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1 ~------~EW BUSINESS c "making a positive difference now" Staff Report Council Meeting October 16 t h, 2012 TO: FROM: RE: Honorable Mayor and Council Members Brian Williams, Lieutenant AN ORDINANCE OF THE CITY OF SOUTH LAKE TAHOE CITY COUNCIL AMENDING CITY CODE CHAPTER 18 (OFFENSES - MISCELLANEOUS), SECTIONS 18-1 (CURFEW), 18-2 (DEFINITIONS) AND 18-3(OFFENSES AND DEFENSES) Recommendation: WAIVE FIRST READING (AND READ BY TITLE ONLY); REFER TO SECOND READING AND ADOPTION. Issue and discussion: Over the past four years the South Lake Tahoe Police Department has recognized an alarming rate ofjuvenile truancy, drug abuse, and criminal behavior committed by juveniles throughout our city. Local truants frequently find convenient locations to associate with one another while participating in a variety ofdelinquent behavior, including the consumption of alcohol, smoking tobacco and marijuana, the abuse of other dangerous controlled substances, the commission of residential and commercial burglaries, gang activities (tagging, graffiti and violence) and a host of other types of criminal behavior. The following crimes are too common within the City due to our current inability to effectively discourage student truancy: (a) Residential burglaries (b) Shoplifting of alcohol, food and other merchandise (c) Vandalism / Malicious mischief (d) Drug and alcohol offenses, particularly while local schools are scheduled to be in session (e) Gang related violence, recruitment, and participation, Cities may enact juvenile curfews in an effort to protect minors' safety and general welfare, but only if the ordinance is narrowly tailored and contains reasonable exceptions. Youth curfew ordinances typically prohibit minors under a certain age from "tarrying or remaining" in or on public streets between certain hours late at night. In re A.G. (2010) 186 Cal.AppAth 1454, 1462; Nues v. City ofsan Diego (9th Circ. 1997) 114 F3d 938. Moreover, an ordinance that prohibits school-age children subject to compulsory education from being in public during the hours that school is in session is not preempted by state law. Harrahill v. City ofmonrovia (2002) 104 Cal.AppAth 761. The City of South Lake Tahoe presently has a curfew ordinance which provides that minors (under the age of 18) are prohibited from being in a public place between the hours of 10 p.m. and 6 a.m., subject to certain defenses. (SLTCC ). The proposed ordinance amendment will add a daytime provision applicable to minors subject to compulsory education. When school is in session, minors who lawfully fau under the

2 Staff Report: Curfew Ordinance Revision October 16, 2012 CC Meeting Pg 2 provisions of compulsory education would be prohibited from being present in a public place, subject to exceptions set forth in Section (Attachment A) This ordinance amendment would establish a stricter City's posture toward truancy by holding students and/or their parents legally accountable for a minor's whereabouts when kids should be in school. Similarly, it would also hold accountable the proprietor of any business, or member of the general public who may facilitate or encourage such delinquency during any time of day when school is scheduled to be in session, and when such minor should actually be in school. This type of ordinance has been used throughout the United States. Several California cities such as Monrovia, Los Angeles, Fresno and Redondo Beach, have employed such ordinances with positive results. Each of these referenced cities have reported a measured improvement in rates of school attendance, a higher level of graduation rate, higher academic grade point averages, and a correlating reduction in crime. They report a decreased burden on their respective juvenile probation departments, police departments, and courts, while fostering improvement in the student productivity and general community protection. The South Lake Tahoe Police Department and South Tahoe Unified School District have enjoyed a very close working partnership for several years. The partnership between the police and the school district has a proven inf1uential and effective history in our community. Our police department staff and the administrative staff of the school district have been engaged in discussions regarding this ordinance revision as it relates to our mutual interest and efforts to quell truancy rates and bolster school attendance. LTUSD has consistently maintained these issues as high priority goals. They are currently exploring various strategies within the scope of the school district authority to reach and maintain their attendance goals and to provide the best possible methods to encourage students to remain in school and away from the array of negative impacts associated with truancy. This ordinance amendment will provide an effective tool to hold students, parents and third parties lawfully accountable to mitigate truancy opportunities an to ensure these juveniles are in school. The imposed fines will have a leveraging effect upon parents to remain engaged in the oversight and welfare of their children, thus vicariously encouraging students to attend and remain in school. Offenders would face the potential of consequences beyond the current and more limited administrative sanctions imposed by the school system (detention, parent notification via phone, etc.). On line research conducted by SLTPD into several US cities using this type of ordinance indicate strongly positive responses from the vast majority of participating communities and governmental agencies. Should the Council approve this amendment to the curfew ordinance, the school resource officer of the police department would initiate a public education effort to help bring community attention to the issue. The first four citations issued to an offending juvenile would be infractions, and thereafter a misdemeanor. The goal is not to issue citations per se, but rather to generate voluntary compliance to the law, reduce truancy and the associated delinquent conduct of truant minors in the community.

3 Strategic Plan and Business Plan Relevance: Staff Report: Curfew Ordinance Revision October 16, 2012 CC Meeting Pg 3 The action to authorize the proposed amendment to our curfew ordinance meets many of the City's strategic priorities including Partnership Development, Improving the Built Environment, and Public Trust and Accountability. These changes will help us work in partnership with other community stakeholders, such as our local school district, parents and our business community to help ensure the welfare of our children; improve our built environment by taking stronger measures to prevent delinquent conduct (including graffiti and vandalism) and building trust and accepting accountability to make our community a safer place. Financial and/or policy implications: None. ;Q~J~2? By: Brian Williaffi~t Attachments: A: DRAFT ORDINANCE

4 18-1 Curfew- Purpose and intent The city council of the city of South Lake Tahoe finds that a juvenile curfew ordinance is necessary and desirable because the protection of minors warrants a higher degree of governmental regulation. This higher degree of regulation is premised upon the peculiar vulnerability of children and minors' inability to make critical decisions in an informed and mature manner The city recognizes a compelling interest in preserving the safety of the community generally and providing a higher degree of protection for its minors specifically during nighttime hours. The city also recognizes a compelling interest in supervision of and provision of a higher degree of protection for its minors specifically during school hours because when children are absent from school without excuse, they are at greater risk of both being harmed and of causing harm to others. It is the intent of the Council in adopting this ordinance to provide law enforcement with an additional enforcement tool to protect the health, safety, and welfare of minors under the age of eighteen and of the general public.lltwy person. including minors. parents. guardians. owners, B operators, and employees of establishments. who violates the following provisions under sections 18-1 through 18-3,7 is subject to penalization as set forth In sections and ]...m A. Any minor who is subject to compulsory education or to compulsorv continuation education under State law to remain in any public place or on the premises of any establishment within the city during daytime curfew hours: or B. Any parents or guardian of a minor to knowingly permit. or by insufficient control, allow the minor to remain in any public place or on the premises of any establishment within the city during daytime curfew hours: or C. Any owner. operator. or employee of an establishment to knowingly permit a minor to remain in or upon the premises of an establishment during daytime curfew hours. Comment [1]: This rationale is pulled directly from Horrohill v. Cityal Monrovia (104 Cal.App.4th 761, 766 (2002). Compulsory attendance and truancy enforcement are within the educational power of the state and not subject to a municipality's constitutional Art, XI, 7 police power. (765.1 The Monrovia daytime curfew ordinance was an exercise of the municipality's police power because "Monrovia City Council recognized the risks associated with minors who the community assumes are being supervised at school but who in fact are not, and sought to address this problem by making it unlawful for a child who is supposed to be in school to be unsupervised in a public place. This is a classic exercise of a city's police power... The fact that the Ordinance makes reference to the compulsory education laws simply does not render it an education ordinance." (766.) 18-2 Curfew - Definitions, The following definitions are applicable to SLTCC 18-1 through 18-3.~: A. "Curfew hours" means the period from 10:00 p.m. any night until 6:00 a.m. the following morning. B. "Daytime curfew hours" means the hours during the day when the school, which the minor would normally attend. is in session. on days when that school is in session. The "field" at issue in the ordinance is off-campus juvenile activity during school hours. (771.) Comment [m2]: language requested by Chief Uhler to emphasize that parents are subject to, and potentially liable, for violations of this ordinance. Q8. "Emergency" means unforeseen circumstances or a situation that calls for immediate action. The term includes, but it not limited to, an automobile accident, fire or explosion, natural disaster or any condition requiring immediate action to prevent bodily injury or loss of life. QG. "Establishment" means any privately-owned place of business operated for profit to which the public is invited including, but not limited to, any place of amusement or entertainment. gq. "Guardian" means (1) a person who, under court order, is the guardian of the minor; or (2) a public or private agency with whom a minor has been placed by a court. EE. "Minor" means any person under 18 years of age.

5 ~. "Operator" means any individual, firm, association, partnership or corporation operating, managing or conducting any establishment. t:!g. "Parent" means a person who is a natural parent, adoptive parent or step-parent of a minor "Responsible adult" means a person at least 18 years of age and authorized by a parent or guardian to have the care and custody of a minor.,!l. "Public place" means any place the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, common areas of schools, hospitals, apartment houses, office buildings, transport facilities and shops.!sj. "Remain" means to (1) linger, stay or be present; or (2) fail to leave the premises when requested to do so by a peace officer, the owner, operator or other person in control of the premises. (Ord. 23 1; Ord ) 18-3 Curfew - Offenses. It is unlawful for: A. Any minor to remain in any public place or on the premises of any establishment within the city during curfew hours; or B. Any parent or guardian of a minor to knowingly permit, or by insufficient control allow, the minor to remain in any public place or on the premises of any establishment within the city during curfew hours; or C. Any owner. operator or employee of an establishment to knowingly permit a minor to remain in or upon the premises of an establishment during curfew hours. (Ord. 23 1; Ord ) Curfew - Defenses. A. It is a defense to prosecution of the offenses in SLTCC 18-3 that the minor was: 1. Accompanied by the minor's parent or guardian or by a responsible adult; 2. On an errand at the direction of the minor's parent or guardian or responsible adult, without detour or delay; 3. In a motor vehicle involved in intrastate or interstate travel; 4. Engaged in employment, or going to or retuming home from employment, without detour or delay; 5. Involved in an emergency; 6. On the sidewalk adjacent to the minor's residence, providing the minor is not otherwise violating the law; 7. Attending an official school, religious or other adult-supervised recreational activity sponsored by the city, a civic organization or other similar entity that takes responsibility for the safety of the minor, or going to or retuming home from such an activity, without detour or delay; 8. Exercising First Amendment rights protected by the United States Constitution, such as free exercise of religion, freedom of speech and the right of assembly; 9. Emancipated pursuant to law. B. It is a defense to prosecution under SLTCC 18-3(C) that the owner, operator or employee of an establishment promptly notified the police department that a minor was present on the premises of the establishment during curfew hours and refused to leave. (Ord )

6 Curfew - Enforcement. Before taking any enforcement action under SLTCC 18-1 through , a peace officer shall ask the apparent offender's age and reason for being in a public place or on the premises if an establishment during curfew hours. The officer shall not issue a citation or detain a minor under SLTCC 18-1 through unless the officer reasonable believes an offense has occurred and based upon the minor's response(s) and other circumstances, no defense under SLTCC 18-1 through appears present or applicable. (Ord ) Curfew - Penalties. Any person who violates a provision of SLTCC 18-1 through is guilty of a separate offense for each day or part of a day during which the violation is committed, continued it permitted. Any person who violates the offenses described in SLTCC 18-1 through shall be guilty of a misdemeanor; provided, however, that any such offense may be charged as an infraction in the discretion of the district attorney. (Ord ) Daytime Curfew - Offenses It is unlawful for: A. Any minor who is subject to compulsory education or to compulsory continuation education under State law to remain in any public place or on the premises of any establishment within the city during daytime curfew hours; or B. Any parents or guardian of a minor to knowingly permit. or by insufficient control. allow the minor to remain in any public place or on the premises of any establishment within the city during daytime curfew hours; or C. Any owner, operator. or employee of an establishment to knowingly permit a minor to remain in or upon the premises of an establishment during daytime curfew hours Daytime Curfew - Defenses A. It is a defense to prosecution of the offenses in SLTCC that the minor was: 1. Accompanied by the minor's parent or guardian or by a responsible adult; 2. On an errand at the direction of the minor's parent or guardian or responsible adult. without detour or delay; 3. Engaged in employment. or going to or retuming to school from employment. or going to or returning to school from a medical appointment. without detour or delay; 4. Involved in an emergency: 5. attending or going directly to or returning directly to school from a public meeting or an official school-sponsored sporting event. dance, or activity which is under the direction, supervision, or control of an adult and which is organized, arranged, or sponsored by the City, a local educational authority, or religious or civil organization that is taking responsibility for the minor; or 6. Canying in his or her possession a valid, school-issued, off-campus permit or pass that authorizes the minor to leave the school campus; or

7 7. Exempt by law from compulsory education or compulsory continuation education; or 8. Authorized to be absent from school pursuant to the provisions of Cal. Education Code , or any other applicable state or federal law; or 9. Traveling in the general direction of his or her school. regardless of whether school has already begun. If the minor is contacted by law enforcement within a three (3) block radius of his or her school within the first sixty (60) minutes after school has begun, it establishes a rebuttable presumption that the minor was traveling to his or her school; or 10. legally home-schooled. If a minor claims to be home-schooled, the officer shall make a reasonable attempt to determine the home-schooled status of the minor prior to taking any enforcement action pursuant to SLTCC Comment [3]: Cal. Education Code specifies excused absences from school. (e.g., illness; doctor appointments; funerals) B. It is a defense to prosecution under SLTCC that the owner, operator, or employee of an establishment promptly notified the police department that a minor was present on the premises of the establishment during daytime curfew hours and refused to leave Daytime Curfew - Enforcement Before taking any enforcement action under SLTCC , a peace officer shall ask the apparent offender's age and reason for being in a public place or on the premises if an establishment during daytime curfew hours. The officer shall not issue a citation or detain a minor under SLTCC unless the officer reasonably believes an offense has occurred and based upon the minor's response(s) and other circumstances, and no defense under SLTeC appears present or applicable. The officer shall identify the time when the officer first encountered the minor, provide the minor's stated age. and articulate the justification for the citation's issuance directly on the citation Daytime Curfew - Penalties Any person who violates a provision of SLTCC is guiltv of a separate offense for each day or part of a day during which the violation is committed. Any person who violates the offenses described in SLTCC up to four (4) times in one year shall be guiltv of an infraction. An offender shall be subject to receiving a Citv administrative citation, or a criminal citation for an infraction, in the discretion of the arresting officer. The first offense shall be punishable by a fine not exceeding $100. Subsequent violations of this section within the same school year for which the first violation citation has been issued may result in punishment as further provided in this section below. Subsequent infractions shall be punishable by a fine not exceeding $200 for a second violation, a fine not exceeding $300 for a third violation within one year, and a fine not exceeding $500 for a fourth violation within one year. Any person who violates the offenses described in SLTCC a fifth time or more in one year shall be guilty of a misdemeanor punishable by im risonment in the count 'ail not exceedin six months or b fine not exceedin one thousand dollars or b bot rovided however that an such misdemeanor under this section Comment [4]: SuCaI. Penal Code 19. may be charged as an infraction in the discretion of the district attorney_