Chapter 8.10
DISTURBANCES IN RESIDENTIAL AREAS DURING SLEEPING HOURS1
Sections:
8.10.010 Declaration of policy and purpose.
8.10.050 Maintaining a nuisance – Misdemeanor.
8.10.070 Record of costs of abatement.
8.10.080 Hearing on statement of costs of abatement.
8.10.090 Lien or special assessment.
8.10.100 Notice of special assessment or abatement lien.
8.10.110 Liability of occupant who is not owner.
8.10.120 Joint and several liability.
8.10.010 Declaration of policy and purpose.
The city council finds that the city police personnel respond to numerous disturbances in residential areas during normal sleeping hours involving unreasonably loud, raucous or jarring noises and/or conduct constituting disturbing the peace or unlawful assembly in violation of the California Penal Code. The city council further finds that such disturbances are extremely disruptive to the peace and quiet of residential neighborhoods and often constitute an immediate and significant threat and detriment to the public health, welfare and safety.
The city council finds that the city police personnel often are required to respond multiple times in the same night to a disturbance at the same location because the responding police officer’s directions to cease the disturbance go unheeded. The necessity for repeated responses to the same disturbance creates a serious drain on available law enforcement manpower, leaving city police personnel unavailable to perform other duties and, therefore, creates a significant threat and detriment to public health, welfare and safety.
It is the intent of the city council, in enacting this chapter, to enhance the city police personnel’s ability to abate disturbances which constitute public nuisances and which are immediate threats to public health or safety without making repeated responses to the scene of the same disturbance.
It is further the intent of the city council, in enacting this chapter, to enable the city police personnel to recover the excessive costs it incurs when repeated responses to the same disturbance constituting a public nuisance are necessary to abate it.
It is further the intent of the city council, in enacting this chapter, to provide the city police personnel with a procedure for quelling disturbances in residential areas during normal sleeping hours by means less drastic than resort to criminal process. [Ord. 2010-126 § 1 (Exh. A)].
8.10.020 Definitions.
The following definitions apply to the use of these terms for purposes of this chapter:
“Chief of police services” means the chief of police services or designee.
“Quiet hours” are the hours between 10:00 p.m. and 7:00 a.m. in residential areas.
“Residence” means a structure providing complete independent living facilities for one or more persons including permanent provisions for living, sleeping, eating, cooking and sanitation.
“Residential area” means any area in the city which is within 300 feet of any single-family or multifamily residence, other than commercial hotels, motels and similar establishments for temporary lodging. [Ord. 2010-126 § 1 (Exh. A)].
Cross-reference: definitions generally, AVMC 1.02.010.
8.10.030 Nuisances defined.
The following acts or conditions are hereby declared to be public nuisances:
A. Behavior constituting violation of California Penal Code Section 407 or 415 in a residential area between the hours of 10:00 p.m. and 7:00 a.m.; or
B. Noise that is unreasonably loud, raucous or jarring to persons within the residential area during quiet hours. [Ord. 2010-126 § 1 (Exh. A)].
8.10.040 Exemptions.
The following acts or conditions are exempt from the provisions of this chapter:
A. Activities conducted on the grounds of any public or private children’s nursery, elementary, intermediate or secondary school or college;
B. Outdoor gatherings, public dances and shows, provided said events are conducted pursuant to a license issued by the city pursuant to Chapter 11.05 AVMC;
C. Any mechanical device, apparatus or equipment used, related to or connected with emergency machinery, vehicles or work;
D. Any activity to the extent regulation thereof has been preempted by state or federal law. [Ord. 2011-136 § 11; Ord. 2010-126 § 1 (Exh. A)].
8.10.050 Maintaining a nuisance – Misdemeanor.
A. Any person who owns, leases or otherwise controls property on which said person knows a nuisance as defined in AVMC 8.10.030 exists and who fails to take immediate and reasonable steps to abate said nuisance shall be guilty of a misdemeanor and shall be punishable as set forth in AVMC 1.06.010(B).
B. Any person who creates a nuisance as defined in AVMC 8.10.030(B) shall be guilty of a misdemeanor and shall be punishable as set forth in AVMC 1.06.010(B).
C. The term “person” as used in this section includes corporations, partnerships and any other entity which owns, leases or controls property. [Ord. 2010-126 § 1 (Exh. A)].
8.10.060 Enforcement.
A. The chief of police services and his duly authorized officers are directed to enforce the provisions of this chapter.
B. Criminal Process. The chief of police services and/or his duly authorized deputies are authorized, pursuant to California Penal Code Section 836.5, to arrest any person without a warrant when they have reasonable cause to believe that such person has committed a misdemeanor in their presence.
C. Summary Abatement of Public Nuisances.
1. First Response/Determination of Nuisance. On the first response to a disturbance in a residential area between 10:00 p.m. and 7:00 a.m., the chief of police services shall determine whether the disturbance constitutes a public nuisance as defined in AVMC 8.10.030. If the chief of police services and/or his duly authorized deputies determine that the disturbance constitutes a public nuisance, the chief of police services and/or his duly authorized deputies, as an alternative to immediate arrest of the persons responsible for the nuisance, may proceed as set forth in this subsection.
2. First Notice. The chief of police services shall advise the persons creating the disturbance, the occupant of the property where the disturbance is located, and the owner of the property, if present, that:
a. The disturbance violates this chapter;
b. Unless they voluntarily stop the disturbance, the chief of police services will be required to take appropriate action to stop it, including arrest or citation of those violating the law; and
c. If the chief of police services is required to expend additional man-hours and/or use equipment after the first response to stop the disturbance, the owner and the occupant of the property may be charged the costs of such additional man-hours and equipment, up to $500.00.
3. Second and Subsequent Responses. If, after giving the first notice, the chief of police services receives any additional complaints about a disturbance at the same location between the hours of 10:00 p.m. and 7:00 a.m. on the date specified in the first notice or the immediately following date, as applicable, and if the chief of police services determines that the disturbance continues to constitute a public nuisance as described in this chapter and an immediate threat to public health or safety, appropriate actions will be taken to immediately abate the nuisance, including arrest and/or citation of persons violating the law.
Said notice shall be given to the occupant of the property and to the owner, if present, in written form substantially as follows:
NOTICE
FIRST RESPONSE-DISTURBANCE IN RESIDENTIAL AREA DURING SLEEPING HOURS
This NOTICE OF VIOLATION given to
(Name)___________________________
(DOB)____________________________
at (Location)
_________________________________
(Phone Number)____________________
on (Date)__________________________ at (Time)__________________________
is the result of a disturbance in a residential area between the hours of 10:00 p.m. and 7:00 a.m. in violation of Chapter 8.10 of the Aliso Viejo Municipal Code/California Penal Code Section 407/California Penal Code Section 415 (delete inapplicable provision(s)).
If it is necessary for the city police personnel to respond a second or subsequent time to stop a disturbance at this location prior to 7:00 a.m. on (Date) _______________ (either the next day or the same day, depending on time of the first response), the owner of the property and the occupant of the property may be charged for all personnel and equipment costs incurred in such second and subsequent responses, up to $500, and all violators of any applicable law will be subject to arrest and/or citation.
_________________________________
(Signature of party to whom notice given)
_________________________________
(Signature of Officer)
4. Nuisance Remedy Not Exclusive. Nothing herein shall affect the authority of the chief of police services and his officers to make lawful arrests at any time, including on the first response to a disturbance constituting a nuisance as defined in AVMC 8.10.030. [Ord. 2010-126 § 1 (Exh. A)].
Cross-reference: violations and penalties generally, Chapter 1.06 AVMC.
8.10.070 Record of costs of abatement.
The owner and/or the occupant of the property upon which the nuisance occurred shall be served with a written invoice of the costs incurred by the city in the abatement of the nuisance in accordance with AVMC 1.06.260. [Ord. 2010-126 § 1 (Exh. A)].
8.10.080 Hearing on statement of costs of abatement.
The owner or occupant may protest payment of the amount set forth in the invoice by making a written request to the city manager, within 10 calendar days of service of the invoice described in AVMC 8.10.070, for a hearing before a hearing officer. Upon receipt of such a request, the city manager shall schedule a hearing in accordance with the procedures set forth in AVMC 1.06.210 through 1.06.240. [Ord. 2010-126 § 1 (Exh. A)].
8.10.090 Lien or special assessment.
In the event the property owner fails to appeal the invoice provided pursuant to AVMC 8.10.070, the city manager or designee may determine that the proposed amount authorized pursuant to AVMC 1.06.260 shall become a lien against the property where the nuisance occurred and the city shall follow the lien and special assessment procedures established in AVMC 1.06.280. [Ord. 2010-126 § 1 (Exh. A)].
8.10.100 Notice of special assessment or abatement lien.
In the event an assessment or lien is imposed pursuant to AVMC 8.10.090, the city manager shall record a notice of such assessment or lien in accordance with AVMC 1.06.280. [Ord. 2010-126 § 1 (Exh. A)].
8.10.110 Liability of occupant who is not owner.
If the owner of the property is not the occupant of the property, and if the occupant of the property does not pay the amount set forth in the invoice within 30 calendar days after the invoice becomes final pursuant to this chapter, the city manager or designee may take all appropriate steps to collect the amount set forth in the invoice from the occupant of the property or the owner of the property. [Ord. 2010-126 § 1 (Exh. A)].
8.10.120 Joint and several liability.
If the owner and occupant of the property are different persons, they shall be jointly and severally liable for the amount set forth in the invoice. [Ord. 2010-126 § 1 (Exh. A)].
Cross-reference: noise control, Chapter 8.12 AVMC.