statute, the purpose of issuing
administrative citations is not for cost recovery, but as an alternative method of
enforcing the municipal code. Of course, we would be both detaining and citing.
While our ability to collect should not be a deciding factor in the issuance of a
citation, collecting the fine from a juvenile or their parent maybe difficult. In
many cases, a juvenile is jointly and severally liable for civil judgments with his or
her parent or guardian. However, joint and several liability is statutory, such as
when the juvenile causes injury or property damage (1714.2 Civil Code) or for
attorney fees. While a judgment could likely be rendered against the juvenile
who did not pay (6600 Family code), as a practical matter it would likely be
unenforceable. Because there is no statutory authority, this judgment could not
be enforced against the parent or guardian either.
Our ability to issue administrative citations for curfew violations is probably not
directly pre - empted by state law because our ordinance provides that its .
provisions are in addition to other laws, and for enforcement purposes. While the
legislature has suggested that costs should only be recovered from repeat
violators, and by implication, not from first time offenders via the administrative
citation process, they have not explicitly stated their intent to occupy the area of
cost recovery from juvenile offenders.
The council has not chosen to enact the optional resolution providing for the
collection of fees under the Welfare and Institutions Code. Ultimately, the council
should decide whether to pass a resolution to recover costs associated with
curfew detentions or enforce curfew by using the administrative citation
procedure.
Can we use Building Codes to control rooftop parties and what are the
procedures for non - compliance?
Conclusion
The building inspector or officer at the direction of the inspector may issue an
administrative citation to the occupant for use contrary to the occupancy
provisions of the building code. If the occupants refuse to cease use of the roof
in violation of the code, an immediate and substantial threat to life is required to
force immediate compliance. 0
July 4th Options — Page 4
Is Discussion
The Municipal Code allows the chief building inspector, building director, peace
officers and code enforcement officers the authority to enforce the building code
provisions of the municipal code. (1.12 NBMC). There are a variety of
regulations within the building code that define requirements for occupancy. The
building inspector may be able to make a visual determination that a particular
roof does not meet the occupancy requirements. Either the building inspector or
officer has the authority to request entry to inspect the roof if necessary to further
determine if it meets the requirements for occupancy. However, entry to inspect
must be by consent, or by legal process, such as an administrative inspection
warrant.
If the building inspector determines, either by sight or inspection, that the roof is
not designed for occupancy, the "official may order the use discontinued by
written notice served on any person causing such use to be continued" (Uniform
Administrative Code 202.5). The person must discontinue the use within the time
period prescribed by the building official. We can contact the occupant who is
allowing the use, and issue an administrative citation with an "immediate" time to
discontinue the use.
In the event there is non - compliance, we can issue additional citations, either
administrative or criminal. However, in order to enter and force compliance, we
would need consent, a warrant, or exigent circumstances — an immediate and
significant threat to life. Otherwise, we would conduct follow up enforcement by
later citation or crime report.
Can we impose a surcharge on short term rental permits for the July 4t"
week?
Conclusion
We could change the short term lodging ordinance or obtain a council resolution
to require a special permit or additional fees for July 4th but such a change would
be bureaucratically cumbersome and not provide significant revenue. We cannot
increase the transient occupancy tax without a general vote. We can by
ordinance change the fines for violations of the short term lodging permit during
the July 4th period.
Discussion
Short term lodging permits are required per 5.95 NBMC in order for an owner to
rent property for a short term. The permit fees are established by resolution and
cannot exceed the cost of processing. The permit is only revoked for violations
• as determined by the finance director. The permits do not have a renewal
July 4th Options — Page 5
period. Although the city manager has authority to impose additional standard
conditions on permits, we would probably need to significantly change the
ordinance to require additional permit fees for the July 4'h week, or at the least
have a council resolution establishing additional fees to rent during that week.
Also, the purpose of the low cost and non - expiring permit is to encourage owners
to disclose themselves and be subject to regulation. Increasing the permit fees
or requirements could force more owners back "underground."
The transient occupancy tax is paid by the renter. To change this tax rate, we
would need to have a public vote per Proposition 218.
We could however, change the fines by ordinance for violations of short term
lodging permit conditions that occur over the July 4th week. While these
violations are potentially difficult to prove, an owner is required to use "best
efforts" to insure their occupants and guests do not create unreasonable noise,
engage in disorderly conduct, commit violations of various codes, and upon
notice, to prevent recurrence of such violations. The fines are levied on the
property owner and amounts are specified within the ordinance. At the least,
notice of the increased fines may encourage a higher level of attention by the
property owner or agent. See the discussion below regarding doubling fines.
Can we impose an automatic fine on a first response to a party call that
constitutes a disturbance?
Conclusion
We can issue an administrative citation for violation of an applicable municipal
code section upon our first response to a party. This is probably limited to
violations of creating a loud or unreasonable noise.
Discussion
Administrative citations can be issued for violation of the municipal code.
Possible sections include creating loud and unreasonable noise (10.28 NBMC),
or violation of the large party ordinance (10.58 NBMC). However, the large party
ordinance provides a specific statutory scheme within the municipal code for the
imposition of civil fines for the host of a party with a specific appeal process.
That ordinance requires that the person responsible will be held liable for civil
fines for violation of the ordinance at any time within any twelve month period
after a first written warning. The ordinance does specify that "the initial call or
any subsequent call may also result in the arrest and/or citation of violators of the
state penal code or other local regulations," although the ordinance predates the
administrative citation procedure. Here, creating a loud and unreasonable noise
would probably be an "other local regulation" subject to the citation upon first
response, even though someone may insist it is a 'lesser included offense" to a
0
July 4`h Options — Page 6
violation of the large party ordinance. The administrative cite may also serve as
• the written warning.
Subsequent responses could be cited administratively with progressively higher
fines or criminal enforcement could occur. The large party ordinance also makes
the owner liable for fines imposed by the finance director.
Alternatively, we could change the large party ordinance. Possible changes
might include specifically allowing an administrative cite to the host for a first
response, and making the fines or appeal procedure consistent with those
described in the administrative citation ordinance.
Can we double fines on Municipal code violations pertaining to specified
offenses in impact zone/ closure areas?
Conclusion
We can change the fines for violation of specified municipal codes by ordinance.
However, the changes probably should be citywide for the time period, instead of
by geography.
Discussion
• Fines must be specified by ordinance. The council can determine the amount of
fine for any particular violation, and can change particular fines for specified time
periods, especially where there is significant justification to do so. The fines are
included in bail schedules as used by the court, which adds additional
surcharges and penalties.
We would need to coordinate the administration of the increased fines with the
court. To ease administration, dates of increase would probably be easier than
specific geographic areas. However, if some system were established,
increased fines in limited geographic areas may be possible. While there may be
some question regarding the validity of increased fines in a limited geographic
area due to equal protection concerns, the state does have provisions in the
vehicle code for double fines in construction zones (42010 CVC). This issue
would need further research.
We would also need to provide adequate notice that fines were increased for the
specified violations. Finally, while we can change and publicize the increased
fine structure regardless of the ability of the court to process the temporary
increase in fines, actual collection would be dependent upon the ability of the
court to handle the variations. We will need to research the ability of the court to
temporarily apply these fines.
July 4`h Options — Page 7
An alternative would be to issue administrative citations for specified munlicipal .
code violations. All of the revenue from those fines is retained by the city, as
compared to significant administrative costs retained by the court for handling
personal service citations treated as misdemeanors or infractions. Using the
administrative citation process does not involve the court or require any change
in their procedure. We could publicize that the standard fine for the first offense
is $100.00 and increases to $200.00 and $500.00 for subsequent offenses. Or, if
the administrative fines for specified ordinances were doubled via ordinance, the
fines would be $200.00, $400.00 and $1000.00. Publicizing or posting these fine
amounts may have a deterrent effect. Using the administrative citation process
may also facilitate our ability to increase fines limited to a specific geographic
area, if such a geographic increase would be otherwise permissible.
If we used the administrative citation process for enforcement of minor criminal
municipal code violations, such as drinking in public or public urination, only the
civil collection process would be available for those who disregarded the citation.
No criminal warrants would be issued. It should beat the discretion of the officer
whether to issue an administrative citation, cite criminally, or arrest for any
particular violation.
The increase in fines could apply to violations of the short term lodging ordinance
as discussed above.
Respectfully submitted,
M. Hyams, Lieutenant
Professional Standards
0