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