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Home My WebLink About6.1 Loitering Provisions CITY CLERK File # D[9~~-~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: February 7, 2006 SUBJECT: ATTACHMENTS: RECOMMENDATION~ FINANCIAL STATEMENT: Adoption of Ordinance Amending the Loitering Provisions of the Dublin Municipal Code Report Prepared by: Elizabeth H Silver, City Attorney and Inga Lintvedt, City Attorney's Office 1. 2. Dublin Municipal Code Chapter 5.04 Draft Ordinance Amendment Chapter 5.04 of the Dublin Municipal Code 1. 2. 3. 4. 5. Open Public Hearing and Receive Staff Presentation; Take Testimony from Public; Question Staff and Public; Close Public Hearing and Deliberate; and Waive Reading and Introduce the Ordinance Amending Chapter 5.04 ofthe Dublin Municipal Code, and continue the matter to the February 21,2006, Council meeting. No financial impact at this time. DESCRIPTION: The Dublin Municipal Code Chapter 5.04 (see Attachment 1) prohibits loitering under certain circumstances. The City Attorney's office has reviewed Chapter 5.04 and recommends revisions to assure the City's ordinance meets current constitutional standards. The standard for a loitering ordinance is the same as the standard for any legislation. While there are no specific requirements which make an individual ordinance constitutional, a handful of factors are considered: (1) the ordinance must provide notice by distinguishing between lawful and unlawful conduct, thereby enabling ordinary people to understand which conduct is unlawful and prohibited, otherwise the ordinance is overbroad; (2) the ordinance must require a criminal intent element if criminal punishments are attached; (3) the ordinance cannot be so vague as to allow undue police discretion in its enforcement; (4) The ordinance must not infringe upon a fundamental right (such as the right of free movement) without being narrowly tailored to a compelling state interest. COPY TO: ------------------------------------------------------------------------------------------------------------- Page 1 of2 ITEMNO.~ G:\CC -MTGS\2006 cc mtgs\2006-<jtrl \02-F eb\02-07 -06\as-loitering.doc The proposed ordinance provides specificity regarding what is lawful or unlawful with the list of permitted activities (see Section 5.04.030). Violation of Chapter 5.04 would be punishable as a civil infraction rather than a misdemeanor, as in the current ordinance. The proposed ordinance limits police discretion by prohibiting minors from being in public during curfew hours unless they are participating in a list of specifically permitted activities. Finally, the proposed ordinance would keep minors out of public during curfew hours by providing a list of specifically permitted activities which include all of the reasons minors could have for being out in public at night. RECOMMENDATION: Staff recommends the City Council conduct the public hearing, waive the reading and introduce the attached ordinance (Attachment 2) which amends the loitering provisions of the Dublin Municipal Code, and continue the matter to the February 21,2006, Council meeting. ;)6bJ-. .,,-.. Chapter 5.04 LOITERING Sections: 5.04.010 5.04.020 5.04.030 Prohibited. Exceptions. Violation-Penalty. 5.04.010 Prohibited. 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, play- grounds, 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. (10:00 p.m.) and daylight imme- diately following. (Ord. 12-83 ~ 1) ~ 5.04.020 Exceptions. The provisions of Section 5.04.010 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 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 in en route to or returning directly home from a meeting, entertainment, recre- ational activity, dance or on the way to or from employment. (Ord. 12-83 ~ 2) ,~ 5.04.030 Violation-Penalty. Each violation of this chapter shall con- stitute a separate offense; and, persons vio- lating this chapter shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine not to exceed five hundred dollars ($500) or by imprisonment ill the county jail for a period not exceeding 129 \Db* 5.04.010 thirty (30) ijays, or both such fine and im- prisonment. (Old. 12-83 ~ 3) lo. \ 2-1-Q.Q 1 ATI'ACHllIENT---L- ORDINANCE NO. - 2006 d- 6b4 AN ORDINANCE OF THE CITY OF DUBLIN AMENDING CHAPTER 5.04 OF THE DUBLIN MUNICIPAL CODE RELATING TO LOITERING WHEREAS, in enacting this Ordinance, the City seeks to protect the public health, safety, and welfare of its residents. NOW, THEREFORE, the City Council of the City of Dublin does ordain as follows: Section 1. The loitering provisions contained in Chapter 5.04, "Loitering," are amended to read as follows: Section 5.04.010 "Prohibited" "Purpose" It is I:Ifllawful for any minor Uflder the age ef eighteen (1 &) years ts leiter, idle, wanGer, strell sr play in or upon the public streets, higw,yays, reads, alleys, parks, playgr01:lflds, or other public grEl1:lflds, public places and public buildings, places ef aml:lsemoot and eating places, vacant lots or any I:IfIsapervised place between the hours often p.m. (10:00 p.m.) and daylight iIl'lfflediate1y follo'.ving. The City finds that when minors loiter in public places at night without adult supervision, they increase the risk of criminal activity, including drug and gang activity, thereby posing a threat to both themselves and other members of the community. This regulation is therefore necessary to protect the public health, safety, and welfare. Section 5.03.020 "Exeeptions" "Prohibited" The pro'iisians of Section 5.01.010 de net ll:j'lply when the mif!sr is accampanieG by his or her paroots, guardian Elf other adult person haviRg the care anG eustedy of the miRer, or whoo the mtRElr is upan an errand directed by his ar her parent or guardian ar otRer adult person ha-'Rflg the eare and cl:lstedy afthe minor, or whef! the mif!or if! eR raute to or returning Girectly home from. a m.eeting, entertaiflffief!t, recreational acti'Rty, dance or on the way tEl ar frem employment. It is unlawful for any minor under the age of eighteen years to be in any public place within the city during the curfew hours often p.m (10:00) to daylight, except as provided under Section 5.04.030. Section 5.04.030 "Violation Penalty" "Exceptions" Each violation of this chll:j'lter shalleonstirote a separate affoose; and, persans vialating this chll:j'lter shall be deemed guilty of a miseemeanElr, ll:Ild upon eOfivictiofl, GRall be pUflished by a fine not to ellceed fhe hundred dollars ($500) or by impriseflmefl1 in the county jail fer a period not ~lceeding thirty (30) days, er both Gl:lch fine and imprisonment. A minor under the age of eighteen years shall not violate Section 5.04.020 if, at the time the minor was stopped by a police officer, the minor was: A. Accompanied by the minor's parent, guardian or other adult person having the care and custody of the minor; B. On an errand at the direction ofthe minor's parent or guardian, without detour or stop; C. Driving or riding in a motor vehicle or riding on public transportation; D. Engaged in a lawful volunteer or paid employment activity, or going to or returning home from a lawful volunteer or paid employment activity, without detour or stop; E. Acting in response to an emergency; F. On the sidewalk abutting the minor's residence or abutting the residence which is ATI'ACHMENT~ 3 00 t..l immediately adjacent to the minor's residence; G. Attending or going to or returning home, without detour or stop, from a school, religious, cultural, sports, amusement, entertainment, or recreation activity; or any organized rally, demonstration, meeting or similar activity; H. Waiting at a bus stop for transportation; or I. Emancipated in accordance with the California Family Code or other applicable state law. Section 5.04.040 "Constitutional Rit!:hts" Nothing in this chapter shall be interpreted to preclude minors from being in a public place for the purpose of exercising the rights guaranteed by the First Amendment of the United States Constitution and by Article I, Section 2,3, and 4 of the California Constitution, including the free exercise of religion, freedom of speech, the right of assembly, and the right of petition. Section 5.04.050 "Violation - Penalty" A. Violation of any provision of this chapter may be enforced by civil action including an action for injunctive relief. In any civil enforcement action, administrative or judicial, the city shall be entitled to recover its attorneys' fees and costs from a person who is determined by a court of competent jurisdiction to have violated this chapter. B. Violation of any provision of this chapter shall constitute an infraction punishable by a fine not to exceed one hundred dollars ($100) for the first violation, a fine not to exceed two hundred dollars ($200) for the second violation within one year, and a fine not to exceed five hundred dollars ($500) for each additional violation within one year. There shall be a separate infraction for each day on which a violation occurs. Section 2. Conformint!: Amendments. Chapter 5.04 of the Dublin Municipal Code shall be re-numbered and/or re-lettered as necessary to accommodate and/or reflect the foregoing amendments. Section 3. Severabilitv. The provisions of this Ordinance are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any ofthe remaining provisions, clauses, sentences, sections, words or parts thereof of the Ordinance or their applicability to other persons or circumstances. Section 4. Effective Date and Postint!: of Ordinance. This Ordinance shall take effect and be in force thirty (30) days from and after the date of its final adoption. The City Clerk ofthe City of Dublin shall cause this Ordinance to be posted in at least three (3) public places in the City of Dublin in accordance with Section 39633 of the Government Code ofCalifomia. PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF DUBLIN on this 7th day of February 2006, by the following votes: AYES: NOES: 725681-1 2 ABSENT: ABSTAIN: ATTEST: Mayor City Clerk 725681-1 ~on'-t 3