[HISTORY: Adopted by the Mayor and Council of the City of Española 6-28-2011 by Ord. No. 2011-03. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated:
- Ethyl alcohol, hydrated oxide of ethyl, or spirits of wine, from whatever source or by whatever process produced.
- ALCOHOLIC BEVERAGE
- Alcohol, spirits, liquor, wine, beer, and every liquid or solid containing alcohol, spirits, wine, or beer, and which contains 1/2 of 1% or more of alcohol by volume and which is fit for beverage purposes either alone or when diluted, mixed, or combined with other substances.
- Any person less than 18 years of age.
- LOUD OR UNRULY GATHERING
- A party or gathering of two or more persons at or on a residence, other private property, or public property where a license for it has not been obtained upon which loud or unruly conduct occurs. A loud or unruly gathering shall constitute a public nuisance. Loud or unruly conduct includes, without limitation:
- A. Excessive noise;
- B. Excessive traffic;
- C. Obstruction of public streets or crowds that have spilled into public streets;
- D. Public drunkenness or unlawful public consumption of alcohol or alcoholic beverages;
- E. Service to or consumption of alcohol or alcoholic beverages by any underage person, except as permitted by state law;
- F. Assaults, batteries, fights, domestic violence or other disturbances of the peace;
- G. Vandalism;
- H. Litter; and
- I. Any other conduct which constitutes a threat to public health, safety, quiet enjoyment of residential property or general welfare.
- RESIDENCE OR OTHER PRIVATE PROPERTY
- A home, yard, apartment, condominium, hotel or motel room, or other dwelling unit, or a hall or meeting room, whether occupied on a temporary or permanent basis, whether occupied as a dwelling, party or other social function, and whether owned, leased, rented, or used with or without compensation.
- RESPONSE COSTS
- The costs associated with responses by law enforcement, fire and other emergency response providers to loud or unruly gatherings, including, but not limited to:
- A. Salaries and benefits of law enforcement, fire or other emergency response personnel for the amount of time spent responding to, remaining at, or otherwise dealing with loud or unruly gatherings, and the administrative costs attributable to such response(s).
- B. The cost of any medical treatment to or for any law enforcement, fire or other emergency response personnel injured responding to, remaining at or leaving the scene of a loud or unruly gathering.
- C. The cost of repairing any City equipment or property damaged, and the cost of the use of any such equipment, in responding to, remaining at or leaving the scene of a loud or unruly gathering.
- RESPONSIBLE PERSON
- A person or persons with a right of possession in the residence, other private property or public property on which a loud or unruly gathering is conducted, including, without limitation:
- A. An owner of the residence or other private property;
- B. A tenant or lessee of the residence or other private property;
- C. The landlord of another person responsible for the gathering;
- D. The person(s) in charge of the residence or other private property; and
- E. The person(s) who organizes, supervises, officiates, conducts or controls the gathering or any other person(s) accepting responsibility for such a gathering.
- UNDERAGE PERSON
- Any person under 21 years of age.
Every owner, occupant, lessee, licensee or holder of any possessory interest in a residence, other private or public property within the City of Española is required to maintain, manage and supervise the property and all persons thereon in a manner so as not to violate the provisions of this chapter. The host remains liable for such violations regardless of any contract or agreement with any third party regarding the property.
The host shall not conduct, aid, allow, permit or condone a loud or unruly gathering at a residence or other private property.
If the host of the gathering is a juvenile, then the parents or guardians of that juvenile and the juvenile will be jointly and severally liable for the response costs incurred pursuant to this chapter.
To incur liability for response costs imposed by this chapter, the host of the loud or unruly gathering need not be present at such gathering resulting in the response giving rise to the imposition of response costs. This chapter therefore imposes vicarious as well as direct liability upon a responsible person.
When a law enforcement, fire or other emergency response provider official makes an initial response to a loud or unruly gathering at a residence or other private or public property within the City of Española, the official shall inform any responsible person(s) for the gathering at the scene that:
The official has determined that a loud or unruly gathering exists; and
Hosts will be charged for any response costs required for subsequent responses to the scene for a loud or unruly gathering within a twelve-month period. Only one warning will be given to a host pursuant to this section before the City of Española assesses response costs. If a host cannot be identified at the scene, the official may subsequently return to the premises and issue the warning to a then-present host. Warnings given to a host who does not reside at the premises in question shall be delivered by certified mail.
A warning given pursuant to this section shall remain in effect for the premises at a given address until a full twelve-month period has elapsed during which there have been no responses to a loud or unruly gathering at that premises.
When a law enforcement, fire or other emergency response provider responds to a loud or unruly gathering at a premises within the City within a twelve-month period of a warning given to a host for a loud or unruly gathering, all responsible persons shall be jointly and severally liable for the City's costs of providing response and for all subsequent responses during the warning period according to the schedule of cost recovery established by the Police Department. The cost recovery schedule shall be available at the City's Police Department and at the City Clerk's office.
The amount of response costs shall be deemed a debt owed to the City of Española by the Host responsible for the loud or unruly gathering. Notice of the costs for which the Host is liable shall be mailed via certified mail within 14 days of the response giving rise to such costs. The notice shall contain the following information:
The name of the person(s) being held liable for the payment of such costs;
The premises address of the loud or unruly gathering;
The date and time of the response;
The law enforcement, fire or emergency service provider who responded;
The date and time of any previous warning given pursuant to this chapter and/or previous responses to loud or unruly gatherings at the residence or other private property in question within the previous 12 months; and
The recovery cost assessed as set forth in the cost recovery schedule.
The host shall remit payment of the noticed response cost to the City of Española within 30 days of the date of the notice.
Nothing in this chapter shall be construed as a waiver by the City of Española of any right to seek reimbursement for actual costs of response services through other legal remedies or procedures. The procedures provided for in this chapter are in addition to any other statute, ordinance or law, civil or criminal. This chapter in no way limits the authority of peace officers or private citizens to make arrests for any criminal offense arising out of conduct regulated by this chapter.
Any person upon whom response costs are imposed shall have the right to petition the district court for a writ of certiorari pursuant to Rule 1-075 NMRA.