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HomeMy WebLinkAbout11/17/2003 B A K E R'S F I E L D Sue Benham, Chair David Couch Jacquie Sullivan Staff: Trudy Slater REGULAR MEETING NOTICE LEGISLATIVE AND LITIGATION COMMITTEE of the City Council - City of Bakersfield Monday, November 17, 2003 1:00 p.m. City Manager's Conference Room Second Floor - City Hall, Suite 201 1501 Truxtun Avenue, Bakersfield, CA AGENDA 1. ROLL CALL 2. ADOPT OCTOBER 20, 2003 AGENDA SUMMARY REPORT 3. PUBLIC STATEMENTS 4. DEFERRED BUSINESS 5. NEW BUSINESS A. REVIEW, DISCUSSION AND COMMITTEE RECOMMENDATIONS RELATING TO UNDERAGE. DRINKING "KEG PARTIES" 6. COMMITTEE COMMENTS 7. ADJOURNMENT B A K E R S F I E L D Alan Tandy, City'lVlanager Sue Benham, Chair Staff: Trudy Slater David Couch Jacquie Sullivan AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMrn'EE Regular Meeting Monday, October 20, 2003 1:00 p.m. City Manager's Conference Room 1. ROLL CALL Called to order at 1:10 p.m. Members present: Councilmember Sue Benham, Chair Councilmember David Couch Councilmember Jacquie Sullivan 2, ADOPT SEPTEMBER 22, 2003 AGENDA SUMMARY REPORT Adopted as submitted. 3. PUBLIC STATEMENTS None. 4. DEFERRED.BUSINESS A. REVIEW, DISCUSSION AND COMMITTEE RECOMMENDATIONS REGARDING CITY ORDINANCE RELATING TO THE APPROVAL OF SALE OR LEASE OF PROPERTY City Manager Alan Tandy explained that the California Health and Safety Code Section 334,33 requires the legislative body (City Council) to conduct a public hearing and adopt a resolution approving any sale or lease of real property which has been acquired by a redevelopment agency directly or indirectly with tax increment monies. That statute only requires a simple majority to'adopt such a resolution. However, the statute does authorize a legislative body to require a 2/3rds vote to adopt such a resolution, if the legislative body adopts an ordinance containing that super-majority requirement. The City Council adopted such an ordinance in 1987. It means that 2/3rds of the entire Council (5 members), not 2/3rds of the Council Agenda Summary Report DRAFT Legislative and Litigation Committee October 20, 2003 Page 2 members present at the meeting, must vote affirmatively before the redevelopment agency can sell or lease its property. In the event that three Council members are absent or have conflicts of interest, the sale or lease of property could not be approved. Normally the Agency only acquires property as a "middleman" in a transaction with a developer. That is, the Agency buys property and either simultaneously or after a period of time resells it to a developer. Often there are three-party agreements. The current ordinance imposes a substantial risk in that regard. The City buys property on a simple majority vote. We enter into development agreements on a single majority vote. The City could, therefore, intend to buy a property for the sole purpose of selling it to a developer. Through a development agreement, we could even be contractually obligated to do so. If the vote was 4-3, however, the City would buy the property but, because of the current ordinance, not'be able to sell it. In short, the City would have the expense but not the revenue and could be in breach of a contract. This is an unnecessary risk that the City should not be taking. After discussion, the Committee, on a split vote, directed staff to place the issue on the City Council's agenda for discussion and approval. B. REVIEW, DISCUSSION AND COMMITTEE RECOMMENDATIONS REGARDING THE CITY'S BIDDING PROCESS Public Works Director Raul Rojas explained that pre-bid meetings often had the downside of indirectly excluding people from the pool of potential bidders and required more staff time. He indicated that pre-bid meetings, while not effective for small projects, could be used effectively for very large projects. The City's ordinance granted the flexibility to do that, allowing staff discretion on a project by project basis. Finance Director Greg Klimko noted that the incident which brought the issue to the . Committee was a miscommunication on a form used in the bidding process and that this had been corrected. Committee Member David Couch reiterated that if there is an opportunity, when it was not an operational issue, for the City to save money in splitting a bid, staff should do so. After further discussion, the Committee indicated no further action was needed. 5. NEW BUSINESS A. REVIEW, DISCUSSION AND COMMITTEE RECOMMENDATIONS RELATING TO ENFORCEABILITY OF BAKERSFIELD MUNICIPAL CODE SECTION 9.22.140 REGARDING EXCESSIVE NOISE FROM VEHICLES Committee Chair Sue Benham indicated she had received a complaint regarding vehicular noise (music) from a resident around Jefferson Park who had indicated to her that Las Vegas has an ordinance relating to excessive noise from vehicles. In the ensuing discussion, questions raised included whether the vehicle was moving or parked, whether it was on a public road or on private property, applications of the State Vehicle Code or municipal code, issuance of misdemeanors or infractions, 50 feet vs. 25 feet, whether enforcement is mainly complaint driven, citizen's vs. officer arrest, and DRAFT Legislative and Litigation Committee October 20, 2003 Page 3 the Bakersfield Police Department's position as well those of other jurisdictions. Committee Chair Benham asked that the item be brought back at a future meeting, 6. COMMITTEE COMMENTS Committee Chair Benham indicated that the Legislative and Litigation Committee had previously initiated a resolution which Council approved expressing concerns with the non- air-pollution regulated trUcks allowed in California through the NAFTA agreement (Mexican trucks on U. S. highways)~ She and Councilmembers Couch and Maggard had attended a clean air meeting in Fresno in April at which she had asked about this issue. She read for the Committee the e-mail response she had received to that question. The response indicated that on August 26, 2003 a notice in the Federal Register was issued on the U.S. Department of Transportation Federal Motor Carriers Safety Administration (FMCSA) intent to prepare a programmatic environmental impact statement (PEIS) on the issue of Mexico-domiciled trucks traveling on U.S. highways as would be allowed under NAFTA. Previously the FMCSA had prepared a programmatic environmental assessment (PEA) with a finding of no significant impact which was overturned by the 9th Circuit Court of Appeals. The Court found that FMCSA acted arbitrarily and capriciously by failing to conduct any environmental analysis. The FMCSA intends to comply with the court finding by preparing a PEIS. Mexico-domiciled trucks are not being allowed beyond a short buffer region on U. S. highways until this study is complete and all application and safety monitoring rules are approved by the FMCSA. Committee Member Couch asked whether the City and interested others would be able to comment. Committee Chair Benham asked the Attorney's Office to report back on when the comment period would be. Administrative Analyst Trudy Slater was asked to forward Committee Chair Benham's e-mail to the City Council and also to Supervisor Barbara Patrick. 7. ADJOURNMENT The meeting adjourned at 1:53 p.m. Staff A~tendeesi City Manager Alan Tandy, Administrative Analyst Trudy Slater, City Attorney Bart Thiltgen, Deputy City Attorney Ginny Gennaro; Finance Director Greg Klimko, Assistant Finance Director Nelson Smith, Real Property Manager Don Anderson, Purchasing Agent Darlene Wisham, Public Works Director Raul 'Rojas, Fleet Superintendent Ernie Medina, Public Works Operations Manager Brad Underwood, General Services Superintendent Steve Hollingsworth, Civil Engineer IV Arnold Ramming, Police Captain Bryan Lynn, Police Lieutenant Tim Taylor Other Attendees: None (L031020-MIN)  )NFID MEMORANDUM CITY ATTORNEY'S OFFICE September 29, 2003 TO: SUE BENHAM, COUNCIL MEMBER, WARD 2 FROM: BART J. THILTGEN, City Attorney ~ SUBJECT: UNDERAGE DRINKING ENFORCEMENT BY CITY Council Referral No. Ref000594 Council Member Benham requested the City Attorney research to determine if there are provisions in the law which allows prosecution of the owners of residences who hold under age drinking parties. Also, can the City make its own provisions? In response to a public statement concerning a "keg party" and the assertion there were numerous minors present and departing from the location, the office was directed to review whether the City has the ability to prosecute owners of the residences where underage drinking parties are held, and whether the City can adopt its own laws concerning such. Initially, state law establishes the prohibitions associated with underage drinking, and the City is preempted from adopting its own laws which would occupy this area, including the prohibition of underage possession of alcoholic beverages. Business and Professions Code § 25662. Violation of state law can result in juvenile court proceedings with remedies including, but not limited to, a requirement to perform community service and attendance at alcohol abuse counseling, and suspension or delay of driving privileges for up to one year. Business and Professions Code § 25662, Vehicle Code §13202.5, Vehicle Code § 23224. State law also prohibits the selling, furnishing or giving away of alcoholic beverages to persons under the age of 21. Business and Professions Code §25658. Necessarily, enforcement of these laws is a Police Department function and subject to available resources of the department. While the above preemption exists, the City is not preempted from alcohol regulations in its own facilities (e.g., parks) and there is only a limited preemption from regulating nuisance or criminal activities associated with alcohol ~sales. Most importantly, city attorneys are given specific statutory authorization, in the name of the People of the State of California, to declare and abate as a nuisance "every building or place used for the purpose of unlawfully selling, serving or giving away" alcoholic beverages. As stated above, selling, serving or giving away alcoholic beverages to underage individuals (generally, not one's own children unless being done for illicit purposes) is unlawful. Business and Professions Code § 25656. Abatement includes injunctive relief against the SUE BENHAM, COUNCIL MEMBER, WARD 2 IICONFIDEN'I~i - PJ~TECTED September 29, 2003 II BY ATTORNEY-CL'I'u~IT~ND Page 2 IIATTORNEY WORK-P,J~LOUCT ~PRIVILEGE~,~ / ~. owner of the building or place. Violation of such an injunction would be contempt of court with potential fine of $200-$1000 or up to six months in jail, or both. The fine is a lien against the property. Penal Code §11200 et seq. Of course,' if the owners of the building or place (e.g., parents) were out of town, and had no knowledge of or reason to know the party would be put on (by their son or daughter), there is a question of whether such a nuisance action would be 'appropriate or provable. However, if the adult owners of the property are present at the time of the party, and knowingly sold, served or gave away the 'alcoholic.beverages to underage individuals, in addition to being subject to the nuisance action, they would be exposed to prosecution for a violation of Business and Professions Code. § 25656, and theoretically also could be prosecuted by the District Attorney for "Contributing to the Delinquency of a Minor." Penal Code § 272. · In addition to the above authority to abate a nuisance, if the "keg party" is charging an entrance fee (this is typically the case to help pay for the beer the underage persons are consuming), then the District Attorney can bring a civil action under Business and ProfeSsions Code § 17200 against the individual who put on the party, the owner of the property (upon a showing they knew or should have known what was happening), the adults who acquired the alcoholic beverages for the minors, and in some extreme cases the facility who sold the alcohol to the minors (when the minors actually purchased the alcohol). This technique has been successfully used in Northem California counties during the late 1980's, and early 1990's, and the number of "keg parties" reduced significantly. Concurrently, and most importantly, the deleterious secondary effects which resulted from the parties also reduced. Also, alcohol selling facilities became more vigilant in their responsibility to not sell to minors. Effective enforcement utilizing this to°l is a result of cooperation among the law enforcement community, the District Attorney and the school districts. While the City would need authorization from the District Attorney to pursue this course of action, there is nothing which would preclude the City from_calling on the District Attorney to intensify their efforts in this direction. In summary, state law generally preempts the City from enacting laws which would regulate the cUrrently unlawful behavior. The state laws do allow for City nuisance and abatement acti.ons against the propertyowners Who intentionally or negligently allowed the unlawful party would occur. The District Attorney also has enforcement tools available which can be effectively used to combat this problem. -BJT:dll cc: Honorable Mayor and City Council Alan Tandy, City Manager Pam McCarthy, City Clerk · Rhonda Smiley, .Office Administrator- S:~"OUNClL~leferral$~JJn(lerage Drinking Pa~lJes - REF000594.cloc