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HomeMy WebLinkAbout2011-07-12; City Council; 20625; Ordinance related to meeting decorum and penaltiesCITY OF CARLSBAD - AGENDA BILL 11 AB# MTG. DEPT. 20,625 7/12/11 CITY ATTORNEY ORDINANCE AMENDING CARLSBAD MUNICIPAL CODE CHAPTER 1.20, SECTIONS 1.20.300, 1.20.310, 1.20.320, AND 1.20.330, AND RENUMBERING 1.20.300 TO 1.20.302 RELATED TO DECORUM AND ENFORCEMENT, AND AMENDING SECTION 1.08.010 OF THE CARLSBAD MUNICIPAL CODE RELATED TO DESIGNATED PENALITIES DEPT. HEAD CITY ATTY. CITY MGR.(ju>— RECOMMENDED ACTION: Introduce Ordinance No. _ 1.20, sections CS-153 Amending Carlsbad Municipal Code Chapter and 1.20.330 and renumbering 1.20.300 to1.20.300, 1.20.310, 1.20.320, 1.20.302 related to decorum and the enforcement of decorum and amending section 1.08.010 related to designated penalties. ITEM EXPLANATION: On August 24, 2010 Richard Shapiro was arrested pursuant to California Penal Code section 403 for disturbing an open and public City Council meeting. The District Attorney filed a single count criminal complaint against Mr. Shapiro for violating Penal Code section 403. Thereafter, the District Attorney, exercising its independent discretion, filed an amended criminal complaint against Mr. Shapiro that alleged one misdemeanor count of violating Penal Code section 403 and three misdemeanor counts (two to four) of violating Carlsbad Municipal Code (CMC) section 1.20.330(b). Section 1.20.330(b) states that a violation of this section is a misdemeanor. Mr. Shapiro was arraigned on the amended criminal complaint. In a subsequent hearing, the District Attorney exercised its discretion and dismissed the first count (P.C. § 403) and reduced the three CMC section 1.20.330(b) misdemeanor counts to infractions. The District Attorney stated that notwithstanding the language of 1,20.330(b) (a violation of this section is a misdemeanor), CMC section 1.08.010(a) (which was amended in 2007) overrides section 1.20.330(b) thereby making the first three violations of this section, within a 12-month period, infractions and only on the fourth and subsequent violations, would the charge be a misdemeanor. The District Attorney stated that it has a policy of not prosecuting infractions due to limited resources and therefore, the District Attorney exercised its discretion and dismissed the three infractions. DEPARTMENT CONTACT: Ronald R. Ball, City Attorney 760-434-2891 ron.baH@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION:APPROVED DENIED CONTINUED WITHDRAWN AMENDED *nDnn CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES n Page 2 Mr. Shapiro's criminal case generated interest by the American Civil Liberties Union (ACLU). Prior to the District Attorney dismissing the amended complaint, the ACLU sent a letter to the District Attorney alleging that CMC sections 1.20.320 and 1.20.330 (enacted in 1979) are vague and unenforceable. Notwithstanding allegations by the ACLU and Mr. Shapiro that Carlsbad's decorum ordinance is unenforceable, which is disputed, the City Attorney recommends that these sections be amended to ensure constitutionality, enforceability and to avoid any confusion whether a violation constitutes a misdemeanor or an infraction. Carlsbad Municipal Code section 1.08.010 is revised to increase the fine value for a first and second violation of the same ordinance within one year period. A third violation of the same ordinance within a one year period is a misdemeanor. FISCAL IMPACT: There is no fiscal impact as a result of this action. ENVIRONMENTAL IMPACT: Pursuant to Public Resources Code Section 21065 and CEQA Guidelines Section 15378, this does not constitute a "project" within the meaning of CEQA and, therefore, does not require an environmental review. EXHIBITS: 1. Ordinance No. CS-153 2. Carlsbad Municipal Code Chapter 1.20 and Carlsbad Municipal Code Section 1.08 additions/strikeouts 1 2 3 4 5 6 7 8 9 10 11 Municipal Code (CMC) section 1.20.330(b); and 12 13 14 15 16 17 18 19 20 22 23 24 25 EXHIBIT 1 ORDINANCE NO. CS-153 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CHAPTER 1.20 OF THE CARLSBAD MUNICIPAL CODE, SECTIONS 1.20.310, 1.20.320 AND 1.20.330 AND ADDING SECTION 1.20.315 TO THE CARLSBAD MUNICIPAL CODE ALL RELATING TO DECORUM AND ENFORCEMENT OF DECORUM AND AMENDING SECTION 1.08.010 OF CHAPTER 1.08 OF THE CARLSBAD MUNICIPAL CODE RELATED TO DESIGNATED PENALITIES WHEREAS, On August 24, 2010 Richard Shapiro was arrested pursuant to California Penal Code section 403 for disturbing an open and public City Council meeting; and WHEREAS, the District Attorney initially filed a single count criminal complaint against Mr. Shapiro for violating Penal Code section 403; and WHEREAS, the District Attorney, exercised its independent discretion and filed an amended criminal complaint against Mr. Shapiro that alleged one misdemeanor count of violating Penal Code section 403 and three misdemeanor counts (two to four) of violating Carlsbad WHEREAS, CMC section 1.20.330(b) states that a violation of this section is a misdemeanor; and WHEREAS, Mr. Shapiro was arraigned on the amended four count criminal complaint; and WHEREAS, the District Attorney subsequently exercised its discretion and dismissed the first count (P.C. § 403) of the amended criminal complaint and reduced the three CMC section 1.20.330(b) misdemeanor counts to infractions; and WHEREAS, the District Attorney stated that notwithstanding the language of 1.20.330(b) (a violation of this section is a misdemeanor), CMC section 1.08.010(a) (which was amended in 2007) takes precedence over section 1.20.330(b) thereby making the first three violations of section 1.20.330, within a 12-month period, infractions and only on the fourth and subsequent violations, would the violation be charged as a misdemeanor; and WHEREAS, Mr. Shapiro's criminal case generated interest by the American Civil Liberties Union (ACLU); and 21 WHEREAS, the ACLU sent a letter to the District Attorney alleging that CMC sections 1.20.320 and 1.20.330 (enacted in 1979) are vague and unenforceable; and WHEREAS, the District Attorney stated that it has a policy of not prosecuting infractions due to limited resources and therefore, the District Attorney exercised its discretion and dismissed the three CMC infractions; and WHEREAS, notwithstanding the arguments of the ACLU or Mr. Shapiro, the City wants to ensure that its decorum sections are constitutional, enforceable, and void of any confusion 26 whether a violation constitutes a misdemeanor or an infraction; and 27 THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows: 28 EXHIBIT 1 1 SECTION 1: That Chapter 1.20 of the Carlsbad Municipal Code is amended to read as follows: 2 3 4 6 7 8 9 and renumbered to read as follows: 10 11 12 13 presented by the group spokesperson. 14 15 16 17 27 1.20.300 - Purpose and Intent - Addressing the council. 1.20.302 - Addressing the council—Spokesperson for group of persons. 1.20.305 - Opportunity for public to address the council—Nonagenda items. 1.20.310 - Decorum and order—Council and city staff. 1.20.320 - Public attendance and Audience - Decorum and order. 1.20.330 - Enforcement of decorum. SECTION 2: That section 1.20.300 of Chapter 1.20 of the Carlsbad Municipal Code is amended 1.20.302 - Addressing the council - Spokesperson for group of persons. (a) In order to expedite matters and to avoid repetitious presentations, whenever any group of persons wishes to address the council on the same subject matter, it shall be proper for the presiding officer to require that a spokesperson be chosen from the group to address the council. If additional matters are to be presented by any other members of the group, the presiding officer may limit the number of such persons and limit the presentation to information not already (b) For items other than those listed on the agenda for public hearing, groups of persons shall be limited to a total presentation period often minutes. The presiding officer shall first call for representatives of groups in favor of the matter under consideration and then for those persons in opposition to the matter under consideration, and thereafter shall allow a rebuttal time limited to five minutes to the proponents who shall confine rebuttal remarks to answering comments made in opposition and not the introduction of new testimony. Further time may be granted by majority vote of the council.18 19 SECTION 3: That Chapter 1.20 of the Carlsbad Municipal Code is amended to add section 20 1.20.300 to read as follows: 21 1.20.300 - Purpose and Intent - Addressing the council. 22 Our society has long recognized that it is important for citizens of any community to have the ability to address their elected officials. To that end, the City of Carlsbad has enacted decorum ordinances to facilitate such activities at council meetings. These ordinances are designed to allow for public input but retain the recognition that City business and the needs of all the people necessarily require some limitations. Clearly, the more orderly a meeting, the more time members of the council will have to adequately consider and address any issues raised. Dissent at public meetings is also a recognized concept in a free society. It is one of the ways in which concerns about pending issues can be expressed, and without which the nature or extent of those concerns might result in less than informed decisions. But it is equally important to recognize that dissent is not without limitations. If anyone who wished to move a public meeting 28 1 2 3 4 5 the speaker's actions. 6 7 8 9 10 11 12 13 14 1.20.320 - Public attendance and Audience - Decorum and order. 21 22 23 24 25 26 27 28 EXHIBIT 1 toward a particular position could disrupt the proceedings whenever they felt moved to do so, the rights of all others and the business of a city would soon stagnate and the actions themselves would tend to imperil the very freedoms we all seek. It is therefore important to remember that no one has a constitutional right to disrupt a public meeting by attempting to impose their own voice or actions in a manner that is loud, boisterous, or unruly where such conduct is substantially disruptive of the meeting itself, not in compliance with the rules set forth for the governance of the such meetings, and continues after the mayor has requested the person or persons to stop. The issue in such cases is not about the content of speech, unless the content itself violates the law, but rather with the extent of disruption caused to the meeting itself by the manner and conduct of SECTION 4: That section 1.20.310 of Chapter 1.20 of the Carlsbad Municipal Code is amended to read as follows: 1.20.310 - Decorum and order - Council and city staff. While the council is in session, the council members and city staff shall observe good order and decorum and shall not by conversation or otherwise, improperly delay or interrupt the proceedings nor refuse to obey the directives of the mayor as authorized under this chapter. SECTION 5: That section 1.20.320 of Chapter 1.20 of the Carlsbad Municipal Code is amended to read as follows: Members of the public attending council meetings shall observe the same rules of order Dorum applicable to the city council and staff. Any person wishing to address the counci responsible for familiarizing himself/herself with the rules and ordinances applicable to council meetings. Copies c the City's website. 15 and decorum applicable to the city council and staff. Any person wishing to address the council is 16 meetings. Copies of those requirements are available on file in the Office of the City Clerk and on 17 SECTION 6: That section 1.20.330 of Chapter 1.20 of the Carlsbad Municipal Code is amended 18 to read as follows: 19 1.20.330 - Enforcement of decorum. 20 (a) The chief of police or such member of the police department as he, or his authorized agent, may designate shall be sergeant-at-arms of the city council and said person shall attend meetings at the request of the mayor, the city manager, or a majority of the city council. He shall be available to respond to all meetings immediately upon call. He shall carry out all orders authorized under this chapter that are given by the mayor for the purpose of maintaining order and decorum at the council meetings. The sergeant-at-arms may, at any time, request assistance from other members of the police department to accomplish that purpose. Any council member may move to require the mayor to enforce the rules and the affirmative vote of a majority of the council members present shall require him to do so. (b) Any person, including any member of the council or city staff, who by voice or conduct engages in loud, boisterous, or unruly behavior that substantially disrupts a council meeting, that does not comply with the rules of set forth in this chapter for governance of such meeting, and continues after the mayor has requested such person(s) to stop, is engaging in unlawful conduct and, except as set forth in subsections (c) and (d) of this section, shall constitute an infraction. 1 2 3 4 SECTION 7: That section 1.08.010 of Chapter 1.08 of the Carlsbad Municipal Code is amended 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 25 26 27 28 EXHIBIT 1 (c) Any person arrested under subsection (b) of this section and who thereafter returns to the same meeting and again violates the provisions of subsection (b) of this section, commits a misdemeanor. (d) Any person previously convicted under subsection (b) of this section, who again violates the provisions of subsection (b) of this section, commits a misdemeanor. to read as follows: 1.08.010-Designated. (a) Whenever in Chapters 6.03, 8.16, 8.44, 8.50, 11.28 and 15.12, or as specified in Sections 1.13.040, 1.20.330(c), 1.20.330(d), 5.10.130, 6.04.130, 8.17.200(A)(1), 8.17.200(A)(2), 8.17.200(A)(3), 8.17.200(A)(4) and 17.04.070 of this code any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment unless some other fine or penalty is stated in said chapter or section. (b) Except as provided in subsection (a) of this section, whenever in this code or in any other ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision of the city is, unless otherwise stated in this section, an infraction and shall be punishable by: (1) A fine not exceeding two hundred dollars for the first violation; (2) A fine not exceeding two hundred and fifty dollars for a second violation of the same ordinance within one year; (3) The third and each additional violation of the same ordinance within one year is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment; (4) In addition to the monetary fines set forth above, both conditional sentencing and probation are authorized as a sentencing option in accordance with Penal Code Section 1203(a). (c) Each and every day during any portion of which any violation of this code or any other ordinance of the city is committed, continued or permitted shall be a separate offense. (d) Payment of a fine shall not excuse payment of any fee required by this code or any other city ordinance. (e) Nothing contained in this section shall preclude the city from enforcing the provisions of this code or any other ordinance through any other available methods including but not limited to abatement of public nuisances. (f) Nothing contained in this code shall abrogate the city attorney's discretion to reduce to an infraction any act made unlawful pursuant to this Chapter, if the city attorney determines such a reduction is warranted in the interest of justice. 23 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption and the City Clerk shall certify the adoption of this ordinance and cause it to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 1 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 12th day of July, 2011, and thereafter. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of , 2011, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attorney MATT HALL, Mayor ATTEST: LORRAINE M. WOOD, City Clerk (SEAL) EXHIBIT 2 CARLSBAD MUNICIPAL CODE - CHAPTER 1.20 1.20.300 - Purpose and Intent - Addressing the council. 1.20.300 1.20.302 - Addressing the council—Spokesman for group of persons. 1.20.305 - Opportunity for public to address the council—Nonagenda items. 1.20.310 - Decorum and order—Council and city staff. 1.20.320 - Decorum and order—Audience. 1.20.330 - Enforcement of decorum. 1.20.300 - Purpose and Intent - Addressing the council. Our society has long recognized that it is important for citizens of any community to have the ability to address their elected officials. To that end, the Citv of Carlsbad has enacted decorum ordinances to facilitate such activities at council meetings. These ordinances are designed to allow for public input but retain the recognition that Citv business and the needs of all the people necessarily require some limitations. Clearly, the more orderly a meeting, the more time members of the council will have to adequately consider and address anv issues raised. Dissent at public meetings is also a recognized concept in a free society. It is one of the ways in which concerns about pending issues can be expressed, and without which the nature or extent of those concerns might result in less than informed decisions. But it is equally important to recognize that dissent is not without limitations. If anyone who wished to move a public meeting toward a particular position could disrupt the proceedings whenever they felt moved to do so. the rights of all others and the business of a city would soon stagnate and the actions themselves would tend to imperil the very freedoms we all seek. It is therefore important to remember that no one has a constitutional right to disrupt a public meeting bv attempting to impose their own voice or actions in a manner that is loud, boisterous, or unruly where such conduct is substantially disruptive of the meeting itself, not in compliance with the rules set forth for the governance of the such meetings, and continues after the mayor has reguested the person or persons to stop. The issue in such cases is not about the content of speech, unless the content itself violates the law, but rather with the extent of disruption caused to the meeting itself bv the manner and conduct of the speaker's actions. 1.20.300 1.20.302 - Addressing the council—Spokesman for group of persons. (a) In order to expedite matters and to avoid repetitious presentations, whenever any group of persons wishes to address the council on the same subject matter, it shall be proper for the presiding officer to require that a spokesman be chosen from the group to address the council. If additional matters are to be presented by any other members of the group, the presiding EXHIBIT 2 officer may limit the number of such persons and limit the presentation to information not already presented by the group spokesman. (b) For items other than those listed on the agenda for public hearing, groups of persons shall be limited to a total presentation period of ten minutes. The presiding officer shall first call for representatives of groups in favor of the matter under consideration and then for those persons in opposition to the matter under consideration, and thereafter shall allow a rebuttal time limited to five minutes to the proponents who shall confine rebuttal remarks to answering comments made in opposition and not the introduction of new testimony. Further time may be granted by majority vote of the council. 1.20.310 - Decorum and order - Council and city staff. While the council is in session, the council members and city staff shall observe good order and decorum. A momber and shall not, neither, by conversation or otherwise, improperly delay or interrupt the proceedings or the poaco of the council, nor disturb any mombor whilo speaking, nor refuse to obey the directives of the presiding officer mavor as authorized under this chapter. 1.20.320 - Public attendance and Audience - Decorum and order—Audience. Members of the public attending council meetings shall observe the same rules of order and decorum applicable to the city council and staff. Any person wishing to address the council is responsible for familiarizing himself/herself with the rules and ordinances applicable to council meetings. Copies of those requirements are available on file in the Office of the City Clerk and on the City's website. Any person making impertinent and slanderous remarks or who becomes boisterous while addressing the council or while attending the council meeting shall be removed from the room if the sergeant-at-arms is so directed by tho presiding officer, and such porson may bo barred from further audionco before the council. Unauthorized remarks from the audience, stamping of feet, whistles, yells, and similar demonstrations shall not be permitted by tho presiding officer, and if such conduct continues, he shall direct the sergeant at-arms to remove such offenders from the room. 1.20.330 - Enforcement of decorum. (a) The chief of police or such member of the police department as he. or his authorized agent may designate shall be sergeant-at-arms of the city council and said person he shall attend meetings at the request of the presiding officer mayor, the city manager, or a majority of the citv council. He shall be available to respond to all meetings immediately upon call. He shall carry out all orders authorized under this chapter that are given by the presiding officer mayor or city council for the purpose of maintaining order and decorum at the council meetings. The sergeant-at-arms mav. at anv time, reguest assistance from other members of the police department to accomplish that purpose. Any council EXHIBIT 2 member may move to require the presiding officer mayor to enforce the rules and the affirmative vote of a majority of the council members present shall require him to do so. (b) Anv person, including any member of the council or city staff, who bv voice or conduct engages in other person using vulgar, profane, loud. Q^boisterous. or unruly behavior that substantially disrupts a council meeting, that does not comply with the rules of set forth in this chapter for governance of such meeting, and continues after the mavor has requested such person(s) to stop, is engaging in unlawful conduct and, except as set forth in subsections (c) and (d) of this section, shall constitute an infraction, language at anv meeting or otherwise interrupting the proceedings of the council, or who refuses to carry out orders and instructions given by the presiding officer for the purpose of maintaining order and decorum at the council meeting, or who interrupts proceedings, shall upon conviction bo deemed guilty of a misdemoanor. (c) Upon instructions of the presiding officer, it shall be the duty of the sergeant- at arms, or any of thorn present, to place any porson who violates tho order and docorum of tho mooting under arrost. Anv person arrested under subsection (b) of this section and who thereafter returns to the same meeting and again violates the provisions of subsection (b) of this section, commits a misdemeanor. fell Anv person previously convicted under subsection (b) of this section, who again violates the provisions of subsection (b) of this section, commits a misdemeanor. CARLSBAD MUNICIPAL CODE - CHAPTER 1.08 1.08.010-Designated. (a) Whenever in Chapters 6.03, £42^-8.16, 8.44, 8.50, 11.28 and 15.12, or as specified in Sections 1.13.040, 1.20.330(c). 1.20.330(dl 5.10.130. 6.04.130, 8.17.200(A)(1), 8.17.200(A)(2), 8.17.200(A)(3), 8.17.200(A)(4) and 17.04.070 of this code any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment unless some other fine or penalty is stated in said chapter or section. (b) Except as provided in subsection (a) of this section, whenever in this code or in any other ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision of the city is, unless otherwise stated in this section, an infraction and shall be punishable by: (1) A fine not exceeding ene two hundred dollars for the first violation; (2) A fine not exceeding two hundred and fifty dollars for a second violation of the EXHIBIT 2 same ordinance within one year; (3) A fino not exceeding fivo hundred dollars for a third violation of the same ordinance within one year. The third fourth and each additional violation of the same ordinance within one year is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment; (4) In addition to the monetary fines set forth above, both conditional sentencing and probation are authorized as a sentencing option in accordance with Penal Code Section 1203(a). (c) Each and every day during any portion of which any violation of this code or any other ordinance of the city is committed, continued or permitted shall be a separate offense. (d) Payment of a fine shall not excuse payment of any fee required by this code or any other city ordinance. (e) Nothing contained in this section shall preclude the city from enforcing the provisions of this code or any other ordinance through any other available methods including but not limited to abatement of public nuisances. (f) Nothing contained in this code shall abrogate the city attorney's discretion to reduce to an infraction any act made unlawful pursuant to this Chapter, if the city attorney determines such a reduction is warranted in the interest of Justice. . It CITY OF CARLSBAD FOR THE INFORMATION OF THE CITY COUNCIL •i |u DATE CITY ATTORNEY July 12, 2011 To: MAYOR AND CITY COUNCIL From: CITY ATTORNEY Re: CITY COUNCIL AGENDA ITEM #11- AMENDMENT TO CHAPTER 1.20 Attached to this memorandum, please find a revised clean copy and redlined copy of this proposed ordinance for introduction. We have revised it to eliminate the word "spokesman" and substitute in its place the word "spokesperson". As to the question of whether or not a second violation of section 1.20.330(b) is a misdemeanor depends on when it occurs. If it occurs in the very same meeting, it is then a misdemeanor. If it occurs in a subsequent meeting, the person must have previously been convicted of a violation of subsection (b) in order for it to be a misdemeanor. Should you have any questions regarding the above, please do not hesitate to contact me. RONALD R. BALL City Attorney /rn c: »Gity Clerk City Manager Police Chief Assistant City Attorney Edmonson City Attorney 1200 Carlsbad Village Drive I Carlsbad, CA 92008 I 760-434-2891 I 760-434-8367 fax I www.carlsbadca.gov 1 2 3 4 5 6 7 8 g 10 11 13 14 15 16 17 18 19 20 22 23 24 25 26 EXHIBIT 1 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CHAPTER 1.20 OF THE CARLSBAD MUNICIPAL CODE, SECTIONS 1.20.310, 1.20.320 AND 1.20.330 AND ADDING SECTION 1.20.315 TO THE CARLSBAD MUNICIPAL CODE ALL RELATING TO DECORUM AND ENFORCEMENT OF DECORUM AND AMENDING SECTION 1.08.010 OF CHAPTER 1.08 OF THE CARLSBAD MUNICIPAL CODE RELATED TO DESIGNATED PENALITIES WHEREAS, On August 24, 2010 Richard Shapiro was arrested pursuant to California Penal Code section 403 for disturbing an open and public City Council meeting; and WHEREAS, the District Attorney initially filed a single count criminal complaint against Mr. Shapiro for violating Penal Code section 403; and WHEREAS, the District Attorney, exercised its independent discretion and filed an amended criminal complaint against Mr. Shapiro that alleged one misdemeanor count of violating Penal Code section 403 and three misdemeanor counts (two to four) of violating Carlsbad Municipal Code (CMC) section 1.20.330(b); and 12 WHEREAS, CMC section 1.20.330(b) states that a violation of this section is a misdemeanor; and WHEREAS, Mr. Shapiro was arraigned on the amended four count criminal complaint; and . WHEREAS, the District Attorney subsequently exercised its discretion and dismissed the first count (P.C. § 403) of the amended criminal complaint and reduced the three CMC section 1.20.330(b) misdemeanor counts to infractions; and WHEREAS, the District Attorney stated that notwithstanding the language of 1.20.330(b) (a violation of this section is a misdemeanor), CMC section 1.08.010(a) (which was amended in 2007) takes precedence over section 1.20.330(b) thereby making the first three violations of section 1.20.330, within a 12-month period, infractions and only on the fourth and subsequent violations, would the violation be charged as a misdemeanor; and WHEREAS, Mr. Shapiro's criminal case generated interest by the American Civil Liberties Union (ACLU); and 21 WHEREAS, the ACLU sent a letter to the District Attorney alleging that CMC sections 1.20.320 and 1.20.330 (enacted in 1979) are vague and unenforceable; and WHEREAS, the District Attorney stated that it has a policy of not prosecuting infractions due to limited resources and therefore, the District Attorney exercised its discretion and dismissed the three CMC infractions; and WHEREAS, notwithstanding the arguments of the ACLU or Mr. Shapiro, the City wants to ensure that its decorum sections are constitutional, enforceable, and void of any confusion whether a violation constitutes a misdemeanor or an infraction; and 27 THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows: 28 1 2 3 4 1.20.305 - Opportunity for public to address the council—Nonagenda items.5 1.20.310 - Decorum and order—Council and city staff. 6 7 8 9 and renumbered to read as follows: 10 11 12 13 presented by the group spokesperson. 14 15 16 17 22 23 24 27 EXHIBIT 1 SECTION 1: That Chapter 1.20 of the Carlsbad Municipal Code is amended to read as follows: 1.20.300 - Purpose and Intent - Addressing the council. 1.20.302 - Addressing the council—Spokesperson for group of persons. 1.20.320 - Public attendance and Audience - Decorum and order. 1.20.330 - Enforcement of decorum. SECTION 2: That section 1.20.300 of Chapter 1.20 of the Carlsbad Municipal Code is amended 1.20.302 - Addressing the council - Spokesperson for group of persons. (a) In order to expedite matters and to avoid repetitious presentations, whenever any group of persons wishes to address the council on the same subject matter, it shall be proper for the presiding officer to require that a spokesperson be chosen from the group to address the council. If additional matters are to be presented by any other members of the group, the presiding officer may limit the number of such persons and limit the presentation to information not already (b) For items other than those listed on the agenda for public hearing, groups of persons shall be limited to a total presentation period of ten minutes. The presiding officer shall first call for representatives of groups in favor of the matter under consideration and then for those persons in opposition to the matter under consideration, and thereafter shall allow a rebuttal time limited to five minutes to the proponents who shall confine rebuttal remarks to answering comments made in opposition and not the introduction of new testimony. Further time may be granted by majority vote of the council. 18 19 SECTION 3: That Chapter 1.20 of the Carlsbad Municipal Code is amended to add section 20 1.20.300 to read as follows: 21 1.20.300 - Purpose and Intent - Addressing the council. Our society has long recognized that it is important for citizens of any community to have the ability to address their elected officials. To that end, the City of Carlsbad has enacted decorum ordinances to facilitate such activities at council meetings. These ordinances are designed to allow for public input but retain the recognition that City business and the needs of all the people necessarily require some limitations. Clearly, the more orderly a meeting, the more time members of the council will have to adequately consider and address any issues raised. Dissent at public meetings is also a recognized concept in a free society. It is one of the ways inoc which concerns about pending issues can be expressed, and without which the nature or extent of those concerns might result in less than informed decisions. But it is equally important to recognize that dissent is not without limitations. If anyone who wished to move a public meeting 28 1 2 3 4 5 the speaker's actions. 6 7 8 9 10 11 12 13 1.20.320 - Public attendance and Audience - Decorum and order. 21 22 23 24 25 26 27 28 EXHIBIT 1 toward a particular position could disrupt the proceedings whenever they felt moved to do so, the rights of all others and the business of a city would soon stagnate and the actions themselves would tend to imperil the very freedoms we all seek. It is therefore important to remember that no one has a constitutional right to disrupt a public meeting by attempting to impose their own voice or actions in a manner that is loud, boisterous, or unruly where such conduct is substantially disruptive of the meeting itself, not in compliance with the rules set forth for the governance of the such meetings, and continues after the mayor has requested the person or persons to stop. The issue in such cases is not about the content of speech, unless the content itself violates the law, but rather with the extent of disruption caused to the meeting itself by the manner and conduct of SECTION 4: That section 1.20.310 of Chapter 1.20 of the Carlsbad Municipal Code is amended to read as follows: 1.20.310 - Decorum and order - Council and city staff. While the council is in session, the council members and city staff shall observe good order and decorum and shall not by conversation or otherwise, improperly delay or interrupt the proceedings nor refuse to obey the directives of the mayor as authorized under this chapter. SECTION 5: That section 1.20.320 of Chapter 1.20 of the Carlsbad Municipal Code is amended to read as follows: Members of the public attending council meetings shall observe the same rules of order :orum applicable to the city council and staff. Any person wishing to address the counci responsible for familiarizing himself/herself with the rules and ordinances applicable to council meetings. Copies c the City's website. 15 and decorum applicable to the city council and staff. Any person wishing to address the council is 16 meetings. Copies of those requirements are available on file in the Office of the City Clerk and on 17 SECTION 6: That section 1.20.330 of Chapter 1.20 of the Carlsbad Municipal Code is amended 18 to read as follows: 19 1.20.330 - Enforcement of decorum. 20 (a) The chief of police or such member of the police department as he, or his authorized agent, may designate shall be sergeant-at-arms of the city council and said person shall attend meetings at the request of the mayor, the city manager, or a majority of the city council. He shall be available to respond to all meetings immediately upon call. He shall carry out all orders authorized under this chapter that are given by the mayor for the purpose of maintaining order and decorum at the council meetings. The sergeant-at-arms may, at any time, request assistance from other members of the police department to accomplish that purpose. Any council member may move to require the mayor to enforce the rules and the affirmative vote of a majority of the council members present shall require him to do so. (b) Any person, including any member of the council or city staff, who by voice or conduct engages in loud, boisterous, or unruly behavior that substantially disrupts a council meeting, that does not comply with the rules of set forth in this chapter for governance of such meeting, and continues after the mayor has requested such person(s) to stop, is engaging in unlawful conduct and, except as set forth in subsections (c) and (d) of this section, shall constitute an infraction. 1 2 3 4 SECTION 7: That section 1.08.010 of Chapter 1.08 of the Carlsbad Municipal Code is amended to read as follows: 6 7 8 g 10 11 12 13 14 15 16 17 18 19 20 21 22 25 26 27 28 EXHIBIT 1 (c) Any person arrested under subsection (b) of this section and who thereafter returns to the same meeting and again violates the provisions of subsection (b) of this section, commits a misdemeanor. (d) Any person previously convicted under subsection (b) of this section, who again violates the provisions of subsection (b) of this section, commits a misdemeanor. 1.08.010-Designated. (a) Whenever in Chapters 6.03, 8.16, 8.44, 8.50, 11.28 and 15.12, or as specified in Sections 1.13.040, 1.20.330(c), 1.20.330(d), 5.10.130, 6.04.130, 8.17.200(A)(1), 8.17.200(A)(2), 8.17.200(A)(3), 8.17.200(A)(4) and 17.04.070 of this code any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment unless some other fine or penalty is stated in said chapter or section. (b) Except as provided in subsection (a) of this section, whenever in this code or in any other ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision of the city is, unless otherwise stated in this section, an infraction and shall be punishable by: (1) A fine not exceeding two hundred dollars for the first violation; (2) A fine not exceeding two hundred and fifty dollars for a second violation of the same ordinance within one year; (3) The third and each additional violation of the same ordinance within one year is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment; (4) In addition to the monetary fines set forth above, both conditional sentencing and probation are authorized as a sentencing option in accordance with Penal Code Section 1203(a). (c) Each and every day during any portion of which any violation of this code or any other ordinance of the city is committed, continued or permitted shall be a separate offense. (d) Payment of a fine shall not excuse payment of any fee required by this code or any other city ordinance. (e) Nothing contained in this section shall preclude the city from enforcing the provisions of this code or any other ordinance through any other available methods including but not limited to abatement of public nuisances. (f) Nothing contained in this code shall abrogate the city attorney's discretion to reduce to an infraction any act made unlawful pursuant to this Chapter, if the city attorney determines such a reduction is warranted in the interest of justice. 23 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption and the City Clerk shall certify the adoption of this ordinance and cause it to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. 1 2 3 4 5 6 7 8 9 13 10 RONALD R. BALL, City Attorney 11 12 EXHIBIT 1 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the day of , 2011, and thereafter. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the day of , 2011, by the following vote, to with: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY ATTEST: MATT HALL, Mayor 14 LORRAINE M. WOOD, City Clerk 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 2 CARLSBAD MUNICIPAL CODE - CHAPTER 1.20 1.20.300 - Purpose and Intent - Addressing the council. 1.20.300 1.20.302 - Addressing the council—Spokesperson for group of persons. 1.20.305 - Opportunity for public to address the council—Nonagenda items. 1.20.310 - Decorum and order—Council and city staff. 1.20.320 - Decorum and order—Audience. 1.20.330 - Enforcement of decorum. 1.20.300 - Purpose and Intent - Addressing the council. Our society has long recognized that it is important for citizens of any community to have the ability to address their elected officials. To that end, the Citv of Carlsbad has enacted decorum ordinances to facilitate such activities at council meetings. These ordinances are designed to allow for public input but retain the recognition that Citv business and the needs of all the people necessarily require some limitations. Clearly, the more orderly a meeting, the more time members of the council will have to adequately consider and address anv issues raised. Dissent at public meetings is also a recognized concept in a free society. It is one of the ways in which concerns about pending issues can be expressed, and without which the nature or extent of those concerns might result in less than informed decisions. But it is equally important to recognize that dissent is not without limitations. If anyone who wished to move a public meeting toward a particular position could disrupt the proceedings whenever they felt moved to do so. the rights of all others and the business of a citv would soon stagnate and the actions themselves would tend to imperil the very freedoms we all seek. It is therefore important to remember that no one has a constitutional right to disrupt a public meeting bv attempting to impose their own voice or actions in a manner that is loud, boisterous, or unruly where such conduct is substantially disruptive of the meeting itself, not in compliance with the rules set forth for the governance of the such meetings, and continues after the mayor has reguested the person or persons to stop. The issue in such cases is not about the content of speech, unless the content itself violates the law, but rather with the extent of disruption caused to the meeting itself by the manner and conduct of the speaker's actions. 1.20.300 1.20.302 - Addressing the council—Spokesperson for group of persons. (a) In order to expedite matters and to avoid repetitious presentations, whenever any group of persons wishes to address the council on the same subject matter, it shall be proper for the presiding officer to require that a spokesperson be chosen from the group to address the council. If additional matters are to be presented by any other members of the group, the presiding EXHIBIT 2 officer may limit the number of such persons and limit the presentation to information not already presented by the group spokesperson. (b) For items other than those listed on the agenda for public hearing, groups of persons shall be limited to a total presentation period of ten minutes. The presiding officer shall first call for representatives of groups in favor of the matter under consideration and then for those persons in opposition to the matter under consideration, and thereafter shall allow a rebuttal time limited to five minutes to the proponents who shall confine rebuttal remarks to answering comments made in opposition and not the introduction of new testimony. Further.time may be granted by majority vote of the council. 1.20.310 - Decorum and order - Council and city staff. While the council is in session, the council members and city staff shall observe good order and decorum. A member and shall not, neither, by conversation or otherwise, improperly delay or interrupt the proceedings or the poace of the council, nor disturb any member while speaking, nor refuse to obey the directives of the presiding officer mayor as authorized under this chapter. 1.20.320 - Public attendance and Audience - Decorum and order—Audience. Members of the public attending council meetings shall observe the same rules of order and decorum applicable to the city council and staff. Any person wishing to address the council is responsible for familiarizing himself/herself with the rules and ordinances applicable to council meetings. Copies of those requirements are available on file in the Office of the City Clerk and on the City's website. Anv person making importinont and slanderous romarks or who bocomos boistorous whilo addressing tho council or while attending the council meeting shall be removed from the room if the sergeant-at-arms is so directed by the presiding officer, and such person may bo barred from further audience before the council. Unauthorized remarks from the audience, stamping of feet, whistles, yells, and similar demonstrations shall not bo permitted by tho presiding officer, and if such conduct continues, he shall direct the sorgeant-at-arms to romovo such offenders from the room. 1.20.330 - Enforcement of decorum. (a) The chief of police or such member of the police department as he. or his authorized aaent may designate shall be sergeant-at-arms of the city council and said person be shall attend meetings at the request of the presiding officer mayor, the city manager, or a majority of the citv council. He shall be available to respond to all meetings immediately upon call. He shall carry out all orders authorized under this chapter that are given by the presiding officer mayor or city council for the purpose of maintaining order and decorum at the council meetings. The seraeant-at-arms mav. at any time, request assistance from other members of the police department to accomplish that purpose. Any council EXHIBIT 2 member may move to require the presiding officor-mayor to enforce the rules and the affirmative vote of a majority of the council members present shall require him to do so. (b) Any person, including anv member of the council or citv staff, who by voice or conduct engages in other person using vulgar, profane, loud. Qf-boisterous. or unruly behavior that substantially disrupts a council meeting, that does not comply with the rules of set forth in this chapter for governance of such meeting, and continues after the mayor has requested such person(s) to stop, is engaging in unlawful conduct and, except as set forth in subsections (c) and (d) of this section, shall constitute an infraction, language at anv meeting or otherwise interrupting the proceedings of the council, or who refuses to carry out orders and instructions given by the presiding officer for the purpose of maintaining ordor and decorum at the council meeting, or who interrupts proceedings, shall upon conviction bo deemed guilty of a misdemeanor. (c) Upon instructions of tho presiding officer, it chall bo tho duty of tho sergoant- at-arms, or any of them present, to place any person who violates the order and docorum of the meeting under arrest. Anv person arrested under subsection (b) of this section and who thereafter returns to the same meeting and again violates the provisions of subsection (b) of this section, commits a misdemeanor. (ch Anv person previously convicted under subsection (b) of this section, who again violates the provisions of subsection (b) of this section, commits a misdemeanor. CARLSBAD MUNICIPAL CODE - CHAPTER 1.08 1.08.010- Designated. (a) Whenever in Chapters 6.03, 8742^-8.16, 8.44,8.50, 11.28 and 15.12, or as specified in Sections 1.13.040, 1.20.330(ci. 1.2Q.330(d). 5.10.130. 6.04.130, 8.17.200(A)(1), 8.17.200(A)(2), 8.17.200(A)(3), 8.17.200(A)(4) and 17.04.070 of this code any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment unless some other fine or penalty is stated in said chapter or section. (b) Except as provided in subsection (a) of this section, whenever in this code or in any other ordinance of the city any act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do any act is declared to be unlawful or a misdemeanor, the violation of any such provision of the city is, unless otherwise stated in this section, an infraction and shall be punishable by: (1) A fine not exceeding ewe two hundred dollars for the first violation; (2) A fine not exceeding two hundred and fifty dollars for a second violation of the EXHIBIT 2 same ordinance within one year; (3) A fino not oxcooding five hundred dollars for a third violation of tho same ordinance within ono yoar. The third fourth and each additional violation of the same ordinance within one year is a misdemeanor and shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both such fine and imprisonment; (4) In addition to the monetary fines set forth above, both conditional sentencing and probation are authorized as a sentencing option in accordance with Penal Code Section 1203(a). (c) Each and every day during any portion of which any violation of this code or any other ordinance of the city is committed, continued or permitted shall be a separate offense. (d) Payment of a fine shall not excuse payment of any fee required by this code or any other city ordinance. (e) Nothing contained in this section shall preclude the city from enforcing the provisions of this code or any other ordinance through any other available methods including but not limited to abatement of public nuisances. (f) Nothing contained in this code shall abrogate the city attorney's discretion to reduce to an infraction any act made unlawful pursuant to this Chapter, if the city attorney determines such a reduction is warranted in the interest of justice.