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HomeMy WebLinkAbout13 - Loud and Unruly Gathering OrdinanceCITY OF NEWPORTREACHI City hLlllcIl S1..1ff Report Agenda Item No. May 1 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Police Department Jay R. Johnson, Chief of Police 949- 644- 3701,jjohnson @nbpd.org PREPARED BY: Bill Hartford, Lieutenant 949 - 644 -3720, bhartford @nbpd.org APPROVED: U TITLE: Loud and Unruly Gathering Ordinance ABSTRACT: The Loud and Unruly Gathering Ordinance would allow patrol officers to effectively control large parties or gatherings that have become a threat to public safety and welfare of the Community through a civil citation process. RECOMMENDATION: Introduce Ordinance No. 2011 -_ adding Newport Beach Municipal Code Chapter 10.66 pertaining to Loud and Unruly Gatherings and amending Newport Beach Municipal Code sections 5.95.060 and 5.95.065 pertaining to Short Term Lodging Units, and pass to a second reading on May 10, 2011. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: Modeled after the Unruly Gatherings Ordinance in Tucson, Arizona, and other jurisdictions, the proposed Loud and Unruly Gathering Ordinance would establish civil fines for responsible persons that participate in, or part of, a loud or unruly gathering that consists of eight or more persons on any private residential property for a social occasion or other activity upon which loud or unruly conduct occurs and results in a public nuisance or a threat to the public health, safety, general welfare, or quite enjoyment of residential and nearby properties. Loud and Unruly Gathering Ordinance May 10, 2011 Page 2 The proposed Ordinance was presented at the City Council Study Session on April 12, 2011. Many members of the Community spoke in favor of the proposed Ordinance during the City Council Study Session. Council Members requested several changes to the proposed Ordinance to address some concerns, as well as comments made by members of the public during the public comments portion of the meeting. The following revisions and additions were made: 1. Adding an amendment to NBMC sections 5.95.060 & 5.95.065 regarding the revocation of Short Term Lodging Permit for three or more Loud or Unruly Gatherings. 2. Adding a new subsection 10.66.060(C) regarding a person being subject to increased fines if they are present at a premises that has been posted with a notice. 3. Adding a "grace' period for landlords to modify leases in subsection 10.66.060(1). 4. Adding subsection 10.66.060(J) regarding a procedure for property owners to petition the City and seek to have a posted notice removed should the property owner demonstrate the Responsible Persons are no longer in possession of or allowed to occupy the property. 5. Change "Treasure" to "Administrative Services /Finance Director." The Police Department will be working with members of the Revenue Division on finalizing a system for notification of fines and violations for cited responsible parties. The Police Department believes the system will be similar to the system currently used for fines and notifications related to Disturbance Advisement Cards for the Police Services at Large Gatherings Ordinance, NBMC Chapter 10.58. The Office of the City Attorney has worked extensively with the Police Department on drafting this Ordinance so that it is consistent with applicable laws and legal standards. This Ordinance, in addition to being modeled after a similar ordinance in Tucson, Arizona, is also modeled after the Unruly Gathering Ordinance for the Town of Narragansett, Rhode Island. Recently, the United States Court of Appeals, First Circuit, issued a decision that upheld Narragansett's Unruly Gathering Ordinance and found it to be constitutional. (URI Student Senate v. Town of Narragansett (15t Cir. 2011) 631 F.3d 1.) Members of the Office of the City Attorney and the Police Department will be meeting with representatives of the Apartment Association of Orange County, Burr White Reality, and independent property owners on May 4, 2011, at 5 p.m. The purpose of the meeting is to address their concerns with the proposed Ordinance and make any relevant changes. A presentation concerning the meeting's outcome will be given at the City Council Meeting on May 10, 2011. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will Loud and Unruly Gathering Ordinance May 10, 2011 Page 3 not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: (2� /af R.J nson Chief of Police Attachment: A. Redraft of Loud and Unruly Gathering Ordinance ORDINANCE NO. 2011- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER 10.66 TO THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO LOUD AND UNRULY GATHERINGS AND AMENDING SECTIONS 5.95.060 AND 5.95.065 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING SHORT TERM LODGING UNITS WHEREAS, the City of Newport Beach ( "City ") is a charter city, governed by a charter adopted by the citizens of the City; and WHEREAS, Article XI, Section 5 of the Constitution of the State of California authorizes charter cities to enact ordinances with respect to their municipal affairs; and WHEREAS, the City Council finds and declares that due to inadequate supervision, some parties or other large gatherings of people frequently become loud and unruly to the point that they constitute a threat to the peace, health, safety, or general welfare of the public as a result of conduct such as one or more of the followings: excessive noise, excessive traffic, obstruction of public streets or crowds who have spilled over into public streets, obstruction of rights of way by people or vehicles participating in these large gatherings, public intoxication, the consumption by and provision of alcohol to minors, fights, disturbances of the peace, vandalism, urinating or defecating in public, and litter; and WHEREAS, the City Council finds and declares that the City's Police Department is sometimes required to make multiple responses to locations of such Loud or Unruly Gatherings in order to restore and maintain the peace and protect public safety. This causes an additional burden on scarce City resources, and can result in police responses to regular and emergency calls for service being delayed, and police protection to the rest of the City being reduced; and WHEREAS, the City Council finds and declares that the cited impacts negatively affect both the neighborhoods in which such Loud and Unruly Gathering occur and the public safety resources of the City; and WHEREAS, the City Council finds and declares that Loud or Unruly Gatherings are contrary to the public interest and problems associated with Loud or Unruly Gatherings are difficult to prevent or deter unless law enforcement has the additional legal authority to impose civil fines; and WHEREAS, the City Council finds and declares that it is the intent of this Chapter to protect the public health, safety, general welfare, and quiet enjoyment of residential property, rather than to punish; and WHEREAS, the City Council finds and declares that persons who actively or passively aid, abet, or allow Loud or Unruly Gatherings should be held liable for the 1 nuisances created by such gatherings, including, without limitation, the imposition of civil fines; and WHEREAS, the City Council finds that the proposed ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment (Section 15060(c)(2) of the California Environmental Quality Act Guidelines); and WHEREAS, this agenda item has been noticed in accordance with the Ralph M. Brown Act (72 hours in advance of the public meeting) and the item appeared upon the agenda for this meeting which was posted at City Hall and on the City's website. NOW THEREFORE, the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows: Section 1: Chapter 10.66 of Newport Beach Municipal Code is hereby added to read as follows: Chapter 10.66 LOUD AND UNRULY GATHERINGS Sections: 10.66.010 Definitions 10.66.020 Loud or Unruly Gathering — Public Nuisance 10.66.030 Posting of Notice Regarding Loud or Unruly Gathering 10.66.040 Second and Subsequent Responses 10.66.050 Notice of Violation 10.66.060 Violation — Penalty — Civil Fine 10.66.070 Administrative Hearing, Appeal 10.66.080 Collection of Delinquent Costs 10.66.090 Cumulative Remedies 10.66.010 Definitions For the purposes of this Chapter, the following definitions shall apply: A. "Loud or Unruly Gathering" means a gathering of eight (8) or more persons on any Residential Unit for a social occasion or other activity upon which loud or unruly conduct occurs and results in a public nuisance or a threat to the public health, safety, general welfare, or quiet enjoyment of residential property or nearby public property. 1. As used in this Chapter, loud or unruly conduct includes, without limitation, any or all of the following: a. Excessive noise or traffic; b. Obstruction of public streets by crowds or vehicles; 2 C. Obstruction of rights of way by people or vehicles d. Public drunkenness; e. The service of alcohol to Minors; f. Possession and /or consumption of alcohol by Minors; g. Assaults, batteries, fights, domestic violence or other disturbances of the peace; h. Vandalism; i. Litter: or j. Urinating or defecating in public. 2. Loud or unruly conduct does not include any activity that is: a. Protected by Article 1, Section 4 of the California Constitution; b. Protected by the First or Fourteenth Amendments to the United States Constitution; or C. Regulated by the California Alcoholic Beverage Control Act. B. "Responsible Person" means and includes without limitation: 1. Any person(s) who is present at and rents, leases or otherwise is charge of the Residential Unit where a Loud or Unruly Gathering occurs; or 2. Any person(s), including any business, company or entity, who organizes or sponsors a Loud or Unruly Gathering; or 3. Any person(s) who attends a Loud or Unruly Gathering and engages in loud or unruly conduct. If the Responsible Person is a Juvenile, then the parent(s) or guardian(s) of that Juvenile shall also be considered a Responsible Person. C. "Residential Unit' means any residential "Dwelling unit," as that term is defined in section 20.70.020 of this Code, and includes any garage, carport, walkway, yard, patio, deck, or other similar area associated with an individual Dwelling unit. However, 'Residential Unit' does not include any room or unit of a hotel or motel. D. "Owner" means any person(s), including any firm, association, organization, partnership, trust, business, corporation, company or entity, who owns the Residential Unit where a Loud or Unruly Gathering occurs. E. "Juvenile" means any person under the age of eighteen (18) years old. "Minor means any person under the age of twenty -one (21) years old. 10.66.020 Loud or Unruly Gathering — Public Nuisance A. It shall be unlawful and constitute a public nuisance for any Owner or Responsible Person to cause or allow a Loud or Unruly Gathering to occur at any Residential Unit within the City. A Loud or Unruly Gathering may be abated by.the City by all reasonable means, including, but not limited to, an order of a peace officer requiring the Loud or Unruly Gathering to be disbanded, the issuance of citations, and /or the arrests of any person(s) committing a violation of law under applicable State or local laws. B. Nothing in this section shall be construed to impose liability on an Owner, resident of the Residential Unit, the person in charge of the Residential Unit, or the organizer or sponsor of the gathering, for the conduct of persons who are present without the express or implied consent of resident, person in charge of the Residential Unit or the organizer or sponsor, as long as the resident, person in charge of the Residential Unit or the organizer or sponsor have taken all steps reasonably necessary to exclude such uninvited persons from the Residential Unit, including an Owner who is actively attempting to evict a tenant from the Residential Unit. C. Where an invited guest engages in conduct which the resident, person in charge of the Residential Unit, or the organizer or sponsor could not reasonably foresee and the conduct is an isolated instance of an invited guest at the event violating the law which the resident, person in charge of the Residential Unit, or the organizer or sponsor is unable to reasonably control without the intervention of a peace officer, the unlawful conduct of the individual invited guest shall not be attributable to the Owner, resident, person in charge of the premises, or the organizer or sponsor for the purpose of determining whether the event constitutes a Loud or Unruly Gathering. 10.66.030 Posting of Notice Regarding Loud or Unruly Gathering A. Posting of Residential Unit. When a peace officer intervenes at a Loud or Unruly Gathering, the Residential Unit at which the Loud or Unruly Gathering occurs shall be posted with a notice stating (1) that the intervention was necessary as a result of a public nuisance caused by a Loud or Unruly Gathering; (2) the date of the intervention; (3) that any subsequent Loud or Unruly Gathering within one hundred and eighty (180) days from the date of the prior Loud or Unruly Gathering may result in civil fines for all Responsible Person(s) as well as any other person present at the subsequent Loud or Unruly Gathering; and (4) that is it unlawful to remove, alter, tamper with or deface the notice. B. Without written authorization from the City, it shall be unlawful for any person to remove, alter, tamper with or deface the posted notice of a Loud or Unruly Gathering from the Residential Unit prior to the expiration of the entire one hundred and eighty (180) day period from the date of posting. C. Without written authorization from the City, it shall be unlawful and subject to a civil fine for any Owner or person who rents, leases, or otherwise has control of the Residential Unit where a notice has been posted of a Loud or Unruly Gathering to allow the removal, alteration, tampering with, or defacement of, the posted notice of a Loud or Unruly Gathering from the Residential Unit prior to the expiration of the entire one hundred and eighty (180) day period from the date of posting. M D. Mailing of Notice to Owner. If a notice is posted pursuant to 10.66.030(A) and the Owner of the Residential Unit is different than any Responsible Person who received a citation or notice at or near the time of posting the notice, a notice concerning the Loud or Unruly Gathering shall be mailed to such Owner of the Residential Unit at the address shown on Orange County's last equalized property tax assessment roll, or the supplemental roll, whichever is more current. The notice shall advise the Owner that any subsequent Loud or Unruly Gathering on the same premises with one hundred and eighty (180) days of the Loud or Unruly Gathering that is the subject of the notice may result in additional civil fines as established by this Chapter. 10.66.040 Second and Subsequent Responses If after posting of a notice pursuant to subsection 10.66.030(A), a peace officer is required to respond to the Residential Unit based upon another Loud or Unruly Gathering and the Owner of that Residential Unit does not reside within the Residential Unit, than the Owner shall not be liable for the increased fine amount for the second or subsequent response unless notice has been mailed to the Owner in compliance with subsection 10.66.030(D) and fourteen (14) calendar days have passed since the mailing of said notice. 10.66.050 Notice of Violation A. The City shall give a notice of a violation of section 10,66.020(A) by issuing a citation or Notice of Violation to the Responsible Person within a reasonable time following the violation, but not exceeding forty -five (45) days. The citation or Notice of Violation shall be served either by personal service on the Responsible Person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such Responsible Person to be notified, at their last known address as the same appears in the public records of the City. B. Service by personal service shall be deemed to have been complete when served on the Responsible Person. Service by mail shall be deemed to have been completed at the time of deposit by the City in the mail for delivery by the United States Postal Service. C. The citation or Notice of Violation shall include the following information: 1. The name of the Responsible Person; 2. The address of the Residential Unit where the Loud or Unruly Gathering occurred; 3. The date and time of the response by a peace officer to the Loud or Unruly Gathering; 4. A summary description of the loud or unruly conduct; 5. The name of the peace officer who ordered the Loud or Unruly Gathering disbanded, issued citations, or posted the Residential Unit; 6. An order prohibiting the continuation or repeated occurrence of the violation; 5 7. A statement concerning the amount of the civil fine imposed and an explanation of how and when to pay the civil fine; 8. Notification of the right to appeal, including the time within which the violation may be contested and the place to submit a written appeal; and 9. Notification that the City may impose a lien on the subject property, or pursue other lawful means to collect the civil fine, in the event of non- payment of any civil fines. 10.66.060 Violation — Penalty — Civil Fine A. The following civil fines shall be assessed for violations of subsection 10.66.020(A) of this Chapter: 1. A civil fine not exceeding five hundred dollars ($500.00) for a first violation; 2. A civil fine not exceeding one thousand dollars ($1,000.00) for a second violation within one hundred and eighty (180) days of the first violation; 3. A civil fine not exceeding two thousand dollars ($2,000.00) for a third violation within one hundred and eighty (180) days of the first violation; and 4. A civil fine not exceeding three thousand dollars ($3,000.00) for a fourth and any subsequent violations within one hundred and eighty (180) days of the first violation. B. The following civil fines shall be assessed for violations of subsection 10.66.020(A) of this Chapter that occur within the West Newport Safety Enhancement Zone, as established by Section 1.04.060 of this Code: 1. A civil fine not exceeding one thousand five hundred dollars ($1,500.00) for a first violation; 2. A civil fine not exceeding three thousand dollars ($3,000.00) for a second violation within one hundred and eighty (180) days of the first violation; 3. A civil fine not exceeding five thousand dollars ($5,000.00) for a third violation within one hundred and eighty (180) days of the first violation; and 4. A civil fine not exceeding eight thousand dollars ($8,000.00) for a fourth and any subsequent violations within one hundred and eighty (180) days of the first violation. C. Any Responsible Person who is present at a Residential Unit that has a notice posted pursuant to section 10.66.030(A) shall be presumed to have notice of the prior violation(s) by virtue of the posted notice(s) and shall be subject to a civil fine according to the number of violation(s) at the Residential Unit within the preceding one hundred and eighty (180) day period pursuant to the civil fine schedules in subsections 10.66.060(A) or (B) above. D. A civil fine not exceeding two thousand dollars ($2,000.00) shall be assessed for a violation of subsection 10.66.030(B) of this Chapter. Additionally, any person violating subsection 10.66.030(B) may be prosecuted for a misdemeanor, and upon conviction, shall be punished by a fine not exceeding one thousand dollars 0 ($1,000.00) or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment. E. A civil fine not exceeding one thousand dollars ($1,000.00) shall be assessed for a violation of subsection 10.66.030(C) of this Chapter. F. All civil fines imposed under this Chapter shall be due and payable to the City's Administrative Services Department within the earlier of thirty (30) days from the issuance of a citation or service of the Notice of Violation. G. Any Owner or Responsible Person who is unable to pay all or a part of the civil fine due to an extreme financial hardship may file a written request for a civil fine waiver or payment plan with the City's Administrative Services / Finance Director within fifteen (15) calendar days from the date of service of the citation or notice, whichever is earlier. The failure of any Owner or Responsible Person to timely file a written request for a civil fine waiver or payment plan with the City's Administrative Services / Finance Director shall be deemed a failure to exhaust the Owner's or Responsible Person's administrative remedies with regard to the same. 1. The written request for a civil fine waiver or payment plan shall be in writing, describe with particularity the extreme financial hardship as to why all or a part of the fine cannot be paid or indicate what the Owner or Responsible Person believes would constitute a reasonable payment plan for payment of the civil fine over time. Further, the written request for a civil fine waiver or payment plan must be accompanied by a sworn affidavit and demonstrate to the satisfaction of the City's Administrative Services / Finance Director the Owner's or Responsible Person's extreme financial hardship that necessitates a waiver of all or a part of the civil fine amount or need for a reasonable payment plan. The City's Administrative Services / Finance Director is entitled to request additional documentation and information from the Owner or Responsible Person in order to fully assess the Owner's or Responsible Person's extreme financial hardship. The failure of any Owner or Responsible Person to timely submit all requested additional documentation and information to the City's Administrative Services / Finance Director as requested shall be deemed a failure to exhaust the Owner's or Responsible Person's administrative remedies with regard to the same. 2. Once a complete written request civil fine waiver or payment plan is filed with the City's Administrative Services / Finance Director, the requirement to pay the civil fine shall be stayed until the City's Administrative Services / Finance Director determines whether to grant or deny the request. 3. If the City's Administrative Services / Finance Director grants the written request for a civil fine waiver, the Owner or Responsible Person shall not be required to pay the civil fine. If the City's Administrative Services / Finance Director determines that the Owner or Responsible Person has the financial ability to pay all or a part of the civil fine on a reasonable payment plan, the City's Administrative Services / Finance Director shall so notify the Owner or Responsible Person and the Owner or Responsible Person shall execute 7 any agreements required by the City's Administrative Services / Finance Director to establish the payment plan. Any payment plan established for the payment of a civil fine under this Chapter shall not exceed three hundred and sixty -five (365) days from the date of the City Administrative Services / Finance Directors determination. 4. The granting of any request for a civil fine waiver or payment plan shall not excuse or discharge any continuation or repeated occurrence of any violation of this Chapter, nor shall it bar further enforcement action by the City. 5. If the City's Administrative Services / Finance Director denies the written request for a civil fine waiver or payment plan, the civil fine must be paid within fifteen (15) calendar days from the date of personal delivery on the Owner or Responsible Person or mailing of the City Administrative Services / Finance Director's determination. 6. The City Administrative Services / Finance Directors determination shall be (i) made within fifteen (15) calendar days of the date of receipt of the complete request or any additional information as requested by the City Administrative Services / Finance Director; (ii) be in writing; and (iii) served either by personal delivery on the Owner or Responsible Person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such Owner or Responsible Person. The decision of the City's Administrative Services / Finance Director shall be final. H. The civil fines and criminal penalties imposed in this Chapter shall be in addition to any other fines and /or penalties imposed for violations of local, state, and /or federal law during a Loud or Unruly Gathering. I. Any Owner who does not reside within the Residential Unit and has (i) included covenants within the written lease or rental agreement for the premises on which a Loud or Unruly Gathering occurs that contain specific language prohibiting the activities described in this Chapter; and, (ii) demonstrated due diligence in abating an unmanageable tenant(s) or Responsible Person(s) for a Loud or Unruly Gathering shall not be liable under this Chapter. Prior to July 1, 2012, an Owner who does not reside within the Residential Unit and has a written lease or rental agreement for the Residential Unit on which a Loud or Unruly Gathering has occurred shall only need to demonstrate due diligence in abating an unmanageable tenant(s) or Responsible Person(s) for a Loud or Unruly Gathering to not be liable under this Chapter. J. Any Owner who does not reside within the Residential Unit, has a written lease or rental agreement for the Residential Unit and had the same Residential Unit posted with a notice pursuant to section 10.66.030(A), may file a written petition with the Chief of Police, or his or her designee, requesting permission to remove posted notice prior to the expiration of the one hundred and eighty (180) day period. The Chief of Police, or his or her designee, may grant the Owners written petition upon a satisfactory showing by the Owner that the Responsible Person(s) 0 for the Loud or Unruly Gathering are no longer in possession of or allowed to occupy the Residential Unit. K. Failure to receive any notice specified in this Chapter does not affect the validity of proceedings conducted hereunder. 10.66.070 Administrative Hearing, Appeal A. Any Owner or Responsible Person who, pursuant to this Chapter, is (1) subject to a civil fine; or, (2) have had their Residential Unit posted with a notice concerning a Loud or Unruly Gathering, shall have the right to file a request for an administrative hearing to appeal the imposition of the civil fine and /or the posting of the premises. Any such request shall be submitted to the City in writing on the form required by the City within thirty (30) days from the date of service of the citation, Notice of Violation or posting of the premises, whichever is earlier. The written request for an administrative hearing shall be submitted to the City with an advance deposit of the civil fine, unless the Owner or Responsible Person has been granted a civil fine waiver or payment plan by the City's Administrative Services / Finance Director pursuant to subsection 10.66.060(F). B. The failure of any Owner or Responsible Person to timely file a written request for a hearing, as required in this Section, shall be deemed a failure to exhaust the Owner's or Responsible Person's administrative remedies and render the citation, Notice of Violation and /or posting of the premises final. C. Any civil fine which has been deposited shall be refunded if it is determined, after an administrative hearing, that the Owner or Responsible Person who requested the administrative hearing was not responsible for the violation(s) or there was no violation(s) as charged in the citation, Notice of Violation or posting on the premises. If, after the administrative hearing, it is determined that the Owner or Responsible Person was responsible for the violation(s), any civil fine previously deposited shall be retained by the City. D. The City Manager shall designate the Hearing Officer for the administrative hearing. The Hearing Officer shall not be an employee of the City. The employment, performance evaluation, compensation and benefits of the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the result of the administrative hearing as determined by the Hearing Officer. E. A hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this Chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. The City and the Owner or Responsible Person may mutually agree to waive or modify these time restrictions in writing. 9 F. The Hearing Officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the Owner or Responsible Person is liable for the violation(s). G. The Owner or Responsible Person requesting the administrative hearing shall be given the opportunity to testify and present witnesses and evidence concerning the violation(s). H. The failure of any Owner or Responsible Person to appear at the administrative hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative remedies, and render the citation, Notice of Violation, or posting of the premises final, including any civil fine imposed thereby. The citation, Notice of Violation, and /or posted notice on the premises, together with any additional documents or evidence submitted by the City shall constitute prima facia evidence of the respective facts contained in those documents and evidence. J. If the City submits any additional documents or evidence to the Hearing Officer for consideration at the administrative hearing, then a copy of the same shall be served by mail on the Owner or Responsible Person requesting the hearing at least five (5) days prior to the date of the administrative hearing. The failure of any person to receive such documents prior to the administrative hearing shall only entitle the Owner or Responsible Person to a reasonable continuance of the administrative hearing. K. If the Owner or Responsible Person desires to submit any documents or evidence to the Hearing Officer, then a copy of the same shall be served by mail on the City at least five (5) days prior to the date of the administrative hearing. The failure of the Owner or Responsible Person to comply with this requirement shall only entitle the City to a reasonable continuance of the administrative hearing. L. Other than is provided in this Section, no other discovery is permitted. The administrative hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. However, irrelevant or unduly repetitious evidence shall be excluded. M. The Hearing Officer may continue the hearing from time to time and /or request additional information from the City, the Owner or Responsible Person, or both prior to issuing a written decision. N. After considering all of the testimony and evidence submitted at the administrative hearing, the Hearing Officer shall issue a written decision within ten (10) days of 10 the administrative hearing. The written decision shall state the reasons for that decision. The decision of the Hearing Officer shall be final. O. The written decision of the Hearing Officer shall be served either by personal delivery on the Owner or Responsible Person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such Owner or Responsible Person to be notified, at their last known address as the same appears in the public records of the City. P. Any Owner or Responsible Person aggrieved by a written decision of a Hearing Officer following an administrative hearing may obtain review of the decision by filing a petition for review with the Orange County Superior Court, Harbor Justice Center in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4. 10.66.080 Collection of Delinquent Costs A. The amount of any civil fine imposed pursuant to this Chapter shall be deemed a debt owed to the City. B. At its discretion, the City may pursue any and all legal and equitable remedies to collect unpaid fines imposed pursuant to this Chapter. Pursuit of one remedy does not preclude the pursuit of any other remedy. It is intended that persons causing, maintaining, and /or permitting the violation, and not the taxpayers, bear the financial burden of the City's enforcement efforts. Remedies available to the City to collect unpaid fines and costs include the following, without limitation: 1. Referring the delinquent account to a collection agency; 2. Authorizing a lien to be recorded on the property for any civil fines imposed against the Owner; and /or 3. Authorizing a special assessment upon the property for any civil fines imposed against the Owner. C. The City shall be entitled to recover all costs related to enforcing any violation(s) of this Chapter that are recoverable under applicable local, state or federal law. D. Any person who fails to pay any fine shall be liable in any proceeding brought by the City for the costs incurred in securing payment of the unpaid amount, including without limitation, administrative costs and attorneys' fees. Such collection costs shall be in addition to any penalties, interest, and /or late charges imposed upon the unpaid fine. 10.66.090 Cumulative Remedies The remedies provided under this Chapter are cumulative, and shall not restrict the City's ability to pursue any other remedy to which it is entitled under law or equity. Nothing in this Chapter shall be deemed to preclude the imposition of any criminal penalty, nor shall 11 anything in this Chapter be deemed to conflict with any penalty or provision under state law, or prohibit any conduct authorized by the state or federal constitutions. Section 2: Sections 5.95.060 and 5.95.065 of the Newport Beach Municipal Code is hereby amended to read as follows: 5.95.060 Violations / Penalties / Revocation. A. Violations. Except as provided in subsections C and D, the following conduct shall constitute a violation for which the penalties specified in subsection B may be imposed, or the permit revoked: 1. The owner has failed to comply with the standard conditions specified in Section 5.95.050(A); 2. The owner has failed to comply with conditions imposed by the City Manager pursuant to the provisions of Section 5.95.050(B) or (C); 3. The owner has willfully violated the provisions of this chapter; or 4. The owner has failed to pay the transient occupancy tax as required by Chapter 3.16 of this code. B. Penalties. The penalties for violations specified in subsection A shall be as follows: 1. For the first violation within any twelve (12) month period, the penalty shall range from a notice of violation to a fine not to exceed two hundred and fifty dollars ($250.00); 2. For a second violation within any twelve (12) month period, the penalty shall range from a fine not to exceed five hundred dollars ($500.00) to revocation of the permit; 3. For a third violation within any twelve (12) month period, the penalty shall range from a fine not to exceed one thousand dollars ($1,000.00) to revocation of the permit; and 4. For a fourth violation within any twelve (12) month period, the permit shall be revoked in accordance with the provisions of Section 5.95.065. C. In the case of a short term lodging permit for a dwelling that is located in a Safety Enhancement Zone, the penalty for the failure to comply with any standard condition during the period that the Safety Enhancement Zone is in effect shall be a fine of one thousand dollars ($1,000.00) and /or revocation of the permit for a period not less than sixty (60) days. D. Revocation for Loud or Unruly Gathering. If a Lodging Unit that is subject to a short term lodging permit has been the location of three (3) or more Loud or Unruly Gatherings, as defined in Chapter 10.66 of this Code, while the Lodging Unit was occupied on a Short term basis within any twenty -four (24) month period, the permit shall be revoked. A Loud or Unruly Gathering that occurred prior to the passage of fourteen (14) calendar days from the mailing of notice to the Owner in compliance with subsection 10.66.030(D) shall not be included within the 12 calculation of the three (3) or more Loud or Unruly Gatherings required to revoke a short term lodging permit. 5.95.065 Procedure for Imposition of Penalties /Revocation. Penalties, including a notice of violation, shall be imposed, and permits shall be revoked, only in the manner provided in this section. A. The Finance Director shall conduct an investigation whenever he or she has reason to believe that an owner has committed a violation described in Section 5.95.060(A), (C), or (D). Should the investigation reveal substantial evidence to support a finding that a violation occurred, the Finance Director shall issue written notice intention to impose a penalty and /or revoke the permit. The written notice shall be served on the owner, shall specify the facts which in the opinion of the Finance Director, constitute substantial evidence to establish grounds for imposition of the penalties and /or revocation, and specify that the penalties will be imposed and /or the permit will be revoked within thirty (30) days from the date the notice is given unless the owner and /or operator files, with the City Clerk and before the penalties or revocation becomes effective, a request for hearing before the City Manager. B. If the owner requests a hearing within the time specified in subsection (A), the City Clerk shall serve written notice on the owner, by written mail, of the date, time and place for the hearing. The hearing shall be scheduled not less than fifteen (15) days, nor more than sixty (60) days, from the date on which notice of the hearing is served by the City Clerk. The City Manager may preside over the hearing or may designate a hearing officer to take evidence and submit proposed findings and recommendations to the City Manager. The City Manager shall impose the penalties or revoke the permit only upon a finding that a violation has been proven by a preponderance of the evidence, and that the penalty or revocation is consistent with the provisions of Section 5.95.060(8), (C), or (D). The hearing shall be conducted according to the rules normally applicable to administrative hearings. The City Manager shall render a decision within thirty (30) days of the hearing and the decision shall be final. Section 3: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption, and it shall be effective thirty (30) days after its adoption. 13 This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of , 2011, and adopted on the day of , 2011, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By KRW: 4 'DAVID R. HUNT, CITY ATTORNEY 14 � CITY OF NEWPORT BEACH CII`;' (,o{III H X1,.:11 Report Agenda o April • 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Police Department Jay R. Johnson, Chief of Police 949 - 644- 3701,jjohnson @nbpd.org PREPARED BY: Bill Hartford, Lieutenant 949 - 644 -3720, bhartford @nbpd.org APPROVED: u"\J TITLE: Loud and Unruly Gathering Ordinance The Loud and Unruly Gathering Ordinance would allow patrol officers to effectively control large parties or gatherings that have become a threat to public safety and welfare of the Community through a civil citation process. RECOMMENDATION: Introduce Ordinance No. 2011 adding Newport Beach Municipal Code Chapter 10.66 pertaining to Loud and Unruly Gatherings and amending Newport Beach Municipal Code sections 5.95.060 and 5.95.065 pertaining to Short Term Lodging Units, and pass to a second reading on May 10, 2011. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: Modeled after the Unruly Gatherings Ordinance in Tucson, Arizona, and other jurisdictions, the proposed Loud and Unruly Gathering Ordinance would establish civil fines for responsible persons that participate in, or part of, a loud or unruly gathering that consists of eight or more persons on any private residential property for a social occasion or other activity upon which loud or unruly conduct occurs and results in a public nuisance or a threat to the public health, safety, general welfare, or quite enjoyment of residential and nearby properties. 1 Loud and Unruly Gathering Ordinance April 26, 2011 Page 2 The proposed Ordinance was presented at the City Council Study Session on April 12, 2011. Many members of the Community spoke in favor of the proposed Ordinance during the City Council Study Session. Council Members requested several changes to the proposed Ordinance to address some concerns, as well as comments made by members of the public during the public comments portion of the meeting. The following revisions and additions were made: 1. Adding an amendment to NBMC sections 5.95.060 & 5.95.065 regarding the revocation of Short Term Lodging Permit for three or more Loud or Unruly Gatherings. 2. Adding a new subsection 10.66.060(C) regarding a person being subject to increased fines if they are present at a premises that has been posted with a notice. 3. Adding a "grace" period for landlords to modify leases in subsection 10.66.060(1). 4. Adding subsection 10.66.060(J) regarding a procedure for property owners to petition the City and seek to have a posted notice removed should the property owner demonstrate the Responsible Persons are no longer in possession of or allowed to occupy the property. 5. Change "Treasurer" to "Administrative Services /Finance Director." The Police Department will be working with members of the Revenue Division on finalizing a system for notification of fines and violations for cited responsible parties. The Police Department believes the system will be similar to the system currently used for fines and notifications related to Disturbance Advisement Cards for the Police Services at Large Gatherings Ordinance, NBMC Chapter 10.58. The Office of the City Attorney has worked extensively with the Police Department on drafting this Ordinance so that it is consistent with applicable laws and legal standards. This Ordinance, in addition to being modeled after a similar ordinance in Tucson, Arizona, is also modeled after the Unruly Gathering Ordinance for the Town of Narragansett, Rhode Island. Recently, the United States Court of Appeals, First Circuit, issued a decision that upheld Narragansett's Unruly Gathering Ordinance and found it to be constitutional. (URI Student Senate v. Town of Narragansett (15r Cir. 2011) 631 F.3d 1.) ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 2 Loud and Unruly Gathering Ordinance April 26, 2011 Page 3 NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: Attachment: A. Redraft of Loud and Unruly Gathering Ordinance 3 ORDINANCE NO. 2011- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER 10.66 TO THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO LOUD AND UNRULY GATHERINGS AND AMENDING SECTIONS 5.95.060 AND 5.95.065 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING SHORT TERM LODGING UNITS WHEREAS, the City of Newport Beach ( "City') is a charter city, governed by a charter adopted by the citizens of the City; and WHEREAS, Article XI, Section 5 of the Constitution of the State of California authorizes charter cities to enact ordinances with respect to their municipal affairs; and WHEREAS, the City Council finds and declares that due to inadequate supervision, some parties or other large gatherings of people frequently become loud and unruly to the point that they constitute a threat to the peace, health, safety, or general welfare of the public as a result of conduct such as one or more of the followings: excessive noise, excessive traffic, obstruction of public streets or crowds who have spilled over into public streets, obstruction of rights of way by people or vehicles participating in these large gatherings, public intoxication, the consumption by and provision of alcohol to minors, fights, disturbances of the peace, vandalism, urinating or defecating in public, and litter; and WHEREAS, the City Council finds and declares that the City's Police Department is sometimes required to make multiple responses to locations of such Loud or Unruly Gatherings in order to restore and maintain the peace and protect public safety. This causes an additional burden on scarce City resources, and can result in police responses to regular and emergency calls for service being delayed, and police protection to the rest of the City being reduced; and WHEREAS, the City Council finds and declares that the cited impacts negatively affect both the neighborhoods in which such Loud and Unruly Gathering occur and the public safety resources of the City; and WHEREAS, the City Council finds and declares that Loud or Unruly Gatherings are contrary to the public interest and problems associated with Loud or Unruly Gatherings are difficult to prevent or deter unless law enforcement has the additional legal authority to impose civil fines; and WHEREAS, the City Council finds and declares that it is the intent of this Chapter to protect the public health, safety, general welfare, and quiet enjoyment of residential property, rather than to punish; and 1 WHEREAS; the City Council finds and declares that persons who actively or passively aid, abet, or allow Loud or Unruly Gatherings should be held liable for the nuisances created by such gatherings, including, without limitation, the imposition of civil fines; and WHEREAS, the City Council finds that the proposed ordinance will not result in a direct or reasonably foreseeable indirect physical change in the environment (Section 15060(c)(2) of the California Environmental Quality Act Guidelines); and WHEREAS, this agenda item has been noticed in accordance with the Ralph M. Brown Act (72 hours in advance of the public meeting) and the item appeared upon the agenda for this meeting which was posted at City Hall and on the City's website. NOW THEREFORE, the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows: Section 1: Chapter 10.66 of Newport Beach Municipal Code is hereby added to read as follows.' Chapter 10.66 LOUD AND UNRULY GATHERINGS Sections: 10.66.010 Definitions 10.66.020 Loud or Unruly Gathering — Public Nuisance 10.66.030 Posting of Notice Regarding Loud or Unruly Gathering 10.66.040 Second and Subsequent Responses 10.66.050 Notice of Violation 10.66.060 Violation — Penalty— Civil Fine 10.66.070 Administrative Hearing, Appeal 10.66.080 Collection of Delinquent Costs 10.66.090 Cumulative Remedies 10.66.010 Definitions For the purposes of this Chapter, the following definitions shall apply: A. "Loud or Unruly Gathering" means a gathering of eight (8) or more persons on any private residential property for a social occasion or other activity upon which loud or unruly conduct occurs and results in a public nuisance or a threat to the public health, safety, general welfare, or quite enjoyment of residential property or nearby public property. 1. As used in this Chapter, loud or unruly conduct includes, without limitation, any or all of the following: 2 5 a. Excessive noise or traffic; b. Obstruction of public streets by crowds or vehicles; C. Obstruction of rights of way by people or vehicles d. Public drunkenness; e. The service of alcohol to Minors; f. Possession and /or consumption of alcohol by Minors; g. Assaults, batteries, fights, domestic violence or other disturbances of the peace; h. Vandalism; i. Litter; or j. Urinating or defecating in public. 2. Loud or unruly conduct does not include any activity that is: a. Protected by Article 1, Section 4 of the California Constitution; b. Protected by the First or Fourteenth Amendments to the United States Constitution; or C. Regulated by the California Alcoholic Beverage Control Act. B. "Responsible Person" means and includes without limitation: 1. Any person(s), including any business, company or entity, who owns, rents, leases, or otherwise has control of the premises where a Loud or Unruly Gathering occurs; or 2. Any person(s) in charge of the premises where a Loud or Unruly Gathering occurs; or 3. Any person(s), including any business, company or entity, who organizes or sponsors a Loud or Unruly Gathering; or 4. Any person(s) who attends a Loud or Unruly Gathering and engages in loud or unruly conduct. If the Responsible Person is a Juvenile, then the parent(s) or guardian(s) of that Juvenile shall also be considered a Responsible Person. C. "Juvenile' means any person under the age of eighteen (18) years old. D. "Minor" means any person under the age of twenty -one (21) years old. 10.66.020 Loud or Unruly Gathering — Public Nuisance A. It shall be unlawful and constitute a public nuisance for any Responsible Person to cause or allow a Loud or Unruly Gathering to occur on any private residential property within the City. A Loud or Unruly Gathering may be abated by the City by all reasonable means, including, but not limited to, an order of a peace officer requiring the Loud or Unruly Gathering to be disbanded, the issuance of citations, 0 and /or the arrests of any person(s) committing a violation of law under applicable State or local laws. B. Nothing in this section shall be construed to impose liability on a resident or owner of the property, the person in charge of the premises, or the organizer or sponsor of the gathering, for the conduct of persons who are present without the express or implied consent of resident, person in charge of the premises or the organizer or sponsor, as long as the resident, person in charge of the premises or the organizer or sponsor have taken all steps reasonably necessary to exclude such uninvited persons from the premises, including landlords who are actively attempting to evict a tenant from the premises. C. Where an invited guest engages in conduct which the resident, person in charge of the premises, or the organizer or sponsor could not reasonably foresee and the conduct is an isolated instance of an invited guest at the event violating the law which the resident, person in charge of the premises, or the organizer or sponsor is unable to reasonably control without the intervention of a peace officer, the unlawful conduct of the individual invited guest shall not be attributable to the property owner, resident, person in charge of the premises, or the organizer or sponsor for the purpose of determining whether the event constitutes a Loud or Unruly Gathering. 10.66.030 Posting of Notice Regarding Loud or Unruly Gathering A. Posting of Premises. When a peace officer intervenes at a Loud or Unruly Gathering, the premises on which the Loud or Unruly Gathering occurs shall be posted with a notice stating (1) that the intervention was necessary as a result of a public nuisance caused by a Loud or Unruly Gathering; (2) the date of the intervention; (3) that any subsequent Loud or Unruly Gathering within one hundred and eighty (180) days from the date of the prior Loud or Unruly Gathering may result in civil fines for all Responsible Person(s) as well as any other person present at the subsequent Loud or Unruly Gathering; and (4) that is it unlawful to remove, utter, tamper with or deface the notice. B. Without written authorization from the City, it shall be unlawful for any person to remove, alter, tamper with or deface the posted notice of a Loud or Unruly Gathering from the premises prior to the expiration of the entire one hundred and eighty (180) day period from the date of posting. C. Without written authorization from the City, it shall be unlawful and subject to a civil fine for any person who owns, rents, leases, or otherwise has control of the premises where a notice has been posted of a Loud or Unruly Gathering to allow the removal, alteration, tampering with, or defacement of, the posted notice of a Loud or Unruly Gathering from the premises prior to the expiration of the entire one hundred and eighty (180) day period from the date of posting. 0 7 D. Mailing of Notice to Property Owner. If a notice is posted pursuant to 10.66.030(A) and the owner of the property is different than any Responsible Person who received a citation at or near the time of posting the notice, a notice concerning the Loud or Unruly Gathering shall be mailed to such owner of the property at the address shown on Orange County's last equalized property tax assessment roll, or the supplemental roll, whichever is more current. The notice shall advise the property owner that any subsequent Loud or Unruly Gathering on the same premises with one hundred and eighty (180) days of the Loud or Unruly Gathering that is the subject of the notice may result in additional civil fines as established by this Chapter. 10.66.040 Second and Subsequent Responses If after posting of a notice pursuant to subsection 10.66.030(A), a peace officer is required to respond to the premises based upon another Loud or Unruly Gathering within a one hundred and eighty (180) day period after the posting of said notice, then all Responsible Persons shall be liable for the civil fine amounts as set forth in this Chapter, except the owner(s) of the property shall not be liable for the increased fine amount for a second or subsequent response unless notice has been mailed to the property owner in compliance with subsection 10.66.030(D) and fourteen (14) calendar days have passed since the mailing of said notice. 10.66.050 Notice of Violation A. The City shall give notice of a violation of section 10.66.020(A) by issuing a Notice of Violation to the Responsible Person within a reasonable time following the violation, but not exceeding forty -five (45) days. The Notice of Violation shall be served either by personal delivery on the Responsible Person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such Responsible Person to be notified, at their last known address as the same appears in the public records of the City. B. Service by personal delivery shall be deemed to have been complete when served on the Responsible Person. Service by mail shall be deemed to have been completed at the time of deposit by the City in the mail for delivery by the United States Postal Service. C. The Notice of Violation shall include the following information: 1. The name of the Responsible Person; 2. The address of the premises where the Loud or Unruly Gathering occurred; 3. The date and time of the response by a peace officer to the Loud or Unruly Gathering; 4. A summary description of the loud or unruly conduct; 5. The name of the peace officer who ordered the Loud or Unruly Gathering disbanded, issued citations, or posted the premises; 5 13 6. An order prohibiting the continuation or repeated occurrence of the violation; 7. A statement concerning the amount of the civil fine imposed and an explanation of how and when to pay the civil fine; 8. Notification of the right to appeal, including the time within which the violation may be contested and the place to submit a written appeal; and 9. Notification that the City may impose a lien on the subject property, or pursue other lawful means to collect the civil fine, in the event of non - payment of any civil fines. 10.66.060 Violation — Penalty Civil Fine A. The following civil fines shall be assessed for violations of subsection 10.66.020(A) of this Chapter: 1. A civil fine not exceeding five hundred dollars ($500.00) for a first violation; 2. A civil fine not exceeding one thousand dollars ($1,000.00) for a second violation within one hundred and eighty (180) days of the first violation; 3. A civil fine not exceeding two thousand dollars ($2,000.00) for a third violation within one hundred and eighty (180) days of the first violation; and 4. A civil fine not exceeding three thousand dollars ($3,000.00) for a fourth and any subsequent violations within one hundred and eighty (180) days of the first violation. B. The following civil fines shall be assessed for violations of subsection 10.66.020(A) of this Chapter that occur within the West Newport Safety Enhancement Zone, as established by Section 1.04.060 of this Code: 1. A civil fine not exceeding one thousand five hundred dollars ($1,500.00) for a first violation; 2. A civil fine not exceeding three thousand dollars ($3,000.00) for a second violation within one hundred and eighty (180) days of the first violation; 3. A civil fine not exceeding five thousand dollars ($5,000.00) for a third violation within one hundred and eighty (180) days of the first violation; and 4. A civil fine not exceeding eight thousand dollars ($8,000.00) for a fourth and any subsequent violations within one hundred and eighty (180) days of the first violation. C. Any Responsible Person who is present at a premises that has a notice posted pursuant to section 10.66.030(A) shall be presumed to have notice of the prior violation(s) by virtue of the posted notice(s) and shall be subject to a civil fine according to the number of violation(s) at the premises within the preceding one hundred and eighty (180) day period pursuant to the civil fine schedules in subsections 10.66.060(A) or (B) above. D. A civil fine not exceeding two thousand dollars ($2,000.00) shall be assessed for a violation of subsection 10.66.030(6) of this Chapter. Additionally, any person 0 violating subsection 10.66.030(6) may be prosecuted for a misdemeanor, and upon conviction, shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment. E. A civil fine not exceeding one thousand dollars ($1,000.00) shall be assessed for a violation of subsection 10.66.030(C) of this Chapter. F. All civil fines imposed under this Chapter shall be due and payable to the City's Administrative Services Department within the earlier of thirty (30) days from the issuance of a citation or service of the Notice of Violation. G. Any Responsible Person who is unable to pay the civil fine may file a written request for a civil fine waiver or payment plan with the City's Administrative Services / Finance Director within fifteen (15) calendar days from the date of service of the citation or Notice of Violation, whichever is earlier. The failure of any Responsible Person to timely file a written request for a civil fine waiver or payment plan with the City's Administrative Services / Finance Director shall be deemed a failure to exhaust the Responsible Person's administrative remedies with regard to the same. 1. The written. request for a civil fine waiver or payment plan shall be in writing, describe with particularity why the fine cannot be paid or indicate what the Responsible Person believes would constitute a reasonable payment plan for payment of the civil fine in full over time. Further, the written request for a civil fine waiver or payment plan must be accompanied by a sworn affidavit and demonstrate to the satisfaction of the City's Administrative Services / Finance Director the Responsible Person's actual financial inability to pay the full civil fine amount or need for a reasonable payment plan. The City's Administrative Services / Finance Director is entitled to request additional documentation and information from the Responsible Person in order to fully assess the Responsible Person's financial inability to pay the civil fine or be subject to a reasonable payment plan. The failure of any Responsible Person to timely submit all requested additional documentation and information to the City's Administrative Services / Finance Director as requested shall be deemed a failure to exhaust the Responsible Person's administrative remedies with regard to the same. 2. Once a complete written request civil fine waiver or payment plan is filed with the City's Administrative Services / Finance Director, the requirement to pay the civil fine shall be stayed until the City's Administrative Services / Finance Director determines whether to grant or deny the request. 3. If the City's Administrative Services / Finance Director grants the written request for a civil fine waiver, the Responsible Person shall not be required to pay the civil fine. If the City's Administrative Services / Finance Director determines that the Responsible Person has the financial ability to pay the civil fine on a reasonable payment plan, the City's Administrative Services / Finance Director shall so notify the Responsible Person and the 7 10 Responsible Person shall execute any agreements required by the City's Administrative Services / Finance Director to establish the payment plan. Any payment plan established for the payment of a civil fine under this Chapter shall not exceed three hundred and sixty -five (365) days from the date of the City Administrative Services / Finance Director's determination. 4. The granting of any request for a civil fine waiver or payment plan shall not excuse or discharge any continuation or repeated occurrence of any violation of this Chapter, nor shall it bar further enforcement action by the City. 5. If the City's Administrative Services / Finance Director denies the written request for a fee waiver or payment plan, the fee must be paid within fifteen (15) calendar days from the date of personal delivery on the Responsible Person or mailing of the City Administrative Services / Finance Director's determination. 6. The City Administrative Services / Finance Directors determination shall be (i) made within fifteen (15) calendar days of the date of receipt of the request; (ii) be in writing; and (iii) served either by personal delivery on the Responsible Person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such Responsible Person. The decision of the City's Administrative Services / Finance Director shall be final. H. The civil fines and criminal penalties imposed in this Chapter shall be in addition to any other fines and /or penalties imposed for violations of local, state, and /or federal law during a Loud or Unruly Gathering. Any property owner who has (i) included covenants within the written lease or rental agreement for the premises on which a Loud or Unruly Gathering occurs that contain specific language prohibiting the activities described in this Chapter; and, (ii) demonstrated due diligence in abating an unmanageable tenant(s) or Responsible Person(s), as defined in section 10.66.010(6)(2 -4), for a Loud or Unruly Gathering, shall not be liable under this Chapter. Prior to June 1, 2012, a property owner who has a written lease or rental agreement for the premises on which a Loud or Unruly Gathering has occurred shall only need to demonstrate due diligence in abating an unmanageable tenant(s) or Responsible Person(s), as defined in section 10.66.010(6)(2 -4), for a Loud or Unruly Gathering to not be liable under this Chapter. J. Any property owner who has a written lease or rental agreement for their private residential property and had the same private residential property posted with a notice pursuant to section 10.66.030(A), may file a written petition with the Chief of Police, or his or her designee, requesting permission to remove posted notice prior to the expiration of the one hundred and eighty (180) day period. The Chief of Police, or his or her designee, may grant the property owners written petition upon a satisfactory showing by the property owner that the Responsible Person(s), as defined in section 10.66.010(6)(2 -4), for the Loud or Unruly Gathering are no longer in possession of or allowed to occupy the private residential property. E 11 K. Failure to receive any notice specified in this Chapter does not affect the validity of proceedings conducted hereunder. 10.66.070 Administrative Hearing, Appeal A. Any Responsible Person who, pursuant to this Chapter, is (1) subject to a civil fine; or, (2) have had their premises posted with a notice concerning a Loud or Unruly Gathering, shall have the right to file a request for an administrative hearing to appeal the imposition of the civil fine and /or the posting of the premises. Any such request shall be submitted to the City in writing on the form required by the City within thirty (30) days from the date of service of the citation, Notice of Violation or posting of the premises, whichever is earlier. The written request for an administrative hearing shall be submitted to the City with an advance deposit of the civil fine, unless the Responsible Person has been granted a civil fine waiver or payment plan by the City's Administrative Services / Finance Director pursuant to subsection 10.66.060(F). B. The failure of any Responsible Person to timely file a written request for a hearing, as required in this Section, shall be deemed a failure to exhaust the Responsible Person's administrative remedies and render the citation, Notice of Violation and /or posting of the premises final. C. Any civil fine which has been deposited shall be refunded if it is determined, after an administrative hearing, that the Responsible Person who requested the administrative hearing was not responsible for the violation(s) or there was no violation(s) as charged in the citation, Notice of Violation or posting on the premises. If, after the administrative hearing, it is determined that the Responsible Person was responsible for the violation(s), any civil fine previously deposited shall be retained by the City. D. The City Manager for the City shall designate the Hearing Officer for the administrative hearing. The Hearing Officer shall not be an employee of the City. The employment, performance evaluation, compensation and benefits of the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the result of the administrative hearing as determined by the Hearing Officer. E. A hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this Chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. The City and the Responsible Person may mutually agree to waive or modify these time restrictions in writing. F. The Hearing Officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the Responsible Person is liable for the violation(s). 9 12 G. The Responsible Person requesting the administrative hearing shall be given the opportunity to testify and present witnesses and evidence concerning the violation(s). H. The failure of any Responsible Person to appear at the administrative hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative remedies, and render the citation, Notice of Violation, or posting of the premises final, including any civil fine imposed thereby. I. The citation, Notice of Violation, and /or posted notice on the premises, together with any additional documents or evidence submitted by the City shall constitute prima facia evidence of the respective facts contained in those documents and evidence. J. If the City submits any additional documents or evidence to the Hearing Officer for consideration at the administrative hearing, then a copy of the same shall be served by mail on the Responsible Person requesting the hearing at least five (5) days prior to the date of the administrative hearing. The failure of any person to receive such documents prior to the administrative hearing shall only entitle the Responsible Person to a reasonable continuance of the administrative hearing. K. If the Responsible Person desires to submit any documents or evidence to the Hearing Officer, then a copy of the same shall be served by mail on the City at least five (5) days prior to the date of the administrative hearing. The failure of the Responsible Person to comply with this requirement shall only entitle the City to a reasonable continuance of the administrative hearing. L. Other than is provided in this Section, no other discovery is permitted. The administrative hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. However, irrelevant or unduly repetitious evidence shall be excluded. M. The Hearing Officer may continue the hearing from time to time and /or request additional information from the City, the Responsible Person, or both prior to issuing a written decision. N. After considering all of the testimony and evidence submitted at the administrative hearing, the Hearing Officer shall issue a written decision within ten (10) days of the administrative hearing. The written decision shall state the reasons for that decision. The decision of the Hearing Officer shall be final. 10 13 O. The written decision of the Hearing Officer shall be served either by personal delivery on the Responsible Person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such Responsible Person to be notified, at their last known address as the same appears in the public records of the City. P. Any Responsible Person aggrieved by a written decision of a Hearing Officer following an administrative hearing may obtain review of the decision by filing a petition for review with the Orange County Superior Court, Harbor Justice Center in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4. 10.66.080 Collection of Delinquent Costs A. The amount of any civil fine imposed pursuant to this Chapter shall be deemed a debt owed to the City by the Responsible Person. B. At its discretion, the City may pursue any and all legal and equitable remedies to collect unpaid fines imposed pursuant to this Chapter. Pursuit of one remedy does not preclude the pursuit of any other remedy. It is intended that persons causing, maintaining, and /or permitting the violation, and not the taxpayers, bear the financial burden of the City's enforcement efforts. Remedies available to the City to collect unpaid fines and costs include the following, without limitation: 1. Referring the delinquent account to a collection agency; 2. Authorizing a lien to be recorded on the property; and /or 3. Authorizing a special assessment upon the property. C. The City shall be entitled to recover all costs related to enforcing any violation(s) of this Chapter that are recoverable under applicable local, state or federal law. Before invoking any of the procedures described in this section, the City shall provide notice to the property owner, if different from the Responsible Person, based on Orange County's last equalized property tax assessment role, or the supplemental roll, whichever is more current. D. Any person who fails to pay any fine shall be liable in any proceeding brought by the City for the costs incurred in securing payment of the unpaid amount, including without limitation, administrative costs and attorneys' fees. Such collection costs shall be in addition to any penalties, interest, and /or late charges imposed upon the unpaid fine. 10.66.090 Cumulative Remedies The remedies provided under this Chapter are cumulative, and shall not restrict the City's ability to pursue any other remedy to which it is entitled under law or equity. Nothing in this Chapter shall be deemed to preclude the imposition of any criminal penalty, nor shall 11 14 anything in this Chapter be deemed to conflict with any penalty or provision under state law, or prohibit any conduct authorized by the state or federal constitutions. Section 2: Sections 5.95.060 and 5.95.065 of the Newport Beach Municipal Code is hereby amended to read as follows: 5.95.060 Violations / Penalties / Revocation. A. Violations. Except as provided in subsections C and D, the following conduct shall constitute a violation for which the penalties specified in subsection B may be imposed, or the permit revoked: 1. The owner has failed to comply with the standard conditions specified in Section 5.95.050(A); 2. The owner has failed to comply with conditions imposed by the City Manager pursuant to the provisions of Section 5.95.050(B) or (C); 3. The owner has willfully violated the provisions of this chapter; or 4. The owner has failed to pay the transient occupancy tax as required by Chapter 3.16 of this code. B. Penalties. The penalties for violations specified in subsection A shall be as follows: 1. For the first violation within any twelve (12) month period, the penalty shall range from a notice of violation to a fine not to exceed two hundred and fifty dollars ($250.00); 2. For a second violation within any twelve (12) month period, the penalty shall range from a fine not to exceed five hundred dollars ($500.00) to revocation of the permit; 3. For a third violation within any twelve (12) month period, the penalty shall range from a fine not to exceed one thousand dollars ($1,000.00) to revocation of the permit; and 4. For a fourth violation within any twelve (12) month period, the permit shall be revoked in accordance with the provisions of Section 5.95.065. C. In the case of a short term lodging permit for a dwelling that is located in a Safety Enhancement Zone, the penalty for the failure to comply with any standard condition during the period that the Safety Enhancement Zone is in effect shall be a fine of one thousand dollars ($1,000:00) and /or revocation of the permit for a period not less than sixty (60) days. D. Revocation for Loud or Unruly Gathering. If a Lodging Unit that is subject to a short term lodging permit has been the location of three (3) or more Loud or Unruly Gatherings, as defined in Chapter 10.66 of this Code, while the Lodging Unit was occupied on a Short term basis within any twenty -four (24) month period, the permit shall be revoked. 12 15 5.95.065 Procedure for Imposition of Penalties /Revocation. Penalties, including a notice of violation, shall be imposed, and permits shall be revoked, only in the manner provided in this section. A. The Finance Director shall conduct an investigation whenever he or she has reason to believe that an owner has committed a violation described in Section 5.95.060(A), (C), or (D). Should the investigation reveal substantial evidence to support a finding that a violation occurred, the Finance Director shall issue written notice intention to impose a penalty and /or revoke the permit. The written notice shall be served on the owner, shall specify the facts which in the opinion of the Finance Director, constitute substantial evidence to establish grounds for imposition of the penalties and /or revocation, and specify that the penalties will be imposed and /or the permit will be revoked within thirty (30) days from the date the notice is given unless the owner and /or operator files, with the City Clerk and before the penalties or revocation becomes effective, a request for hearing before the City Manager. B. If the owner requests a hearing within the time specified in subsection (A), the City Clerk shall serve written notice on the owner, by written mail, of the date, time and place for the hearing. The hearing shall be scheduled not less than fifteen (15) days, nor more than sixty (60) days, from the date on which notice of the hearing is served by the City Clerk. The City Manager may preside over the hearing or may designate a hearing officer to take evidence and submit proposed findings and recommendations to the City Manager. The City Manager shall impose the penalties or revoke the permit only upon a finding that a violation has been proven by a preponderance of the evidence, and that the penalty or revocation is consistent with the provisions of Section 5.95.060(B), (C), or (D). The hearing shall be conducted according to the rules normally applicable to administrative hearings. The City Manager shall render a decision within thirty (30) days of the hearing and the decision shall be final. Section 3: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section 4: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption, and it shall be effective thirty (30) days after its adoption. 13 16 This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of , 2011, and adopted on the day of , 2011, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By NtQllk. VNIT, CITY ATTORNEY 17 1- 949 - 955 -3681 BoardoPDirectars SOUTH COAST APARTMENT ASSOCIATION 03:13:45 p.m. 05 -10 -2011 212 RECEIVED "REPERIED 47ER AGENDA A Chapter of the California Apartment Assoalitra 0 President Danye8 Alders Avalonaay Communities, Inc Vice President Jeffrey M. Batley, CPM ERE Properties Secretary Lor1A Torre; CPM Irvine Company Apartment Communities Treanner Sandy Pedersen, CAM Archstene Immediate Para President Scott v. Monroe, CPM Park Avenue Asset Management May 9, 201 I CrF!CE OF Honorable Mayor Mike Henn I�i` C(Pf CLERK And Members of the City Council CITl QF "!`'K';pCRT BEACH City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Agenda Item %VII, #13 Loud and Unruly Gatherings Ordinance Honorable Mayor and Council members, On behalf of the members of the South Coast Apartment Association, who own /manage more than 6,400 rental housing units in the City of Newport Beach, we respectfully request revisions to the proposed ordinance in order to protect our member's business interests. Michael 81cseti We attended the Safety Committee meeting on May 4, and subsequently have SARENtEGIS Group met with the Deputy City Attorney and Police Lt. Bill Hartford to discuss our DavidA.Camoned,CPM concerns. Some of our concerns have been resolved to our satisfaction, but there Far West Management Corporation remains 01e issue of posting a notice (8x10 fluorescent orange) on the front of w steveGilmone each rental unit in which an offense has occurred and requiring the owner to keep Shea Properties the notice up for six months unless the tenant is evicted. This seems punitive, Melinda Graham, CPM first to the tenant as this could be their first offense, and secondly, to the property Camden Properties owner, as it could also be the first offense at the property. In addition, posting a Lour KhourionaiPropertyManagement Western Huge, brightly colored notice, in effect, a "scarlet letter", on the property for six months could well impact the ability of the property owner to rent out nearby Ted lOmta4 f10 Fisq. apartment units which is also unitive. Law Offices Or Kimball They 65t John tip P > P Shen Martin, ePM Lyon Communities We would a reciate it if the ordinance could be amended to delete the posting PP Cindy Shepardson, CPM of any notice, or at the very least, posting of a black and white notice for a uDR shorter period of time. In the City of Fontana, which is the only other southern Linda Zeiler California city with this type of ordinance, the notice is posted for 90 days, and Gerson Eakar i Associates if there is a second offense within that period, it can be posted for an additional 90 days. While we would prefer not to Have the notice posted at all, this is obviously more suitable, and provides the City with flexibility in dealing with the Judith u hA.LeganPrertaent ALegan situation while protecting the rights of the property owner to conduct business. P g g. P P rtY There is another section which we would like clarified: 10.66.050 Notice of Platinum vel aanoas Violation, C -9, stales that the City may impose a lien on the subject property in the event of non - payment of civil fines. The City Attomey told us that is only if HDSuperarpeteorporation the roe owner is the Responsible Person and we would like language to that HD Supply property m' P � Law Offices ofKrmball,Tirey✓b St. John LLP effect included in the ordinance. We don't think the Owner's property should be liened if the violations were caused by others and they owe the fines. Thank you for your consideration of our concerns. SOUTH COAST APARTMENT ASSOCIATION By Judith A. Legan, Executive Vice President W557 MacArthur 8OulwarcLSU1te205, ne. CA 926f2 o Phone:909.9553695. Emtg2i1996 c Fam949 -95536 E7 e enroll: SrllptAssn @aol.com n wwwSCJWn/e.com