1202 2nd Response Flashcards
1202.1 BACKGROUND
In 1993, the Berkeley City Council stated,
“Due to inadequate supervision, some large gatherings of people, such as parties, 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 following:
excessive noise, excessive traffic, obstruction of public streets or crowds who have spilled over into public streets, public drunkenness, the service of alcohol to minors, fights, disturbances of the peace, and litter.
The City of Berkeley is required to make multiple responses to such unruly gatherings in order to restore and maintain the peace and protect public safety. Such gatherings are a burden on scarce City resources and can result in police responses to regular and emergency calls being delayed and police protection to the rest of the City being reduced.
In order to discourage the occurrence of repeated loud and unruly gatherings, the persons responsible for the public nuisance created by these gatherings should be fined.”
Policy
1202.2 THE ORDINANCE
Berkeley Municipal Code §13.48.020 states it shall be unlawful and a public nuisance to conduct a gathering, which incorporates the following criteria:
- Ten or more persons are involved;
- The event is occurring on private property; and,
- The gathering is occurring in a manner which constitutes a substantial disturbance of the quiet enjoyment of private or public property in a significant segment of a neighborhood, as a result of unlawful conduct.
Examples of such unlawful conduct may include the following:
excessive noise or traffic, obstruction of public streets by crowds or vehicles, public intoxication, the service of alcohol to minors, public urination, fights, disturbances of the peace and littering.
A gathering constituting a public nuisance may be abated by all reasonable means including, but not limited to, an order requiring the gathering be disbanded, and citation and/or arrest of any law violators under any applicable local laws and state statutes.
The Ordinance explicitly prohibits targeted enforcement against student housing.However, nothing in the Ordinance precludes the City from setting priorities in the use of its resources by employing the Ordinance against events that are the most disruptive, against properties at which disruptive events are held most often, or on the basis of other similar legitimate factors.
THE ORDINANCE
1202.3 EXHIBIT A
When the police intervene at a gathering which constitutes a nuisance under the Ordinance, a “Notice” must be prominently posted at the premises at which the nuisance occurred.The Notice, referred to in the Ordinance as an “Exhibit A,” states that the intervention by the police has been necessitated as a result of a public nuisance caused by an event at the premises.The “Exhibit A” also indicates:
- The date and time of the police intervention;
- Any subsequent police intervention at the same premises within a one hundred twenty-day (120) period, including an intervention on the same day as the posting of the “Exhibit A,” shall result in civil penalties;and,
- Liability may fall upon any guests causing the public nuisance, all sponsors of the gathering, all residents of the premises, all persons in control of the premises, and all owners of the premises that reside on or adjacent to the premises or are present at the premises when the notice is posted.
The residents or persons in control of the property, if present, must be consulted regarding a location where the Notice can be conspicuously and securely posted. When consulted, those persons, as well as sponsors of the nuisance event, if involved in the decision, become responsible for ensuring that the “Exhibit A” is neither removed nor defaced.If either occurs, those responsible for the security of the notice become liable for a civil penalty of $100.00, in addition to any other penalties which may be due under the Ordinance.
Exhibit A posting
1202.4 EXHIBIT B
Should the police intervene at a premises with an active “Exhibit A”, a new notice shall be posted and a fine imposed against the property by means of an administrative citation.The new notice, referred to in the Ordinance as an “Exhibit B,” states that the intervention by the police has been necessitated as a result of a public nuisance caused by an event at the premises.The “Exhibit B” also indicates:
- The date and time of the police intervention;
- Whether the nuisance is the second, third, fourth, etc. at the premises within the last 120 days;
- The fine amount associated with the violation (second - $750, third - $1,500, fourth and subsequent violations - $2,500);
- The 120 day period is extended another 120 days from the date of the “Exhibit B” posting;
- Liability may fall upon any guests causing the public nuisance, all sponsors of the gathering, all residents of the premises, all persons in control of the premises, and all owners of the premises that reside on or adjacent to the premises or are present at the premises when the nuisance occurs.
For every subsequent violation of the Ordinance, a new “Exhibit B” form shall be completed and posted. The residents or persons in control of the property, if present, must be consulted regarding a location where the Notice can be conspicuously and securely posted.When consulted, those persons, as well as sponsors of the nuisance event, if involved in the decision, become responsible for ensuring that the “Exhibit B” is neither removed nor defaced.If either occurs, those responsible for the security of the notice become liable for a civil penalty of $100.00, in addition to any other penalties which may be due under the Ordinance.
Exhibit B posting
1202.5 PROCEDURE - OFFICER
An officer responding to a “loud party”, “unruly gathering”, etc. type call for service should:
A) Contact the resident, person in control of the property, or event organizer, and determine if Ordinance enforcement is appropriate.
B) Complete an “Exhibit A” or “Exhibit B” form.
C) Confer with the resident, person in control of the property, or event organizer and identify a conspicuous and secure location to post the “Exhibit” form. Should the resident, person in control of the property, or event organizer decline to confer, the officer should choose an appropriate posting location and inform the parties present that removal or defacement of the notice within the 120 day period may result in a $100.00 fine.
D) Post the duplicate copy of the Exhibit form at the premises and retain the original for the report.
E) Complete a Case Report and document the following information:
- Known complainant’s identification and report information;
- Identification of parties responsible for the property hosting the gathering;
- The overall condition and/or general environment of the premises;
- The number of people involved at the gathering;
- Whether or not alcohol was a factor;
- Any traffic conditions affected by the gathering;
- Any other information that may be relevant to the Ordinance violation; and,
- The exact location the Exhibit form was posted.
F) Submit the report in AEGIS, route the original Exhibit form to Records Management and place a copy in the CSB mailbox to ensure proper administrative follow-up.
Officer procedure of 2nd response
1202.6 REPEAT VIOLATIONS
Officers should be aware of what properties in their assigned area have been posted for Ordinance violation(s) and should monitor them for repeat violations within the prescribed term.If, within 120 days of the initial posting, an officer investigates another unruly gathering as described in the Ordinance, the officer should replace the Exhibit A posting with an Exhibit B, document their observations and actions on a new Case Report and forward a copy of the report CSB for administrative follow-up.
It is important to know that with each subsequent occurrence of a nuisance at a previously posted property, the 120 day “clock” resets.For example, if an address was initially posted on January 1st, and there was a reported violation on March 1st, the 120 day period restarts and would conclude, absent a subsequent violation, on June 28th.As such, knowing the date of the most recent documented Ordinance violation at a posted property will allow an officer to determine if the 120 day term is still in effect or has expired.
REPEAT VIOLATIONS
1202.7 CSB AREA COORDINATOR FOLLOW-UP PROCEDURES
A) An Area coordinator receiving a follow up request for a Second Response violation should:
- Ensure a Premise Alert has been entered into CAD for the subject property:
* Minimally, the CAD entry should include:
1) the date/time the Exhibit form was posted;
2) the name and phone number of the liable person(s) contacted;
3) the location where the notice form was posted.
4) Additionally, if regarding an Exhibit B, the alert should include the violation number (second, third, fourth, etc.) and
5) the fine amount to be imposed against the property.
Having this information available in CAD will help patrol officers enforce the Ordinance should they respond to subsequent loud, unruly parties during the 120 day period.Additionally, requesting the Communication Center staff to revise the CAD event description to “2nd Response” will help with event tracking and future administrative research efforts.
B) Mail a notice of the police intervention to the property owner(s):BMC 13.48.030(B) requires a notice of police intervention be mailed to the property owner(s) on file in the City’s property tax assessment records.The notice is a letter from the responsible Area Coordinator along with a copy of the Exhibitform, which advises the property owner(s) that any subsequent event within 120 days on the same premises necessitating police intervention shall result in liability of the property owner for all penalties associated with such intervention as more particularly set forth in the Ordinance.
C) Set a three week follow-up inspection: The Area Coordinator should set a three week follow-up in order to conduct an initial inspection visit of the site to examine the Exhibit A posting.In the event the form has been removed, a new Exhibit A form shall be posted.Observed violations of the Ordinance and related enforcement actions must be documented in a supplemental report, which will support a demand for the prescribed civil fine.
D) Conduct additional inspections to ensure Ordinance compliance and document any subsequent violations on a Case Report.
E) Mail an Exhibit B notice letter for each subsequent violation: For each instance wherein an Ordinance violation is identified, the Area Coordinator is responsible for mailing an Exhibit B notice letter to the person(s) liable for the civil penalty.
F) Provide the City of Berkeley Finance Department with copies of all reports and letters associated with any Ordinance violation to facilitate billing of the responsible parties.
CSB AREA COORDINATOR FOLLOW-UP PROCEDURES
1202.8 CIVIL PENALTIES AND COLLECTION PROCEDURES
Civil penalties may be assessed against all persons liable for the City’s intervention to abate a gathering deemed a public nuisance.The schedule of penalties is as follows:
- For a second violation of the Ordinance during the 120-day period, the penalty shall be the sum of $750.
- For a third violation of the Ordinance response during the 120-day period, the penalty shall be the sum of $1,500.
- For any subsequent violation of the Ordinance during the 120-day period, the penalty shall be the sum of $2,500 for each intervention by police.
Billed by the Exhibit B form, all persons liable for applicable civil penalties will be directed to remit payment within thirty days of the letter’s postmark to the City of Berkeley Finance Department, who will be responsible for collections.If payment is not received within the stated term, the bill will be deemed delinquent, and all persons liable for the penalties will be subject to accrued interest at the maximum legal rate, as well as an additional penalty of $100.
CIVIL PENALTIES AND COLLECTION PROCEDURES
1202.9 SUMMARY
A tool wielded to quell public nuisances, the “2nd Response” Ordinance can improve, if not restore, the quality of life in neighborhoods adversely affected by loud and unruly gatherings
This result cannot occur, however, unless the Ordinance is used effectively.Knowing the elements of the statute and the role the police officer plays in its enforcement will help ensure success.
Make and document detailed observations in your report, post the Exhibit A form appropriately, and route the report package properly so the administrative effort that follows may be readily accomplished.
Summary
