HomeMy WebLinkAboutAgenda Statement 1987/05/12 Item 9a,b COUNCIL AGENDA STATEMENT
Item 9a' b
Meeting Date 5/12/87
ITEM TITLE: (a) Ordinance 0 7 Adding Chapter 9.09 to the Chula Vista
Municipal Code relating to Loitering
(b) Ordinance 2 .5'Amending Section 9.15.010 of the Chula
Vista Municipal Code relating to Open Containers
SUBMITTED BY: Assistant City Attorney SECOND READING AND ADOPTION
(4/5ths Vote: Yes No X )
This is in response to a request from Councilman Nader for enactment of
ordinances regulating loitering and open containers in the City, in connection
with law enforcement problems at or near the 7-11 store on "I" Street. A more
detailed report by the Director of Public Safety more broadly responding to
the law enforcement problems will follow at a later date. Depending on the
specific language utilized, a city loitering ordinance would not be pre-empted
by state law but specifically authorized by Penal Code Section 647c. Public
consumption of alcoholic beverages, including possession of open containers,
not pre-empted by state law and is the proper subject for a municipal
linance.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
RECOMMENDATION: That Council place both ordinances on first reading if they
meet with Council's approval.
DISCUSSION:
The Director of Public Safety and City Manager are reviewing responses to law
enforcement problems at or near the 7-11 store on "I" Street, the entryway to
the City Library, and the City's Bayside Park as well as the more general
topic of consumption of alcoholic beverages in public places. The Director of
Public Safety has reviewed both proposed ordinances and has not had sufficient
time to determine if the proposed loitering ordinance would significantly
improve successful law enforcement efforts beyond that available through the
utilization of Penal Code Section 647c. He believes the current version of
Municipal Code Section 9.15.010 relating to the possession of open containers
in the vicinity of off-sale licensed premises is too narrow and would be
significantly improved by the proposed amendment, and will probably ultimately
be recommending that the ordinance formerly applicable to the "J" Street
Marina again be adopted by the Council.
Item No. 9a, b
Meeting Date: 5/12/87
Page 2
gal Code Section 647c provides as follows:
"Every person who wilfully and maliciously
obstructs the free movement of any person on any
street, sidewalk, or other public place or on or
in any place open to the public is guilty of a
misdemeanor.
Nothing in this section affects the power of a
county or city to regulate conduct upon a street,
sidewalk, or other public place or in a public
place open to the public."
The existence of Penal Code 647c means two things:
1. It is already a crime in the city to wilfully and maliciously obstruct
free movement of persons on the streets, sidewalks and other public
places or places open to the public; and
2. There is no state pre-emption prohibiting a city ordinance regulating
conduct upon a street, sidewalk or other public place or place open to
the public.
Case law interpretation of city ordinances enacted under the proviso allowing
enactment of city ordinances also makes clear that any such ordinance must
,..,clude a provision that the action prohibited be both wilful and malicious in
order to withstand a constitutional attack that the ordinance is void for
vagueness. Jennings v. City and County of San Francisco Superior Court,
supra, 104 C.A.3d 51 at 55, 163 Cal.Rptr. 391 at 394. Penal Code Section 7
defines "maliciously" : "The words 'malice' and 'maliciously' import a wish to
vex, annoy, or injure another person, or an intent to do a wrongful act,
established either by proof or presumption of law. . ." .
There are numerous state statutes relating to trespass, disorderly conduct or
disturbance of the peace which, if duplicated by a City ordinance otherwise
purporting to regulate conduct upon a street, sidewalk or other public place
or a place open to the public, would be void because pre-empted by state law.
Such sections include, but are not limited to, the following:
Penal Code Sections 365, 415, 418, 419, 420, 553-555.3, 558-558.1, 587-587b,
592, 593b, 602(a)-602(n) , 602.5, 647(g)-647(i), 647c; Fish and Game Code
Sections 2016, 2018; Health and Safety Code Section 8101; Military and
Veterans Code Sections 398, 1650, 1651; Water Code Section 1052; and Civil
Code Section 51.
Item No. 9a, b
Meeting Date: 5/12/87
Page 3
If the Council believes enforcement of a new infraction violation for
loitering will assist in resolving in law enforcement problems at or near the
7-11 store on "I" Street, it should be placed on first reading.
Open Containers
The second proposed ordinance amends existing Municipal Code Section 9.15.010
of the Chula Vista Municipal Code, which section already prohibits open
containers on the premises, in the adjacent parking lot, and on any public
sidewalk immediately adjacent to off-sale licensed premises. The proposed
amendment adds language to prohibit the actual consumption of alcoholic
beverages and possession of open containers on any public street, sidewalk,
parkway, public parking lot or semi-public parking lot, as the latter is
defined in the ordinance. The Director of Public Safety has indicated that
this broader language would be a significant improvement over the narrow
current prohibition.
Article XX, Section 22 of the California Constitution gives the state the
exclusive right and power to "license and regulate the manufacture, sale,
purchase, possession and transportation of alcoholic beverages within the
state. . ." . The Attorney General has concluded that the constitutional
provision would forbid a local ordinance making the possession of alcoholic
beverages in a county hospital illegal, but would not forbid an ordinance
forbiding the unauthorized consumption of alcoholic beverages in such a public
ility (38 Ops. Cal. Atty. Gen. 64 [1961]) . In People v. Butler (1967) 252
.,.A.2d. Sup. 1053, 59 Cal.Rptr. 924, the Appellate Department of the Superior
Court for Fresno County concluded that a Fresno city ordinance prohibiting the
drinking of any beer, wine or other intoxicating beverage on any street,
sidewalk, alley, highway or playground was not pre-empted by state law and was
valid. Additionally, there is express statutory authority in Business and
Professions Code Section 25620 for the enactment of a city ordinance which
prohibits consumption of alcoholic beverages in city parks or other adjacent
city owned public place, violation of which would be, by statute, an
infraction. The statutory prohibition is expressed in terms of open
containers as being a violation of an ordinance which prohibits consumption of
alcoholic beverages. This would appear to be a legislative expression of the
concept that possession of an open container constitutes part of
"consumption" , 'as opposed to "possession" . City regulation of the latter
would be pre-empted by state law.
If the proposed amendments to Municipal Code Section 9.15.010 meet with the
Council's approval, it should be placed on first reading.
FISCAL IMPACT: Unknown.
DRR:lgk
2839a
/ 0661-4064i
•
by th3 City Council of by the City Council of
CH1 Vista, Culfornia Chula Vista, California
Dated At 4 : 7 Dated 4
COUNCIL AGENDA STATEMENT
Item9a, b
Meeting Date 5/12/87
ITEM TITLE: (a) Ordinance ;'ap 7 Adding Chapter 9.09 to the Chula Vista
Municipal Code relating to Loitering
(b) Ordinance 2 4J Amending Section 9.15.010 of the Chula
Vista Municipal Code relating to Open Containers
SUBMITTED BY: Assistant City Attorney SECOND fUEADING AND ADOPTION
(4/5ths Vote: Yes No X )
This is in response to a request from Councilman Nader for enactment of
ordinances regulating loitering and open containers in the City, in connection
with law enforcement problems at or near the 7-11 store on "I" Street. A more
detailed report by the Director of Public Safety more broadly responding to
the law enforcement problems will follow at a later date. Depending on the
specific language utilized, a city loitering ordinance would not be pre-empted
by state law but specifically authorized by Penal Code Section 647c. Public
consumption of alcoholic beverages, including possession of open containers,
is not pre-empted by state law and is the proper subject for a municipal
finance.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
RECOMMENDATION: That Council place both ordinances on first reading if they
meet with Council's approval.
DISCUSSION:
The Director of Public Safety and City Manager are reviewing responses to law
enforcement problems at or near the 7-11 store on "I" Street, the entryway to
the City Library, and the City's Bayside Park as well as the more general
topic of consumption of alcoholic beverages in public places. The Director of
Public Safety has reviewed both proposed ordinances and has not had sufficient
time to determine if the proposed loitering ordinance would significantly
improve successful law enforcement efforts beyond that available through the
utilization of Penal Code Section 647c. He believes the current version of
Municipal Code Section 9.15.010 relating to the possession of open containers
in the vicinity of off-sale licensed premises is too narrow and would be
significantly improved by the proposed amendment, and will probably ultimately
be recommending that the ordinance formerly applicable to the "J" Street
Marina again be adopted by the Council.
Item No. 9a, b
Meeting Date: 5/12/87
Page 2
nal Code Section 647c provides as follows:
"Every person who wilfully and maliciously
obstructs the free movement of any person on any
street, sidewalk, or other public place or on or
in any place open to the public is guilty of a
misdemeanor.
Nothing in this section affects the power of a
county or city to regulate conduct upon a street,
sidewalk, or other public place or in a public
place open to the public."
The existence of Penal Code 647c means two things:
1. It is already a crime in the city to wilfully and maliciously obstruct
free movement of persons on the streets, sidewalks and other public
places or places open to the public; and
2. There is no state pre-emption prohibiting a city ordinance regulating
conduct upon a street, sidewalk or other public place or place open to
the public.
Case law interpretation of city ordinances enacted under the proviso allowing
e enactment of city ordinances also makes clear that any such ordinance must
_.iclude a provision that the action prohibited be both wilful and malicious in
order to withstand a constitutional attack that the ordinance is void for
vagueness. Jennings v. City and County of San Francisco Superior Court,
supra, 104 C.A.3d 51 at 55, 163 Cal.Rptr. 391 at 394. Penal Code Section 7
defines "maliciously" : "The words 'malice' and 'maliciously' import a wish to
vex, annoy, or injure another person, or an intent to do a wrongful act,
established either by proof or presumption of law. . ." .
There are numerous state statutes relating to trespass, disorderly conduct or
disturbance of the peace which, if duplicated by a City ordinance otherwise
purporting to regulate conduct upon a street, sidewalk or other public place
or a place open to the public, would be void because pre-empted by state law.
Such sections include, but are not limited to, the following:
Penal Code Sections 365, 415, 418, 419, 420, 553-555.3, 558-558.1, 587-587b,
592, 593b, 602(a)-602(n) , 602.5, 647(g)-647(i), 647c; Fish and Game Code
Sections 2016, 2018; Health and Safety Code Section 8101; Military and
Veterans Code Sections 398, 1650, 1651; Water Code Section 1052; and Civil
Code Section 51.
Item No. 9a, b
Meeting Date: 5/12/87
Page 3
If the Council believes enforcement of a new infraction violation for
loitering will assist in resolving in law enforcement problems at or near the
7-11 store on "I" Street, it should be placed on first reading.
Open Containers
The second proposed ordinance amends existing Municipal Code Section 9.15.010
of the Chula Vista Municipal Code, which section already prohibits open
containers on the premises, in the adjacent parking lot, and on any public
sidewalk immediately adjacent to off-sale licensed premises. The proposed
amendment adds language to prohibit the actual consumption of alcoholic
beverages and possession of open containers on any public street, sidewalk,
parkway, public parking lot or semi-public parking lot, as the latter is
defined in the ordinance. The Director of Public Safety has indicated that
. this broader language would be a significant improvement over the narrow
current prohibition.
Article XX, Section 22 of the California Constitution gives the state the
exclusive right and power to "license and regulate the manufacture, sale,
purchase, possession and transportation of alcoholic beverages within the
state. . ." . The Attorney General has concluded that the constitutional
provision would forbid a local ordinance making the possession of alcoholic
beverages in a county hospital illegal, but would not forbid an ordinance
forbiding the unauthorized consumption of alcoholic beverages in such a public
�ility (38 Ops. Cal. Atty. Gen. 64 [1961]) . In People v. Butler (1967) 252
_ .A.2d. Sup. 1053, 59 Cal.Rptr. 924, the Appellate Department of the Superior
Court for Fresno County concluded that a Fresno city ordinance prohibiting the
drinking of any beer, wine or other intoxicating beverage on any street,
sidewalk, alley, highway or playground was not pre-empted by state law and was
valid. Additionally, there is express statutory authority in Business and
Professions Code Section 25620 for the enactment of a city ordinance which
prohibits consumption of alcoholic beverages in city parks or other adjacent
city owned public place, violation of which would be, by statute, an
infraction. The statutory prohibition is expressed in terms of open
containers as being a violation of an ordinance which prohibits consumption of
alcoholic beverages. This would appear to be a legislative expression of the
concept that possession of an open container constitutes part of
"consumption" , 'as opposed to "possession" . City regulation of the latter
would be pre-empted by state law.
If the proposed amendments to Municipal Code Section 9.15.010 meet with the
Council's approval, it should be placed on first reading.
FISCAL IMPACT: Unknown.
DRR:lgk
2839a
fl_tot_01(4ki
by the City Council of
by the City Council of Chula Vista, California
Ch.,11 Vista, California
Dated
4 : 7 7 ; Dated .1;447