Chapter 10.66
LOUD AND UNRULY GATHERINGS
Sections:
10.66.020 Loud or Unruly Gathering—Public Nuisance.
10.66.030 Posting of Notice Regarding Loud or Unruly Gathering.
10.66.040 Second and Subsequent Responses.
10.66.050 Notice of Violation.
10.66.060 Violation—Penalty—Civil Fine.
10.66.070 Administrative Hearing, Appeal.
10.66.080 Collection of Delinquent Costs.
10.66.010 Definitions.
For the purposes of this chapter, the following definitions shall apply:
A. “Loud or unruly gathering” means a gathering of eight or more persons on any residential unit for a social occasion or other activity upon which loud or unruly conduct occurs and results in a public nuisance or a threat to the public health, safety, general welfare, or quiet enjoyment of residential property or nearby public property.
1. As used in this chapter, loud or unruly conduct includes, without limitation, any or all of the following:
a. Excessive noise or traffic;
b. Obstruction of public streets by crowds or vehicles;
c. Obstruction of rights-of-way by people or vehicles;
d. Public drunkenness;
e. The service of alcohol to minors;
f. Possession and/or consumption of alcohol by minors;
g. Assaults, batteries, fights, domestic violence or other disturbances of the peace;
h. Vandalism;
i. Litter; or
j. Urinating or defecating in public.
2. Loud or unruly conduct does not include any activity that is:
a. Protected by Article 1, Section 4 of the California Constitution;
b. Protected by the First or Fourteenth Amendments to the United States Constitution; or
c. Regulated by the California Alcoholic Beverage Control Act.
B. “Responsible person” means and includes without limitation:
1. Any person(s) who is present at and rents, leases or otherwise is in charge of the residential unit where a loud or unruly gathering occurs; or
2. Any person(s), including any business, company or entity, who organizes or sponsors a loud or unruly gathering; or
3. Any person(s) who attends a loud or unruly gathering and engages in loud or unruly conduct.
If the responsible person is a juvenile, then the parent(s) or guardian(s) of that juvenile shall also be considered a responsible person.
C. “Residential unit” means any residential “dwelling unit,” as that term is defined in Section 20.70.020, and includes any garage, carport, walkway, yard, patio, deck, or other similar area associated with an individual dwelling unit. However, “residential unit” does not include any room or unit of a hotel or motel.
D. “Owner” means any person(s), including any firm, association, organization, partnership, trust, business, corporation, company or entity, who owns the residential unit where a loud or unruly gathering occurs.
E. “Juvenile” means any person under the age of eighteen (18) years old.
F. “Minor” means any person under the age of twenty-one (21) years old. (Ord. 2011-13 § 1 (part), 2011)
10.66.020 Loud or Unruly Gathering—Public Nuisance.
A. It shall be unlawful and constitute a public nuisance for any owner or responsible person to cause or allow a loud or unruly gathering to occur at any residential unit within the City. A loud or unruly gathering may be abated by the City by all reasonable means, including, but not limited to, an order of a peace officer requiring the loud or unruly gathering to be disbanded, the issuance of citations, and/or the arrest of any person(s) committing a violation of law under applicable State or local laws.
B. Nothing in this section shall be construed to impose liability on an owner, resident of the residential unit, the person in charge of the residential unit, or the organizer or sponsor of the gathering, for the conduct of persons who are present without the express or implied consent of the resident, person in charge of the residential unit or the organizer or sponsor, as long as the resident, person in charge of the residential unit or the organizer or sponsor has taken all steps reasonably necessary to exclude such uninvited persons from the residential unit, including an owner who is actively attempting to evict a tenant from the residential unit.
C. Where an invited guest engages in conduct which the resident, person in charge of the residential unit, or the organizer or sponsor could not reasonably foresee and the conduct is an isolated instance of an invited guest at the event violating the law which the resident, person in charge of the residential unit, or the organizer or sponsor is unable to reasonably control without the intervention of a peace officer, the unlawful conduct of the individual invited guest shall not be attributable to the owner, resident, person in charge of the premises, or the organizer or sponsor for the purpose of determining whether the event constitutes a loud or unruly gathering. (Ord. 2011-13 § 1 (part), 2011)
10.66.030 Posting of Notice Regarding Loud or Unruly Gathering.
A. Posting of Residential Unit. When a peace officer intervenes at a loud or unruly gathering, the residential unit at which the loud or unruly gathering occurs shall be posted with a black and white notice stating:
1. That the intervention was necessary as a result of a public nuisance caused by a loud or unruly gathering;
2. The date of the intervention;
3. That any subsequent loud or unruly gathering within ninety (90) days from the date of the prior loud or unruly gathering may result in civil fines for all responsible person(s) as well as any other person present at the subsequent loud or unruly gathering; and
4. That is it unlawful to remove, alter, tamper with or deface the notice.
B. Without written authorization from the City, it shall be unlawful for any person to remove, alter, tamper with or deface the posted notice of a loud or unruly gathering from the residential unit prior to the expiration of the entire ninety (90) day period from the date of posting.
C. Without written authorization from the City, it shall be unlawful and subject to a civil fine for any owner or person who rents, leases, or otherwise has control of the residential unit where a notice has been posted of a loud or unruly gathering to allow the removal, alteration, tampering with, or defacement of the posted notice of a loud or unruly gathering from the residential unit prior to the expiration of the entire ninety (90) day period from the date of posting.
D. Mailing of Notice to Owner. If a notice is posted pursuant to subsection (A) of this section and the owner of the residential unit is different than any responsible person who received a citation or notice at or near the time of posting the notice, a notice concerning the loud or unruly gathering shall be mailed to such owner of the residential unit at the address shown on Orange County’s last equalized property tax assessment roll, or the supplemental roll, whichever is more current. The notice shall advise the owner that any subsequent loud or unruly gathering on the same premises within ninety (90) days of the loud or unruly gathering that is the subject of the notice may result in additional civil fines as established by this chapter. (Ord. 2011-13 § 1 (part), 2011)
10.66.040 Second and Subsequent Responses.
If, after posting of a notice pursuant to Section 10.66.030(A), a peace officer is required to respond to the residential unit based upon another loud or unruly gathering and the owner of that residential unit does not reside within the residential unit, then the owner shall not be liable for the increased fine amount for the second or subsequent response unless notice has been mailed to the owner in compliance with Section 10.66.030(D) and fourteen (14) days have passed since the mailing of said notice. (Ord. 2023-22 § 497, 2023; Ord. 2011-13 § 1 (part), 2011)
10.66.050 Notice of Violation.
A. The City shall give a notice of a violation of Section 10.66.020(A) by issuing a citation or notice of violation to the responsible person within a reasonable time following the violation, but not exceeding forty-five (45) days. The citation or notice of violation shall be served either by personal service on the responsible person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such responsible person to be notified, at their last known address as the same appears in the public records of the City.
B. Service by personal service shall be deemed to have been complete when served on the responsible person. Service by mail shall be deemed to have been completed at the time of deposit by the City in the mail for delivery by the United States Postal Service.
C. The citation or notice of violation shall include the following information:
1. The name of the responsible person;
2. The address of the residential unit where the loud or unruly gathering occurred;
3. The date and time of the response by a peace officer to the loud or unruly gathering;
4. A summary description of the loud or unruly conduct;
5. The name of the peace officer who ordered the loud or unruly gathering disbanded, issued citations, or posted the residential unit;
6. An order prohibiting the continuation or repeated occurrence of the violation;
7. A statement concerning the amount of the civil fine imposed and an explanation of how and when to pay the civil fine;
8. Notification of the right to appeal, including the time within which the violation may be contested and the place to submit a written appeal; and
9. Notification that the City may impose a lien on the subject property, or pursue other lawful means to collect the civil fine, in the event of nonpayment of any civil fines. (Ord. 2011-13 § 1 (part), 2011)
10.66.060 Violation—Penalty—Civil Fine.
A. The following civil fines shall be assessed for violations of Section 10.66.020(A):
1. A civil fine not exceeding five hundred dollars ($500.00) for a first violation;
2. A civil fine not exceeding one thousand dollars ($1,000.00) for a second violation within ninety (90) days of the first violation;
3. A civil fine not exceeding two thousand dollars ($2,000.00) for a third violation within ninety (90) days of the first violation; and
4. A civil fine not exceeding three thousand dollars ($3,000.00) for a fourth and any subsequent violations within ninety (90) days of the first violation.
B. The following civil fines shall be assessed for violations of Section 10.66.020(A) that occur within the West Newport Safety Enhancement Zone, as established by Section 1.04.060:
1. A civil fine not exceeding one thousand five hundred dollars ($1,500.00) for a first violation;
2. A civil fine not exceeding three thousand dollars ($3,000.00) for a second and any subsequent violations within ninety (90) days of the first violation.
C. Any responsible person who is present at a residential unit that has a notice posted pursuant to Section 10.66.030(A) shall be presumed to have notice of the prior violation(s) by virtue of the posted notice(s) and shall be subject to a civil fine according to the number of violation(s) at the residential unit within the preceding ninety (90) day period pursuant to the civil fine schedules in subsection (A) or (B) of this section.
D. A civil fine not exceeding two thousand dollars ($2,000.00) shall be assessed for a violation of Section 10.66.030(B). Additionally, any person violating Section 10.66.030(B) may be prosecuted for a misdemeanor, and upon conviction, shall be punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment for a term not exceeding six months, or by both such fine and imprisonment.
E. A civil fine not exceeding one thousand dollars ($1,000.00) shall be assessed for a violation of Section 10.66.030(C).
F. All civil fines imposed under this chapter shall be due and payable to the City’s Finance Department within the earlier of thirty (30) days from the issuance of a citation or service of the notice of violation.
G. Any owner or responsible person who intends to request an administrative hearing pursuant to Section 10.66.070 may request an advance deposit hardship waiver pursuant to Section 1.05.060(B). An owner or responsible person who is unable to pay all or a part of the civil fine due to the person’s actual financial inability may file a written request for a civil fine waiver with the Finance Director within fifteen (15) days from the date of service of the citation or notice, whichever is earlier. The failure of any owner or responsible person to timely file a written request for a civil fine waiver with the Finance Director shall be deemed a failure to exhaust the owner’s or responsible person’s administrative remedies with regard to the same.
1. The written request for a civil fine waiver shall be in writing and describe with particularity the owner’s or responsible person’s actual financial inability demonstrating why all or a part of the fine should be waived. Further, the written request for a civil fine waiver must be accompanied by a sworn affidavit and demonstrate to the satisfaction of the Finance Director the owner’s or responsible person’s actual financial inability that necessitates a waiver of all or a part of the civil fine amount. The Finance Director is entitled to request additional documentation and information from the owner or responsible person in order to fully assess the owner’s or responsible person’s actual financial inability. The failure of any owner or responsible person to timely submit all requested additional documentation and information to the Finance Director as requested shall be deemed a failure to exhaust the owner’s or responsible person’s administrative remedies with regard to the same.
2. Once a complete written request for a civil fine waiver is filed with the Finance Director the requirement to pay the civil fine shall be stayed until the Finance Director determines whether to grant or deny the request.
3. If the Finance Director grants the written request for a civil fine waiver, the owner or responsible person shall not be required to pay the civil fine. If the Finance Director determines that the owner or responsible person has the financial ability to pay all or a part of the civil fine on a reasonable payment plan, the Finance Director shall so notify the owner or responsible person and the owner or responsible person shall execute any agreements required by the Finance Director to establish the payment plan.
4. The granting of any request for a civil fine waiver or payment plan shall not excuse or discharge any continuation or repeated occurrence of any violation of this chapter, nor shall it bar further enforcement action by the City.
5. If the Finance Director denies the written request for a civil fine waiver the civil fine must be paid within ten (10) days from the date of service of the Finance Director’s determination.
6. The Finance Director’s determination shall be (a) made within fifteen (15) days of the date of receipt of the complete request or any additional information as requested by the Finance Director; (b) in writing; and (c) served either by personal delivery on the owner or responsible person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such owner or responsible person. The decision of the Finance Director shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.
H. The civil fines and criminal penalties imposed in this chapter shall be in addition to any other fines and/or penalties imposed for violations of local, State, and/or Federal law during a loud or unruly gathering.
I. Any owner who does not reside within the residential unit and has (1) included covenants within the written lease or rental agreement for the premises on which a loud or unruly gathering occurs that contain specific language prohibiting the activities described in this chapter; and (2) demonstrated due diligence in abating an unmanageable tenant(s) or responsible person(s) for a loud or unruly gathering shall not be liable under this chapter. Prior to July 1, 2012, an owner who does not reside within the residential unit and has a written lease or rental agreement for the residential unit on which a loud or unruly gathering has occurred shall only need to demonstrate due diligence in abating an unmanageable tenant(s) or responsible person(s) for a loud or unruly gathering to not be liable under this chapter.
J. Any owner who does not reside within the residential unit, has a written lease or rental agreement for the residential unit and had the same residential unit posted with a notice pursuant to Section 10.66.030(A) may file a written petition with the Chief of Police requesting permission to remove the posted notice prior to the expiration of the ninety (90) day period. The Chief of Police may grant the owner’s written petition upon a satisfactory showing by the owner that the responsible person(s) for the loud or unruly gathering are no longer in possession of or allowed to occupy the residential unit.
K. Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder. (Ord. 2023-22 § 498, 2023; Ord. 2012-13 § 3, 2012: Ord. 2011-13 § 1 (part), 2011)
10.66.070 Administrative Hearing, Appeal.
A. Any owner or responsible person who, pursuant to this chapter, is (1) subject to a civil fine; or (2) has had their residential unit posted with a notice concerning a loud or unruly gathering, shall have the right to file a request for an administrative hearing to appeal the imposition of the civil fine and/or the posting of the premises. Any such request shall be submitted to the City’s Finance Department in writing on the form required by the City within thirty (30) days from the date of service of the citation, notice of violation or posting of the premises, whichever is earlier. The written request for an administrative hearing shall be submitted to the City with an advance deposit of the civil fine unless a request for a civil fine waiver or an advance deposit hardship waiver has been filed pursuant to Sections 10.66.060(G) and 1.05.060(B). No administrative hearing before a Hearing Officer shall be held unless and until a request for hearing form has been completed and submitted, and the fine has been deposited in advance or an advance deposit hardship waiver has been issued.
B. The failure of any owner or responsible person to timely file a written request for a hearing, as required in this section, shall be deemed a failure to exhaust the owner’s or responsible person’s administrative remedies and render the citation, notice of violation and/or posting of the premises final.
C. Any civil fine which has been deposited shall be refunded if it is determined, after an administrative hearing, that the owner or responsible person who requested the administrative hearing was not responsible for the violation(s) or there was no violation(s) as charged in the citation, notice of violation or posting on the premises. If, after the administrative hearing, it is determined that the owner or responsible person was responsible for the violation(s), any civil fine previously deposited shall be retained by the City.
D. The City Manager shall designate the Hearing Officer for the administrative hearing. The Hearing Officer shall not be an employee of the City. The employment, performance evaluation, compensation and benefits of the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the result of the administrative hearing as determined by the Hearing Officer.
E. A hearing before the Hearing Officer shall be set for a date that is not less than fifteen (15) and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. The City and the owner or responsible person may mutually agree to waive or modify or change the date of the preceding.
F. The Hearing Officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the owner or responsible person is liable for the violation(s).
G. The owner or responsible person requesting the administrative hearing shall be given the opportunity to testify and present witnesses and evidence concerning the violation(s).
H. The failure of any owner or responsible person to appear at the administrative hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative remedies, and render the citation, notice of violation, or posting of the premises final, including any civil fine imposed thereby.
I. The citation, notice of violation, and/or posted notice on the premises, together with any additional documents or evidence submitted by the City, shall constitute prima facie evidence of the respective facts contained in those documents and evidence.
J. If the City submits any additional documents or evidence to the Hearing Officer for consideration at the administrative hearing, then a copy of the same shall be served by mail on the owner or responsible person requesting the hearing at least five days prior to the date of the administrative hearing. The failure of either party to receive materials prior to the hearing shall not affect the validity of the proceedings, but may entitle the party to a reasonable continuance of the hearing.
K. If the owner or responsible person desires to submit any documents or evidence to the Hearing Officer, then a copy of the same shall be served by mail on the City at least five days prior to the date of the administrative hearing. The failure of either party to receive materials prior to the hearing shall not affect the validity of the proceedings, but may entitle the party to a reasonable continuance of the hearing.
L. Other than is provided in this section, no other discovery is permitted. The administrative hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this State. However, irrelevant or unduly repetitious evidence shall be excluded.
M. The Hearing Officer may continue the hearing from time to time and/or request additional information from the City, the owner or responsible person, or both prior to issuing a written decision.
N. After considering all of the testimony and evidence submitted at the administrative hearing, the Hearing Officer shall issue a written decision within ten (10) days of the administrative hearing. The written decision shall state the reasons for that decision. The decision of the Hearing Officer shall be final.
O. The written decision of the Hearing Officer shall be served either by personal delivery on the owner or responsible person or by deposit in the mail for delivery by the United States Postal Service, in a sealed envelope, postage prepaid, addressed to such owner or responsible person to be notified, at their last known address as the same appears in the public records of the City.
P. Any owner or responsible person aggrieved by a written decision of a Hearing Officer following an administrative hearing may obtain review of the decision by filing a petition for review with the Orange County Superior Court—Harbor Justice Center in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4. (Ord. 2023-22 § 499, 2023; Ord. 2012-13 § 4, 2012: Ord. 2011-13 § 1 (part), 2011)
10.66.080 Collection of Delinquent Costs.
A. The amount of any civil fine imposed pursuant to this chapter shall be deemed a debt owed to the City.
B. At its discretion, the City may pursue any and all legal and equitable remedies to collect unpaid fines imposed pursuant to this chapter. Pursuit of one remedy does not preclude the pursuit of any other remedy. It is intended that persons causing, maintaining, and/or permitting the violation, and not the taxpayers, bear the financial burden of the City’s enforcement efforts. Remedies available to the City to collect unpaid fines and costs include the following, without limitation:
1. Referring the delinquent account to a collection agency;
2. Authorizing a lien to be recorded on the property for any civil fines imposed against the owner; and/or
3. Authorizing a special assessment upon the property for any civil fines imposed against the owner.
C. The City shall be entitled to recover all costs related to enforcing any violation(s) of this chapter that are recoverable under applicable local, State or Federal law.
D. Any person who fails to pay any fine shall be liable in any proceeding brought by the City for the costs incurred in securing payment of the unpaid amount, including without limitation, administrative costs and attorneys’ fees. Such collection costs shall be in addition to any penalties, interest, and/or late charges imposed upon the unpaid fine. (Ord. 2011-13 § 1 (part), 2011)