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HomeMy WebLinkAbout5.1 Curfew Ordinance 5852 CITY OF DUBLIN AGENDA STATEMENT CITY COUNCIL MEETING DATE: October 10, 1983 SUBJECT Public Hearing - Curfew Ordinance EXHIBITS ATTACHED Memorandum from City Attorney dated April 22 , 1983 ; Draft Ordinance; Memorandum from Chief Shores dated June 23 , 1983 i2ECOMMENDATIO��: Open Public Hearing and receive testimony Close Public Hearing Take Appropriate Action FINANCIAL STATEMENT: Undetermined DESCRIPTION At its meeting of September 12 , 1983 , the City Council directed Staff to notice a public hearing for consideration of a curfew ordinance . The City Attorney has prepared a curfew ordinance which is substantially the same as the Sacramento Curfew Ordinance which had been upheld in Court. It is recommended that the City Council receive public testimony and consider the desirability of implementing a curfew ordinance in the City of Dublin. ---------------------------------------------------------------------------- � ^ COPIES TO: Elmer & Diane Hanus ITEM NO- 1/ . 1 THE CITY OF DUBLIN P.O. Box 2340 Dublin.CA 94566 (415) 829-3543 April 22, 1983 TO: City Council, Rich Ambrose and Tom Shores FROM: Michael R. Nave RE: Regulation of Minors; Control. of Nuisances As a result of the citizen complaints to the Council regarding the police response to a juvenile party, I have re- viewed California law to ascertain the au.ailability of measures which can be used to control the type of disturbance described. At the April 11th Council meeting, I indicated some concern that a curfew ordinance may be unconstitutional. In 'fact, the California Supreme Court has determined that certain types of curfew ordinances are unconstitutional. The leading case of In re Nancy C . , (1972) , 28 C .A. 3d 747 , 755-756 , which upheld a Sacramento juvenile curfew ordinance, explains the distinction between the constitutional and unconstitutional curfew ordinances : "Curfew statutes. can be classified into two groups according to the conduct pro- scribed, i .e . , "presence" or "loitering" . (Citation. ) Those proscribing "presence" or "being in" particular places have been held unconstitutional . (Citations . ) Those interpreted as only proscribing "loitering" or "remaining" have been held constitutional. (Citations . ) Even those .-ordinances pro- scribing "presence" may be reasonable if sufficient exceptions are included making it clear that mere• "presence" alone is not proscribed . (Citation. ) The rationale of those cases .holding that ordinances proscribing "presence" are un- constitutional is that they . are unnecessarily broad . As the court noted in Alves v. Justice Court, supra, 148 Cal .App. 2d 419 , 424-425 : ' True, the ordinance would preclude aimless loitering by minors in public places during the hours set forth, but it would also make unlawful many other activities by minors which otherwise would be entirely lawful . '" To: City Council , Rich Ambrose and Tom Shores Re : Regulation of Minors; Control of Nuisances April 22 , 1983 Page Two Observing that the Sacramento ordinance prohibits a minor from "loitering, idling, wandering, strolling, .or playing, in or upon the public streets after 10 : 00 p.m. " , the court determined that the Sacramento ordinance was a loitering rather than a presence type of ordinance because the words taken together and used ..in their ordinary sense prohibit tarrying and remaining in place and not merely being present. The court held that the Sacramento ordinance was con- stitutional : "Applying the constitutional standard set forth by the court in Thistlewood, supra, the ordinance is constitutional. The evil to be prevented is danger to children and the incidence of juvenile crime during nighttime hours . To forbid juveniles from loitering in the streets during nighttime hours .has real and substantial relationship to the dual goal of protection .of children and the community, and the ordinance in question does not unduly restrict the rights of minors in view of these interests . " In re Nancy C. , supra, 28 C.A. 3d 747 at 758 The Sacramento curfew ordinance is attached hereto. Several Bay Area cities have enacted ordinances which prohibit the playing of radios and stereos in a loud manner. Such an ordinance could be especially effective in controlling the type of party that was the subject of the complaint from the Bonniewood Lane residents . A copy of the Moraga ordinance is attached. Lastly, set forth below are some of the California statutes which may be used to control juveniles or any civil disobedience: A. Penal Code Sections : 415 Disturbing the peace 407 Unlawful assembly (amended) 408 Participation in rout or unlawful assembly To: City Council, Rich Ambrose and Tom Shores Re : Regulation of Minors; Control of Nuisances April 22 , 1983 Page Three 409 Remaining present at the scene of a rout, riot, or unlawful assembly 416 Assembly to disturb the peace and failure to disperse 404 . 6 Inciting a riot 403 Disturbance of Assembly 302 Disturbing a religious meeting 602 ( j) Criminal trespass 602 (0) Refusal to leave public agency building after closing . 602 . 10 Obstruction of students or instructors from classes at UC, JC, or State Colleges 594 Malicious mischief 242 Battery 370 Public Nuisance 148 Resisting arrest 555 Trespass upon posted property 587 (2) Interference with railroads 587 (b) Interference with railroads 415 . 5 Disorders and disturbances at Public Schools 626 Definitions used in School Disturbance sections 626 . 2 Suspended student entering school grounds without written consent 626 . 4 Authorization to withdraw consent to remain on campus To: City Council , Rich Ambrose and Tom Shores Re : Regulation of Minors; Control of Nuisances April 22 , . 1983 Page Four 626 . 6 Unauthorized persons on campus 626 . 8 Unauthorized persons on campus or adjacent areas 647 (i) Unauthorized lodging in public or private building 11460 "Paramilitary organizations"-- groups that engage rioting, violent disruptions or interfer- ence with school activities. B . Vehicle Code Sections: 23110 (a) (b) Throwing substances at vehicles 22500 et seq . Prohibition of stopping, standing, or parking 10852 Breaking or removing _ vehicle parts 10853 Malicious mischief to vehicle 21100 et seq. Traffic regulations 21109 Underpasses , bridges and viaducts 21113 (a) Public grounds C. Education Code Sections : 16701 Disturbance at a public school 23501 Campus police 24651 Campus police as peace officers 10605 . 5 Duty of school officials 13558 . 5 Interference with school activities MRN/jm SACRAMENTO CURFEW ORDINANCE "It is unlawful for any minor under the age of eighteen years to loiter, idle, wander , stroll or .play in or upon the public streets, highways , roads , alleys , parks , playgrounds , or other public grounds , public places and public buildings , places of amusement and eating places , vacant lots or any unsupervised place between the hours of ten p.m. and daylight immediately following; provided, how- ever , that the provisions of this section do not apply when the minor is accompanied by his or her parents , guardian or other adult person having the care and custody of the minor , or when the minor is upon an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor or when the minor is re- turning directly home from a meeting, entertainment, recrea- tional activity or dance . Each violation of the provisions of this section shall constitute a separate offense . " MORAGA ORDINANCE "It is unlawful for a person within a residential zone of the town to use or operate a radio receiving set, musical instrument, phonograph, television set, or other machine or device for_ the producing or reproducing of sound (between the hours of 10 p.m. .of one day and .8 a.m. of the following day) in such a manner as to disturb the peace, quiet and comfort of neighboring residents or of a reason- able person of normal sensitiveness residing in the area. " ORDINANCE NO. AN ORDINANCE OF THE CITY OF DUBLIN ESTABLISHING A CURFEW THE CITY COUNCIL OF THE CITY OF DUBLIN DOES ORDAIN AS FOLLOWS : Section 1 . PROHIBITED. CONDUCT It is unlawful for any minor under the age of eighteen (18) years to loiter, idle, wander, stroll or play in or upon the public streets , highways , roads , alleys , parks , playgrounds , or other. public grounds , public places and public buildings , places of amusement and eating places , vacant lots or any unsupervised place between the hours of 10 :00 p .m. and daylight immediately following: Section 2 . EXCEPTIONS The provisions of Section 1 do not apply when the minor is accompanied by his or her parents , guardian or other adult person having the care and custody of the minor, or when the minor is upon an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor or when the minor is returning directly home from a meeting, entertainment, recreational activity or dance . Section 3 . VIOLATION OF THIS ORDINANCE Each violation of this Ordinance shall con- stitute a separate offense; and, persons violating this Ordinance shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine not to exceed $500 .00 or by imprisonment in the county jail for a period not exceed- ing thirty ( 30) days, or both such fine and imprisonment. Section 4 . IMMEDIATE EFFECT This Ordinance is necessary for the preserva- tion of the public peace , health and welfare and shall take effect immediately. Section 5 . POSTING OF ORDINANCE The City Clerk of the City of Dublin shall cause this Ordinance to be posted in at least three ( 3) public ORDINANCE NO. Page Two places in the City of Dublin in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED by the City Council of the City of Dublin on this 10th day of October, 1983 , by the following votes : AYES : NOES : ABSENT: Mayor ATTEST: By City Clerk. ALAMEDA COUNTY SHERIFFS DEPARTMENT From: LT TOM SHORES JUNE 23, 1983 1d Date: 'ro: MR AMBROSE Subject: RECOMMENDATION FOR LOITERING. AND NOISE ORDINANCES I recommend that the City adopt two new ordinances; a juvenile loitering ordinance and a disturbing noise ordinance, similiar to the Sacramento curfew and Moraga noise ordinances. Such ordinances can be used as a police tool in protecting neighborhoods from unruly and disturbing parties as they would restrict the conduct of individuals more than present law is capable of. Calif. Penal Code, 415 section states, "Any person who MALICIOUSLY and .WILLFULLY disturbs another person by loud and unreasonable noise"--the District Attorney finds it is almost impossible to prove this charge because of the twin requirements of malicious and willfull conduct. A city ordinance need not contain this restrictive language and therefore can be used more effectively than 415 PC to quell disturbing events. Presently, there is no code that restricts the movement of juveniles who are wandering or loitering at night without parental_ or adult control. Without such a code, the police are hard put to deal with juveniles who are otherwise not breaking any observable law. The courts have held and commonsense dictates that both community and juvenile are better served when there are some perimeters placed on juvenile nighttime activities. An ordinance that precludes juveniles from wandering or loitering about at night. without parental or responsible adult supervision would be an.effective police tool that could be applied to any number of situations including large and disturbing parties. I have consulted both adult and juvenile District Attorney offices and have been assured that both will prosecute ordinances that are similiar to the Sacramento and Moraga ordinances. IML 37 (Rev. 8/71)