LEGAL ALTERNATIVES

1. LEGAL ALTERNATIVES A Review of Existing and Prospective Ordinances By Elena Gerli and Charisse Smith

2. Preliminary Comments Carrot/Stick Approach Carrot (Programs and Services) Stick (Enforcement of Quality of Life Ordinances) Types of Constitutional Challenge Facial As Applied Discuss necessity defense with regard to �as applied� challenge. All of these ideas are just suggestions and we need the task force to give us further direction on which ones to research in greater detailDiscuss necessity defense with regard to �as applied� challenge. All of these ideas are just suggestions and we need the task force to give us further direction on which ones to research in greater detail

3. Existing Ordinances Ban on smoking in the parks [Title 8, Chapter 5] Drinking in Public [Title 11, Section 11-3] Human Excretion [Title 11, Section 11-4] Aggressive Panhandling [Title 11,Section 11-178] Anti-Camping [Title 12, Section 12-7(c)] Storage of property [Title 12, Section 12-7(d)] Bathing in park fountains [Title 12, Section 12-20(a)(15)] Park Closure [Title 12, Section 12-23] No parking zones [Title 12, Section 12-26]

4. Ban on Smoking State Law Smoking is currently prohibited within 20 feet of the entrance or operable window of a public building. Gov. Code � 7597(a) Cities are free to adopt more restrictive ordinances than the standards required by State law. Gov. Code � 7597(b)

5. Ban on Smoking, cont. Costa Mesa Ordinance Currently, smoking is prohibited in all Public Facilities [Title 8, Chapter V] Public facility means any building, structure or room within a building or vehicle enclosed by a roof and four (4) walls with appropriate openings for ingress and egress, and owned, leased or operated by the City of Costa Mesa, a California municipal corporation, but does not include facilities used as multifamily residential buildings

6. Ban on Smoking, cont. Possible areas for expansion: All public parks Some public parks Within a certain distance from Recreation facilities Within a certain distance from libraries Other public areas of concern?

7. Ban on Smoking, cont. Some Examples of City Expansion San Diego � All city beaches and parks Calabasas � All indoor and outdoor public places except for a few scattered exceptions Loma Linda � All sidewalks, streets, common areas in shopping centers, bus stops, parks, restaurant patios, theaters, City Hall, and 80% of motel rooms/apartments Escondido � All parks, trails, and parking lots for these areas. Also increased distance to 80 feet

8. Drinking in Public Title 11, Section 11-3: No person shall drink or consume wine, beer, whiskey, brandy, or any alcoholic liquors or beverages on public streets, including public alleys, sidewalks and parkways, nor in public restrooms, parking lots, vacant lots, parked motor vehicles, or public parks, except in any area of a public park where drinking has been expressly approved by the city council or its designee and is so posted. Possible revisions Check into possible open container ordinance which may be preempted by State law. Extend to grounds of any public building � Downey Check into prohibiting possession of alcoholic beverages

9. Human Excretion Title 11, Section 11-4 It shall be unlawful for any person to urinate, defecate or otherwise discard or dispose of human wastes or excretion on private property in an area exposed to the public view, or on any public street, sidewalk, alley, park, parkway, parking lot or other public place, except in a toilet receptacle provided for such purpose within the structure of a restroom, bathroom or other enclosure. Exceptions made for infirmities, not including ingestion of alcohol or drugs.

10. Aggressive Panhandling Title 11, Chapter XI, Section 11-178 No person shall ask, beg, or solicit alms in an aggressive manner in any place open to the general public, whether publicly or privately owned, including but not limited to any sidewalks, streets, alleys, driveways, parking lots, parks, plazas, buildings, doorways and entrances to buildings, gasoline service stations, fast food restaurant drive-through lanes, and the grounds around buildings open to the general public. �Aggressive Manner� and �Ask, Beg, or Solicit alms� are defined at � 11-177 Possible revisions: Could consider adding off limit zones (time, place manner restriction as in St. Petersburg)

11. Anti-Camping Ordinance Title 12, Chapter I, Section 12-7 provides: It shall be unlawful for any person to camp, occupy camp facilities or use camp paraphernalia in the following areas, except as otherwise designated by the parks and recreation commission, and as permitted by the administrative services director: (1) Any street; (2) Any public parking lot or public area, improved or unimproved; (3) Any park.

12. Anti-Camping, cont. Current Definition of Camp Facilities: Camp facilities include, but are not limited to, tents, huts or temporary shelters. Potential Revision to add RV�s and automobiles Add, �when established, maintained or operated to camp� to end of the sentence

13. Anti-Camping, cont. Current Definition of Camp Paraphernalia: Camp paraphernalia includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks or non-city designated cooking facilities and similar equipment.

14. Anti-Camping, cont. Potential revisions: Expand Definition of Camp Paraphernalia For Example: �Camp paraphernalia� include, but are not limited to, tarpaulins, cots, beds, sleeping bags, hammocks or non-city-designated cooking facilities, similar equipment, or personal possessions that would facilitate one�s use of a park, public property, or any portion of the public right-of-way as a temporary residence. Ontario �Camp paraphernalia� means and includes, but is not limited to, tarpaulins, cots, beds, sleeping bags, hammocks, or any other item that may be used for sleeping purposes, or non-city designated cooking facilities and similar equipment. Merced

15. Anti-Camping, cont. �Camp paraphernalia� means and includes, but is not limited to, bedrolls, blankets, tarpaulins, cots, beds, sleeping bags, tents, hammocks, items used for cooking food or similar equipment. Camp paraphernalia also includes other personal effects, when used or stored with camp paraphernalia as described in this chapter. Willits 

16. Storage of Personal Property Section 12-7(d) Very Similar to Anti-Camping and in same Chapter Storage of personal property in public places. It shall be unlawful for any person to store personal property, including camp facilities and camp paraphernalia, in the following areas, except as otherwise approved in writing by the administrative services director: (1) Any street; (2) Any public parking lot or public area, improved or unimproved; (3) Any park.

17. Storage, cont. Unattended vs. Abandoned Property If property is unattended, State law requires that it be stored for 90 days before it is disposed. Cal. Civil Code � 2080.2 However, if property is �intentionally abandoned,� the City has no responsibility to store the property and may otherwise dispose of it in any manner. Cal. Civil Code � 2080.7 Some cities have adopted ordinances regarding disposal of abandoned property because of the health hazards associated with storage of unattended property.

18. Storage, cont. When is personal property considered �intentionally abandoned?� What is a reasonable timeframe? 3 hours 16 hours 24 hours 3 days 5 days Notice and Opportunity to remove property?

19. Bathing in Park Fountains Section 12-20(a) When used in this title, the words "disorderly conduct" shall include any of the following conduct in any park: (15) Swim, bathe or wade in or pollute the waters of any fountain, lake, marsh or fishpond in any park or recreation center, and building or structure thereon. Penalty for violation is ejection from the park. Difficulty of enforcement Potential revisions could include stronger penalty provisions, increased signage

20. Park Closure Sec. 12-23. - Presence in parks after dark. No person shall enter upon or engage in any activity in any park and building or structure thereon after dark, except in those recreation facilities and park areas designated by signage or subject to a permit issued by the administrative services director pursuant to this title.

21. No Parking Zones Sec. 12-26. - Stopping, parking vehicles between dark and 5:00 a.m. It is unlawful to stop or park a vehicle at any place within the boundaries of any park, square, avenue, grounds or recreation center during the hours between dark and 5:00 a.m., except when attending some special event authorized to be conducted within the park during said hours by the administrative services director Notice and signage within the areas City wants to prohibit parking and possibly increased towing We would need to look at towing ordinance for towing vehicles at night.We would need to look at towing ordinance for towing vehicles at night.

22. Prospective Ordinances Obstructing the Public Rights of Way Time, Place, Manner Restriction on Large Group Feedings (Orlando Ordinance recently upheld by 11th Circuit) Prohibition on Glass Containers

23. Obstructing Public Rights of Way This type of behavior, sleeping on the sidewalks, can be a health and safety hazard to the general public and has a negative effect on the economic vitality of the community.This type of behavior, sleeping on the sidewalks, can be a health and safety hazard to the general public and has a negative effect on the economic vitality of the community.

24. Obstructing Public Rights of Way Seattle Style Ordinance Roulette v. Seattle, 97 F.3d 300 (9th Cir. 1996) The city has a substantial government interest in ensuring the safe passage of pedestrians and protecting the economic vitality of its commercial districts

25. Rights of way, cont. Key Elements of Seattle Style Ordinance Prohibits sitting or lying on sidewalks and rights of way Usually limited to specific time (7 a.m. to 9 p.m.) Limited to specific areas of the city, not the entire city Provides for certain exceptions Provides for warning before citation is issued Sample of California cities Torrance, Corona, Ontario, Santa Barbara, Rialto

26. Large Group Feedings First Vagabonds Church v. City of Orlando April 12, 2011 -Ordinance was enacted to spread the burden that feedings of large groups have on parks and their surrounding neighborhoods. -11th Circuit held the Ordinance was valid on its face and as applied with regard to all challenges brought by First Vagabonds and Orlando Food Not Bombs

27. Large Group Feedings, cont. Background 42 parks in a two-square mile radius of City Hall 108 parks in the entire city First Vagabonds and Food Not Bombs began feedings on a regular basis in a couple of parks which events attracted between 50 and 120 people Residents of surrounding neighborhoods complained about the conduct of people who disbursed into the neighborhoods after the feedings City conducted public hearings and adopted Ordinance

28. Large Group Feedings The Ordinance Requires a permit for large group feedings in the downtown area (2 square mile radius of City Hall) Number of permits any one group can obtain is 2 per year for any one park �Large group feeding� is defined as an event intended to attract, attracting, or likely to attract twenty-five (25) or more people[] . . . for the delivery or service of food

29. Prohibition of Glass Containers Consider recommending an ordinance to prohibit use of glass containers: For example: Could add to Section 12-20(a) - �Use or possess glass containers, bottles or other breakable glass products within any City park.�

30. QUESTIONS?