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