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HomeMy WebLinkAbout2021-10-12; City Council; CS-405; AN ORDINANCE AMENDING TITLE 8 OF THE CARLSBAD MUNICIPAL CODE BY AMENDING CHAPTER 8.36 AND SECTIONS 8.28.050 AND 8.44.040 AND BY ADDING CHAPTERS 8.34 AND 8.38 TO ADDRESS QUALITY OF LIFE CONCERNSORDINANCE NO. CS-405 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 8 OF THE CARLSBAD MUNICIPAL CODE BY AMENDING CHAPTER 8.36 AND SECTIONS 8.28.050 AND 8.44.040 AND BY ADDING CHAPTERS 8.34 AND 8.38 TO ADDRESS QUALITY OF LIFE CONCERNS EXHIBIT 1 WHEREAS, the purpose of the foregoing proposed amended and new provisions is to address increasing health, safety, and environmental concerns with unlawful encampments and storage of persona I property, unauthorized fires on public property, obstruction of public property and trespass on private property open to the patronage of the public, disorderly conduct, open containers and consumption of alcohol in public, and solicitation; and WHEREAS, the Ninth Circuit Court of Appeals held in Martin v. City of Boise that an ordinance violates the cruel and unusual punishment clause of the Eighth Amendment if it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, when no alternative shelter is available to them; and WHEREAS, the holding in Martin v. City of Boise is narrow in that it does not permit individuals to sit, lie, or sleep on the streets at any time or at any place; nor does it prohibit cities from regulating camping and storage of personal property. Rather, the court found that even if shelter is unavailable, an ordinance may constitutionally prohibit sitting, lying, or sleeping outside at particular times or in ' particular locations, and an ordinance could bar the obstruction of public rights of way or the erection of certain structures; and WHEREAS, the city has an interest in balancing the needs of all city residents, businesses and visitors for clean, healthy, and safe public areas; and WHEREAS, the city also has an interest in protecting its economic viability and preventing blight in publicly accessible areas, especially those near residential neighborhoods; and WHEREAS, the proposed ordi na nee package would further the purpose of Title 8, of the Carlsbad Municipal Code, which is designed to protect public peace, morals, and safety, while at the same time fit within the limitations set forth in Martin v. City of Boise and other applicable federal and state authorities; and Oct. 12, 2021 Item #6 Page 3 of 14 WHEREAS, as to proposed Chapter 8.34 entitled "Solicitation," this chapter is further intended to protect the compelling interest of public safety as against certain abusive conduct of persons engaged in solicitation, by imposing reasonable time, manner, and place restrictions on solicitation while respecting the constitutional rights of free speech for all citizens; and WHEREAS, existing ordinances under Title 8 of the Carlsbad Municipal Code do not adequately address the escalating health,. safety, and environmental concerns and increased calls for service associated with unauthorized encampments, storage of personal property in public, unauthorized fires on public property, obstruction and trespass of public and private property open to the patronage of the public, disorderly conduct, possession and consumption of open alcohol containers in public, and solicitation; and WHEREAS, these amendments and additions to the Carlsbad Municipal Code are intended to regulate unlawful, repeated, and compounding conduct that negatively impacts community members' quality of life, health, and/or safety. NOW, THEREFORE, the City Council of the City of Carlsbad, California, does ordain as follows: Section 1. Section 2. follows: The above recitations are true and correct. That Chapter 8.36 of the Carlsbad Municipal Code is amended to read as Chapter 8.36 UNLAWFUL CAMPING, FIRES ON PUBLIC PROPERTY, AND STORAGE OF PROPERTY Sections: 8.36.010 8.36.020 8.36.030 8.36.040 8.36.050 8.36.060 Purpose. Definitions. Unlawful camping. Fires and cooking on public property. Storage of personal property in public places. Severability. Oct. 12, 2021 Item #6 Page 4 of 14 8.36.010 Purpose. Public places within the city should be readily accessible to residents and the public at large. The use of public places for camping can interfere with the rights of others to use these places for the purposes for which they were intended. Camping in these places can also endanger the public health and the environment when camping~related waste and human waste are disposed of improperly, particularly in environmentally sensitive areas, such as native habitat, open spaces and watercourses. Human presence in open spaces, other than on designated trails, can also increase the risk of wildfire danger and possible injuries to and from threatened wildlife. Additionally, camping on private outdoor property without permission of the owner or lessee interferes with the owner or lessee's property rights and desire to utilize the private outdoor property for lawful and authorized purposes. The purpose of this chapter is to maintain public places and private outdoor property within the city in a clean and accessible condition and to protect the public health, safety, and environment by ensuring that camping occurs only in those designated areas where appropriate provisions have been made for handling camping-related waste, food preparation, and fires .. 8.36.020 Definitions.· As used in this chapter: "Beach" means those areas as defined in Carlsbad Municipal Code Section 11.32.020. "~amp" means to use camping implements in an outdoor area or to erect or occupy a camp facility for living accommodations purposes such as sleeping activities, preparations to sleep (including the laying down of bedding for the purpose of sleeping), storing personal property, or making a camp fire. These activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants in these activities are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. Camping does not include picnicking, sitting, lying, or sleeping in an outdoor area or in a camp facility that is not being used for living accommodations purposes. This definition shall not limitenforcement of Chapter 8.38 "Obstruction of Property and Trespass." "Camp facility" means a tent, hut, tarpaulin, or other temporary outdoor shelter used for sleeping, living accommodations purposes, or carrying on cooking activities. "Camping implements" means cots, beds, hammocks, sleeping bags, bedrolls, blankets, sheets, luggage, backpacks, kitchen utensils, cookware, clothing, and similar gear or materials. "City personnel" means the police department and its third-party contractors and any other city employees or third-party contractors designated by the city manager. "Highway" means a way or place of whatever nature, publicly maintained and open to public use for purposes of vehicular travel. "Open space" means any parcel of land or water which is unimproved and devoted to an open space use, and which is designated as an Open Space Zone in the Zoning Ordinance (Title21). "Park" means those areas as defined in Carlsbad Municipal Code Section 11.32.010. "Parkway" means the area of the street between the back of the curb and the sidewalk that typically is planted and landscaped. "Person" is defined as any natural person, firm, association, business, trust, organization, corporation, partnership, company, or any other entity recognized by law as the subject of rights or duties. Oct. 12, 2021 Item #6 Page 5 of 14 "Personal property" includes the following items: (i) Medication, medical devices, eyeglasses, or other prescription lenses; (ii) Sleeping bag or bed roll which is sanitary and non-verminous; (iii) Tents in usable and reasonably good condition (iv) Clothes stored in a manner protecting them from the elements, which are not unsanitary, soiled, or verminous; (v) Non-perishable food items; and (vi) Personal property with an estimated individual fair market value of at least $50. "Public place" means any property in the city owned, leased, licensed, or operated by a public entity that is accessible to the public, including any of the following: parks, beaches, alleyways, parking lots, passageways, rights-of-way, landscaped areas or parkways, streets, highways, open space, sidewalks, curbs, and public educational institutions. "Shelter" means a structure designed to provide homeless persons and unstably housed individuals with overnight sleeping accommodations and relief from the elements. The "shelter" may offer meals, clothing, and supportive and self-sufficiency development services. "Shelter" may include a safe parking lot owned, leased, or operated by the city, another public entity, or a non-profit entity. "Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings, or other delineation, for pedestrian travel. "Store" means to put pside or accumulate for use when needed, to place for safekeeping, or to put in place or leave in a particular place, whether attended or unattended. "Street" means every highway, avenue, lane, alley, court, place, square, sidewalk, parkway, curb, bikeway, or other public way in the city dedicated and open to public use, or such other public property so d~signated by state law. "Tent" means a collapsible shelter made of fabric, such as nylon or canvas, or /a tarp stretched and sustained by supports, which is not open on all sides and which hinders an unobstructed view behind or into the area surrounded by the fabric. "Unattended personal property" means no person is present with an item or items of personal property who asserts or claims ownership over the personal property. lndicia of unattended personal property includes, but is not limited to, the act of leaving the personal property in a public place so that it may be appropriated by the next comer. Personal property is not considered "unattended" if a person is present with the personal property and the person claims ownership over the personal property. 8.36.030 Unlawful camping. A. Public property 1. It is unlawful for any person to: a. Camp or sleep in open space at any time. b. Camp or sleep upon any public street, public park, public beach, or other public place, except in areas which have been specifically posted, designated, or permitted for such purposes, if the person has access to adequate temporary shelter, whether because Oct. 12, 2021 Item #6 Page 6 of 14 they have the means to pay for it or because it is realistically available to them for free, and the person willfully refuses such shelter for any reason unrelated to the exercise of a state or federal constitutional right. 2. It is not the intent of this Section to prohibit lawful protesting, picketing, demonstrating, signature gathering, voter registration, leafleting, or any other lawful activity. B. Private property 1. It is unlawful for any person to camp on any private outdoor property without the express written or verbal permission of the owner or lessee of such property. 2. This subsection is not intended to: a. Prohibit overnight carnping on private residential property by friends or family of the property owner, so long as the owner consents to the camping activity. b. Prohibit or make unlawful, activities of an owner of private property or other lawful user of private property that are normally associated with and incidental to the lawful and authorized use of private property for residential or other purposes. c. Prohibit or make unlawful, activities of a property owner or other lawful user if such activities are expressly authorized by the Zoning Ordinance (Title 21) or other applicable laws, ordinances and regulations. C. The city manager or designee may issue a temporary permit to allow camping on public or private property in connection with special events (Chapter 8.17) or emergency services (Chapter 6.04). 8.36.040 Fires and cooking on public property. A. It is unlawful for any person to start or maintain any fire in a public place, except in such areas specifically designated by the city manager or designee for such fires, including stoves, barbecue pits, and fire rings. B. It is unlawful for any person to cook food in a public place, except as otherwise allowed by this code or by license or permit, or except in locations specifically designated by the city manager or designee. 8.36.050 Storage of personal property in public places. A. Unlawful Storage. It is unlawful for any person to store or leave unattended any personal property, including camp facilities or camping implements, in a public place between the hours of 6 a.m. and 10 p.m., except as otherwise provided by this code or pursuant to a valid license or permit This subsection is not intended to permit storage of personal property where otherwise prohibited by this code. B. Property Removal. City personnel may remove and store personal property that is unlawfully stored, unattended, or otherwise found in an unlawful encampment pursuant to applicable written and publicly available police department policies and procedures. C. Obstruction or Interference with Property Removal. It is unlawful to willfully interfere with, resist, delay, or otherwise obstruct city personnel from moving, removing, impounding, or discardi~ personal property pursuant to Section 8.36.0S0(B). Oct. 12, 2021 Item #6 Page 7 of 14 8.36.060 Severability. If any portion of this chapter, or its application to particular persons or circumstances, is held to be invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision shall not affect the validity of the remaining portions of this chapter or the application of the chapter to persons or circumstances not similarly situated. Section 3: follows: That Section 8.28.050 of the Carlsbad Municipal Code is amended to read as 8.28.050 Distribution, solicitation or sales to persons in vehicles. A. Except as permitted by Section 8.28.050(B), it is unlawful for any person, while on a public sidewalk or in a public roadway, to distribute, sell, or attempt to distribute or sell materials to, or to solicit, or attempt to solicit business or contributions from, any person who is traveling in any type of vehicle along a public roadway. B. Distributing materials or soliciting business or contributions is permitted on sidewalks adjacent to public roadways with a speed limit of 35 miles per hour or less as shown on the map labeled Exhibit A attached to the ordinance codified in this chapter and found on file in the city clerk's office, except: 1. When the public roadway intersects with another public roadway that has a speed limit greater than 35 miles per hour, in which case distribution or solicitation is prohibited within 100 feet of the intersection; 2. In the commercial/visitor-serving overlay zone as shown on the map labeled Exhibit B attached to the ordinance codified in this chapter and found on file in the city clerk's office; 3. Anywhere on La Costa Avenue. C. No more than one person at a time may distribute materials or solicit business or contributions at the quadrant of any intersection where distribution or solicitation is permitted under Section 8.28.050(B). Section 4: That Chapter 8.34 is added to the Carlsbad Municipal Code to read as follows: Sections: 8.34.010 8.34.020 8.34.030 8.34.040 8.34.050 8.34.060 8.34.070 Purpose. Definitions. Chapter 8.34 SOLICITATION Aggressive solicitation prohibited. Solicitation of motor vehicles and in parking lots. Entering private property for the purpose of sale without permission. Restriction on hours. Severability. Oct. 12, 2021 Item #6 Page 8 of 14 8.34.010 Purpose. This chapter is intended to improve the quality of life and economic vitality of the city, and-to protect the safety of the general public against certain abusive conduct of persons engaged in solicitation, by imposing reasonable time, place, and manner restrictions on solicitation while respecting the constitutional rights of free speech for all citizens. Motorists have complained of solicitation activity near signaled intersections and highway ramps, where solicitors have approached their vehicles. This carries an implicit threat to both person and property. Similarly, the city seeks to prevent threatening and dangerous solicitation in sensitive areas such as city parking lots or parking structures during the evening hours. Restricting solicitation in these places will provide a balance between the rights of solicitors and the rights of persons who wish to decline or avoid solicitations and will help prevent potential violent confrontations. 8.34.020 Definitions. As used in this chapter: "Public place" means a place to which the public or a substantial group of persons has access, and includes, but is not limited to, any street, parkway, highway, sidewalk, parking lot, plaza, transportation facility, school, place of amusement, park, playground, open space, and any doorway, entrance, hallway, lobby, and other portion of any business . establishment, an apartment house, or hotel not constituting a room or apartment designed for actual residence. "Solicit, ask, or beg" includes using the spoken, written, or printed word, or bodily gestures, signs or other means with the purpose of obtaining an immediate donation of money or other thing of value or soliciting the sale of goods or services. However, passively standing, sitting, or performing music while holding a sign, with no further conduct or spoken word, except in response to an inquiry, is exempt from this definition and regulation under this chapter. This chapter is not intended to restrict the exercise of protected free speech. 8.34.030 Aggressive solicitation prohibited. A. It is unlawful to solicit, ask, beg, distribute materials, or attempt to distribute materials in an aggressive manner in any public place after first being warned by a law enforcement officer. B. "Aggressive manner" means persisting in soliciting, asking, begging, distributing materials, attempting to distribute materials, approaching, or closely following a person(s), after the solicitor or distributor has been informed by unequivocal or multiple words or conduct that the person does not want to be solicited,' does not want to give money or any other thing of value to the solicitor, or does not want to receive any materials. All other conduct that may constitute an assault or battery in conjunction with solicitation, asking, begging, or distribution shall be charged separately as such crimes. 8.34.040 Solicitation of motor vehicles and in parking lots. A. Motor vehicles. No person shall approach an operator or occupant of a motor vehicle stopped in obedience to a traffic control sign, signal, or. light for the purpose of soliciting, asking, begging, distributing materials, or attempting to distribute materials while the vehicle is located in any public place. .I Oct. 12, 2021 Item #6 Page 9 of 14 B. Parking lots. No person shall solicit, ask, beg, distribute materials, or attempt to distribute materials in any public parking lot or parking structure any time after dark. "After dark" means any time from one-half hour after sunset to one-half hour before sunrise. C. Exemptions. The provisions of section 8.34.040(B) shall not apply to any of the following: 1. Solicitations related to business which is being conducted on the subject premises by the owner or lawful tenants; 2. Solicitations related to the lawful towing of a vehicle; or 3. Solicitations related to emergency repairs requested by the operator or other occupant of a vehicle. D. Penalty. After first being warned by a law enforcement officer, any violation of this subsection may be charged as a misdemeanor. 8.34.050 Entering private property for the purpose of sale without permission. No person shall go onto private property within the city for the purpose of selling, offering for sale, or · soliciting orders for the sale of any merchandise, product, service, or thing whatsoever when the occupant of such property has given notice or warned such persons to keep away. A sign posted by the occupant of the property, with the words "no solicitors," "no peddlers," or other similar words, at or near the front door or primary entrance to a residential structure on private property, shall constitute sufficient notice or warning pursuant to this section. For any property used for a purpose other than a residential use, such notice may be posted at each public entrance to any structure on the property in any conspicuous location on the property, in such a manner so as to provide reasonable notice of the restriction. 8.34.060 Restriction on hours. No person shall go onto private property for the purposes of commercial or noncommercial peddling, soliciting or canvassing before 8:00 a.m. or after 8:00 p.m., except that while the United States is on federally mandated daylight savings time the hours shall be 8:00 a.m. to 9:00 p.m. 8.34.070 Severability. If any portion of this chapter, or its application to particular persons or circumstances, is held to be invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision shall not affect the validity of the remaining portions of this chapter or the application of the chapter to persons or circumstances not similarly situated. Section 5: That Chapter 8.38 is added to the Carlsbad Municipal Code to read as follows: CHAPTER 8.38 OBSTRUCTION OF PROPERTY, TRESPASS, AND DISORDERLY CONDUCT Sections: Oct. 12, 2021 Item #6 Page 10 of 14 8.38.010 8.38.020 8.38.030 8.38.040 8.38.050 8.38.060 Purpose. Definitions. Unlawful obstruction of property. Trespass on parking lots, shopping center prop~rty, and other private property open to the patronage of the public. Disorderly conduct. Severability. 8.38.010 Purpose. The purpose of this chapter is to maintain public and private property open to the: patronage of the public in an orderly and accessible condition to protect public health, safety, and welfare. The obstruction of or trespass upon these areas can interfere with the rights of others to use these areas for the purposes for which they were intended. Pedestrians, the elderly, disabled, and vision- impaired are put at increased risk when they must see and navigate around individuals sitting or lying upon a public walkway or otherwise obstructing public access. In some circumstances, people sitting or lying on public walkways deter members of the public from frequenting those areas. This, in turn, contributes to an erosion of the essential economic viability of those areas. Business failures and relocations can cause vacant storefronts, contributing to deterioration and blight, which harms the public health, safety, and welfare. The city recognizes that there is a fundamental need to rest and sleep and desires to accommodate that need while also satisfying the needs of the general public to travel freely and safely throughout the city. The limited regulation of obstruction or trespass on public property or private property open to the patronage of the public is reasonably necessary and appropriately balances the public interest and individual rights. 8.38.020 Definitions. All definitions provided in Carlsbad Municipal Code Chapter 8.36, Section 8.36.020 are applicable to this chapter. Additionally, as used in this chapter: "Loitering" is defined as delaying or lingering in any one place without a lawful purpose under circumstances that would warrant a reasonable person to believe that the purpose or effect is to commit a crime or to conceal illegal activities. 8.38.030 Unlawful obstruction of property. A. It is unlawful for any person, after first being warned by a law enforcement officer, or where a sign or signs have been posted in accordance with this chapter, to loiter, stand, sit, lie, sleep, maintain, or leave any objects, possessions, or structures in any manner that partially or completely blocks, obstructs, prevents, or otherwise hinders the free movement of people who may or may not yet be present at the location in question, or in any manner that impedes passage in contravention of federal or state disability access laws, either: 1. Upon any public sidewalk, street, curb, parkway, crosswalk, walkway or pathway area, highway, or park, or 2. Upon any shopping center or other private property open to the patronage of the public. Oct. 12, 2021 Item #6 Page 11 of 14 B. It is unlawful for any person, object, or possession to partially or completely block, obstruct, prevent, or otherwise hinder the free access to the entrance to any building open to the public, whether or not other persons are present at the location in question. 8.38.040 Trespass on parking lots, shopping center property, and other private property open to the patronage of the public. It is unlawful for any person, after first being warned by a law enforcement officer, or where a sign or signs have been posted in accordance with this chapter, to remain on, wander, idle, or loiter on any parking lot, shopping center property, or any other private property open to the patronage of the public, without visible or lawful business with the owner or occupant or without the written permission of the owner, the person entitled to immediate possession or the authorized agent of either. This section does not apply to a public officer or employee acting within the course and scope of employment. 8.38.050 Disorderly conduct. A. It is unlawful for a person to commit any of the following acts with the intent to cause another person annoyance, alarm, or disturbance, or with the intent to interfere with another person's lawful discharge or pursuit of any lawful business or occupation: 1. Engaging in fighting or in violent, tumultuous, or threatening behavior that would put a reasonable person in fear for the person's safety; or 2. Using language that a reasonable person would consider offensive, lewd, vulgar, profane, threatening, abusive, or insulting, within the hearing range of another person in any public place or any place open to the patronage of the public; or 3. Uttering or using within the hearing of another person any language, words, epithets, expressions, or remarks, either intended to or likely to incite or create a breach of the peace; or 4. Encouraging by words or conduct, disobedience to any lawful order or request of any law enforcement officer pursuant to and in the performance of the officer's duties; or 5. Making or participating in making any unreasonably loud noise or engaging in offensive conduct or behavior, as measured by an objectively reasonable person standard, in any public place or any place open to the patronage of the public. B. It is unlawful for a person to commit any of the acts specified in Section 8.38.0S0(A) with reckless disregard for the risk of causing another person annoyance, alarm, or disturbance, or of interfering with another person's lawful discharge or pursuit of any lawful business or occupation. . C. It is unlawful for a person to congregate with two or more other persons in any public place, or in any place open to the patronage of the public, when the purpose of congregating is, by words, acts, or conduct generallyoffensive to the community, to annoy, disturb, or interfere with another person's lawful discharge or pursuit of a lawful business or occupation, or to maliciously interfere with or annoy another person lawfully at the place. Oct. 12, 2021 Item #6 Page 12 of 14 8.38.060 Severability. If any portion of this chapter, or its application to particular persons or circumstances, is held to be invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision shall not affect the validity of the remaining portions of this chapter or the application of the chapter to persons or circumstances not similarly situated. Section 6: follows: That Section 8.44.040 of the Carlsbad Municipal Code is amended to read as 8.44.040 Consuming or possessing an open container of an alcoholic beverage in certain public places and public parks owned by the city. A. No person shall possess any can, bottle, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, nor shall any person consume any alcoholic beverage in any city-owned public place or city-owned park identified in this section as: 1. Any public street, sidewalk, alley, highway, public parking lot, or public open space owned by, leased to, licensed to, or operated by the city in the V-B Village Barrio Zone, as that zone is designated in Chapter 21.35 of this code, as amended, and specifically within or adjacent to the VC, VG, HOSP, FC, and PT districts and the VBO district (Magee and Maxton Brown parks) of the Village and Barrio Master Plan. 2. Rotary Park located at the 2900 block of Washington Street, bordered to the west by Washington Street, bordered to the east by the west alley of State Street immediately east of the Atchison, Topeka and Santa Fe Rail Road tracks, bordered to the south by Carlsbad Village Drive and bordered to the north by Grand Avenue in the City of Carlsbad. 3. Holiday Park and Pine Avenue Community Park. B. Unlawful possession of an open container of an alcoholic beverage as described in Section 8.44.040(A) shall be charged as an infraction; unlawful consumption of an open container of an alcoholic beverage as described in Section 8.44.040(A) may be charged as a misdemeanor. C. Any of the prohibitions set forth in this section may be waived when a special event permit or a park and facility use permit requesting a waiver has been granted by the city manager or designee. D. This section does not apply when an individual is in possession of an alcoholic beverage container within a sidewalk cafe or curb cafe that is approved and permitted as required by the Village and Barrio Master Plan and the California Department of Alcoholic Beverage Control, or any temporary permits issued under state or local emergency orders. E. This section does not apply when an individual is in possession of an alcoholic beverage container for the purpose of recycling or other related disposal activity. Oct. 12, 2021 Item #6 Page 13 of 14