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Home My WebLink AboutORD NO 3792ORDINANCE NO. 8 7 9 2 AN ORDINANCE ADDING CHAPTER 9.35 TO THE BAKERSFIELD MUNICIPAL CODE RELATING TO TRESPASSING ON PRIVATE PROPERTY. WHEREAS, the City of Bakersfield finds it necessary to establish a procedure for dealing with trespassing on private property; and WHEREAS, the Bakersfield Police Department regularly receives numerous calls for service regarding persons loitering or trespassing on private property, including businesses; and WHEREAS, citizens often fear becoming victims of robbery or assault if they shop at these businesses and property owners often fear retaliation and do not wish to confront these persons in order to make a citizen's arrest; and WHEREAS, because of these fears, citizens will not patronize the businesses. Furthermore, loitering is frequently accompanied by other illegal activities, such as illegal drug sales, gang activity, gambling, panhandling, etc.; and WHEREAS, while State law allows an arrest for trespassing on private property which is not open to the public, state law requires that the property owner ask the trespassing individual to leave the premises or make a citizen's arrest and the owner may authorize a peace officer to ask persons to leave or subsequently arrest the subjects if they refuse to do so; and WHEREAS, the problem posed by the state law, however, is the property owner must make this request to a peace officer every time the need arises; and WHEREAS, allows for cities to legislate trespassing on private property which is open to the public (e.g., business parking lots); and WHEREAS, using the state law poses other practical difficulties in that many times the property owner is unavailable to make these requests, especially in instances where the offense occurs on vacant properties or vacant lots. Property owners often fear retaliation and do not wish to confront these persons in order to make a citizen's arrest; and WHEREAS, as authorized by state law and the City Charter, this ordinance will allow officers of the Bakersfield Police Department to disperse trespassing individuals from private property on behalf of private property owners and the Bakersfield Police -- Page 1 of 4 Pages ORIGINAL ¸-% Department will then be enabled to proactively address the problems created by loitering/trespassing individuals; and WHEREAS, adoption of this ordinance will improve the quality of life for both the citizens residing in these areas and the businesses operating in the areas affected by the trespassing/loitering problems. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Chapter 9.35 is hereby added to the Bakersfield Municipal Code to read as follows: 9.35.010 Trespass on Private Property. (A) No person shall enter or be present upon any private property or portion of pdvate property not open to the general public without the consent of the owner, the owner's agent, or the person in lawful possession, where signs forbidding entry are displayed as provided in Subsection (E). (B) No person shall enter upon any private property or portion of private property, not open to the general public, who within the immediately preceding six months was advised as follows: to leave and not return, and that if he or she returns to the property within six months of the advisement he or she will be subject to arrest. This advisement must be made by the owner, the owner's agent, the person in lawful possession or a peace officer at the request of the owners, owner's agent or person in lawful possession. The advisement shall be documented in wdting by the individual making it and shall include the name of the person advised, the date, approximate time, address and type of property involved. This subsection is not violated if a person so advised enters the property within the designated six month pedod, if he or she has been expressly authorized to do so by the owner, the owner's agent or a person in lawful possession. (C) No person shall enter or be present upon any private property or portion of private property open to the general public who within the immediately preceding 24 hours was advised to leave and not return, and that if he or she returns to the property within 24 hours of the advisement, he or she will be subject to arrest. This advisement must be made by the owner, the owner's agent, the person in lawful possession or a peace officer at the request of the owner, owner's agent or the person in lawful possession. A request to leave may be made only if it is rationally related to the services performed or the facilities provided. (D) The term "private property" shall mean any real property, including but not limited to, buildings, structures, yards, open spaces, walkways, courtyards, driveways, carports, parking areas and vacant lots, except land which is used exclusively for agricultural -- Page 2 of 4 Pages -- ORIGINAL purposes, owned by any person or legal entity other than property owned or lawfully possessed by any governmental entity or agency. (E) For purposes of Subsection (a), one sign must be printed or posted in a conspicuous manner at every walkway and driveway entedng any enclosed property or portion thereof and at a minimum of every fifty feet along the boundary of any unenclosed lot. This requirement is met if at least one sign is conspicuously printed or posted on the outside of every structure on such property, so as to be readable from each walkway and driveway entering such property. The sign shall state as follows: THIS PROPERTY CLOSED TO THE PUBLIC No Entry Without Permission BMC. Section 9.35.010 The language "THIS PROPERTY CLOSED TO THE PUBLIC No Entry Without Permission" on said sign shall be at least two inches high. (F) When a peace officeCs assistance in dealing with a trespass is requested, the owner, owner's agent, or the person in lawful possession shall make a separate request to the peace officer on each occasion. However, a single request for a peace officer's assistance may be made to cover a limited period of time not to exceed twelve months when such request is made in writing and provides the specific dates of the authorization period. (G) This section shall not apply in any of the following instances: (1) when its application results in, or is coupled with, any act prohibited by the Unruh Civil Rights Act, or any other provision of law relating to prohibited discrimination against any person; (2) when its application results in, or is coupled with, an act prohibited by Section 365 of the California Penal Code, or any other provision of law relating to the duties of innkeepers; (3) when public officers or employees are acting within the course and scope of their employment or in the performance of their official duties; or (4) when persons are engaging in activities protected by the United States Constitution or the California Constitution or when persons are engaging in acts which are expressly required or permitted by any provision of law. (H) Violation of any of the provisions of this section shall be a misdemeanor. -- Page 3 of 4 Pages -- (I) If any part or provision of this section, or the application thereof to any person or circumstance, is held invalid, the remainder of the section, including the application of that part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this section are severable. I HEREBY CERTIFY that the foregoing Ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on $EP 2 4 1997 , by the following vote: Ayes: Councilmember DeMond, C~ar~on, Smith, McDermott, Rowles, Sullivan, Salvaggio Noes: Councilmember Abstain: Councilmember '~-~._ Absent: Councilmember CITY CLERK and Ex Offiord Clerk of the Council of the City of Bakersfield APPROVED '~EP 2,~ 1997 Mayor of the City of Bakersfield APPROVED as to form: JUDY K, SKOUSEN City Attorney JUDY K, SKOUSEN City Attorney CH:cj S:\COUNClL\ORD\TRE$ PAS 1.0RD-- August 26, 1997 -- Page 4 of 4 Pages -- ORIGINAL AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA ) ) SS. COUNTY OF KERN ) PAMELA A. McCARTHY, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 3rd day of October, 1997 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 3792, passed by the Bakersfield City Council at a meeting held on the 24th day of September, 1997, and entitled: An Ordinance adding Chapter 9.35 to the Bakersfield Municipal Code relating to trespassing on private property. /s/ PAMELA A. McCARTHY City Clerk of the City of Bakersfield