After repeated continuances, the proposed Teen Home Drinking Ordinance returns to the Council for reconsideration on Monday. Minor modifications were made by Trish Kelley and JP Ledesma as a two-person Ad Hoc Committee.
The latest version still creates a penalty of up to 6 months in jail or a $1,000 fine, but violaters would have to “knowingly” be responsible for an event where two or more persons under 21 are in possession of alcoholic beverages or controlled drugs. Potential violaters are those who organize, permit, supervise or are in charge of premises where the underage acts occur.
If the violating event was hosted by a juvenile under age 18, however, the juvenile’s parents would be vicariously liable for the penalty regardless of whether they actually knew of the gathering.
Offending events would not be deemed a nuisance under the updated proposal, and rights to appeal to the City Manager and City Council were eliminated. The Ordinance is formally titled an Ordinace for Social Host Underage Drinking and Consumption Accountability.
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At the July 4th Street Faire, beer was served. If someone poured the beer into a soda can, and gave it to a juvenile or a minor, would the city be held accountable for hosting a party that served alcohol to a minor?
By removing the burden of proof, an officer just has to make the assumption that a crime has been committed simply because there is beer on the premises with youth in attendance.
At the June 2 council meeting, while under questioning by Councilman Ledesma, in regards to a party on Santa Maria, Police Chief Bernardi raised the question: “Why didn’t you arrest him for providing alcohol?” Bernardi answered his own question this way: “We have to be able to prove that someone furnished the kids alcohol.”
Again, in referring to the Santa Maria party, Ledesma asked Bernardi: “You don’t know if he (the host) furnished alcohol?”
Police Chief Bernardi responded that this ordinance does not require that burden of proof.
Bernardi continued to state: “We do not have to prove that they furnished the alcohol. We just have to show that the person knowingly permitted the alcohol or controlled substances to be consumed.”
He continued with: “In order to prove that he furnished, we are going to have to get his statements and some corroborative evidence, maybe some statements of the kids and that‘s very difficult to get. And that’s why this ordinance would be beneficial in those situations.”
Councilman Lance MacLean gets it. He made the following statements: “My biggest objection to this and you (Bernardi) stated it. The burden of proof drops for the police. Basically this ordinance does not require the police to have proof. They can just make the accusation that there was underaged drinking; give a ticket – a criminal misdemeanor ticket to the person of that residence; and now it is the responsibility of that person to try and clear their good name through the court system, and I can tell you that is not easy or cheap; and without the burden of proof, I don’t see what tool we are providing other than lowering the standard by which a person can be prosecuted.”
It seems Lieutenant Bernardi, who heads a $14+ million dollar department, prefers his officers to issue a citation and leave. Arrests are too difficult and time consuming – and he doesn’t want to take custody of the minors because “one of the problems with juveniles is once we take custody of them then we are stuck babysitting them until we find a responsible party…” So it is easier to blow out our Constitutional protections instead.
We are also being told that, “The OCSD believes that this tool will assist them in maintaining the quality of life that this community expects.”
But at what cost to our civil liberties? When one is charged with drunk driving it is because of a failed Breathalyzer test and/or a field sobriety test. With this ordinance, our 4th, 5th and 14th protections are lost, making us guilty until proven innocent.
To answer my own question regarding city liability for allowing underaged drinking at the street fair – the answer is: No – the city is not liable. This ordinance only applies to private property.
We need to fully understand the unintended consequences that this ordinance will bring to the doorsteps of our citizens.
There is a Web site called socialhost.org that provides some good information about social host ordinances and parental liability.
The organization, The San Diego County Alcohol Policy Panel, is a coalition of youth and adult leaders representing various sectors of the community. Their mission is “to prevent underage drinking by changing the social, legal and commercial environments in which alcohol is made available and/or desirable to young people.”
As I stated in an earlier post, the schools that our Mission Viejo students attend also encompass students in our neighboring cities and communities.
Before a city ordinance is passed, perhaps the city should consider creating a committee with the goal of establishing a similar coalition and panel as they have done in San Diego County, including all areas within the boundaries of both Saddleback Unified and Capistrano Unified school districts.
Mayor Kelley makes a point about other ordinances for “trival” offenses being cause to cite citizens with criminal charges. Such as, dogs off leash on a property owners front yards, dogs urinating in parks, 16 year olds playing on playground equipment. According to city statutes these are all cause for criminal prosecution. The mayor makes the point, that if they (City Council) can do this, than why not the social host ordinance too?
These findings about other ordinances for trivial offenses that go to the length of citing respectable citizens with criminal offenses is just as troubling, and makes a point regarding the criminalization of society/communities/citizens that is a slow and creeping degradation of our liberties. It’s that creeping movement toward over-regulation that should draw everyones attention to this ordinance in the first place.
It’s the idea that Government “should” act because it can, rather than acting because it “should.” Sure the city Government can institute this ordinance by law. The question is, should it?
Is criminalizing a homeowner who lets his or her dog off leash on their own property the right thing to do in the safest city in America? Is criminalizing a child using playground equipment going too far? Is criminalizing a parent who unknowingly has 2 teens or more on their property drinking going to far? Do the current conditions in our fine city cry out for such ordinances?
At the end of the day, these and other laws while seemingly innocent in there intent, have the effect of over-regulating our community not because our citizens should or need to be regulated in such a manner, but simply because Government can.
At the heart of this debate is whether we citizens believe, and the city council believe that this city is what is, as a result of it’s Government, or as a result of the citizens that populate it.
If you believe the caliber of the city’s people is the cause, than why is this ordinance needed? How many house parties where this is an issue, take place weekly, monthly, annually in our city? How many traffic collisions involving drug and alcohol use and teens vs. adults take place in our city? Of those how many were law enforcement able to identify the source of alcohol?
We know the city council has the community’s best interest in mind. That is not a matter of debate. The question is does this community need this, or does the council want it? Is this an appropriate use of time and city resources, when there are other challenges before the council supported by real analytical metrics that call out for action? Or should the council support an ordinance that attempts manage a non-issue and regulates everyone in the city by the lowest common denominator in our community?
On this ordinance – will the council favor erring on the side of less Government, instead of more regulation.
It appears that judgement will likely fall on the shoulders of Councilman John Paul Ledesma, and whether he stays true to his conservative values that earned him the seat he now occupies.