Historically, the Laguna Beach City Council generally has focused its exercise of local statutory criminal jurisdiction over alcohol consumption on drinking in public places. The proposed Social Host Ordinance departs from that historical approach and would impose criminal sanctions under local statutory law for use of alcohol in private homes.
Since state criminal law already governs serving alcohol to underage persons or otherwise endangering and contributing to the delinquency of minors, the proposal for a city law taking the field in these same matters raises important issues about the interplay of federal, state, county and local municipal law.
The questions that have come up with respect to a local statute of this nature, including privacy and due process issues, have not been addressed in an open and transparent deliberative process.
To promote dialogue here are some preliminary responses to statements that have been made by SHO supporters:
“Other cities are doing SHOs, so why not Laguna?”
In the face of growing opposition to the proposed Social Host Ordinance, supporters of the proposed law, led by the Chief of Police, increasingly are defending the view that its enactment is appropriate simply because other cities in California have adopted SHO’s. But that is because, unlike many other states, there is no statewide SHO in California, and cities have decided to adopt various versions of the SHO model without knowing how it will impact the enforcement of state law that governs the same behavior as a local SHO.
Only a SHO enacted under state law would ensure its compatibility with existing state criminal and family laws on child endangerment and contribution to delinquency. Consistency in state and local law as well as criminal procedure is essential to uniform law enforcement and prosecutorial practices. This is one of many issues our City Council needs to examine, before rushing to judgment on the SHO to satisfy political rather than public policy imperatives.
In matters of local government operations and programs through which we manage our civic affairs within the sphere of the natural and cultural insularity we treasure, autonomy from Sacramento and Washington is desirable. In matters involving the legal and political rights of individuals the normative standards of state and federal law promote more predictable and uniform rule of law.
When it comes to the exercise of police power in our homes, too much local discretion and political influence on enforcement can mean too little discipline in procedures ensuring accountability and high standards for prosecutorial management. Vertical integration in the intergovernmental rule of law system secures the orderly scheme of rights and responsibilities that preserves our freedom more consistently than local law.
This is especially true where the purpose of the local law is criminalization of targeted social conduct already prohibited by state law. Arguably, supporters of a SHO in Laguna should lobby Sacramento for a uniform state law, instead of lobbying the City Council to pass a poorly drafted local criminal law. The local SHO will tend to divert police from enforcement of state criminal and family law statutes, in order to enforce the SHO and perform social intervention duties at the behest of the local political establishment.
If a state SHO is adopted the police can be trained under uniform state standards for enforcement and prosecution, as they should be under existing state child endangerment and delinquency laws. If a local SHO is hastily adopted based on practices of other cities, the LBPD will be required to develop local enforcement standards and perform more social interventions that police often describe as nuisance duties and do not handle well already.
“We need a SHO as one more tool we need to fight teen drinking”
The other main argument in favor of the SHO is that it will give the city government and public schools a “tool” to use in order to control teen drinking. SHO supporters describe it as a “hammer for use in aggravated cases” of parent enablement of teen drinking, while assuring us that the SHO allows police to practice leniency in less serious cases.
The Chief of Police predicts the LBPD will issue no more than 5 or 10 citations a year, so we don’t need to worry about abuse of the new law. The problem with that reasoning is that even one case of arbitrary or selective enforcement of a flawed and politicized local law, advanced in the City Council without adequate deliberation or notice, is neither necessary nor compatible with the character of our town.
The idea that city and public school officials will collaborate in indentifying and evaluating the seriousness of social host conduct criminalized under local rather than state law standards also is profoundly disconcerting. The clear implication of statements by some School Board members is that public school officials, health care providers and social services providers will “work with” police to determine when leniency should be practiced, or the “hammer should come down.”
When local school, health care and social services are operating under uniform city, county and state law standards, there is a broadly understood standard of care and effectively institutionalized duty to report child abuse and endangerment of minors to law enforcement. The rules and procedures are not perfect but have been adapted based on experience and judicial review at the state level to produce overall objective consistency and uniformity.
In contrast, when local police, city and public school officials, as well as health care and social service providers are operating under a local law criminalizing targeted social conduct, the operational standard for enforcement decisions is what satisfies and meets the approval of the City Council, School Board and the other local employing agencies or organizations. While interagency and public/private provider networking is highly desirable in connection with efforts to ensure effective delivery of services, the City Council needs to be far more cautious in unleashing the dynamics of localized government networking in connection with administration of criminal justice.
“The ‘Community Coalition’ needs a SHO to partner with police and better control teen drinking”
Without adequately informing the community or allowing open dialogue and discussion with diverse views to be represented, the “Community Coalition” is lobbying the City Council for needlessly expedited action to approve the SHO. The political collusion between the agencies and organizations participating in the Community Coalition may be well intended, but the lack of inclusive dialogue and the abandonment of impartiality by public officials before the City Council has acted gives rise to serious questions about enlistment of public employees for political purposes.
The problem of politicization of the Community Coalition includes the use of public employees whose salaries are paid by the public and property owners to take positions of political advocacy in concert with supporters of the SHO, in a manner openly adversarial toward opponents. This often may be because the public employees involved are motivated to please their local superiors and supervisors.
This is a demonstration of the dynamics that will ensue under a local SHO. For, as already noted, under a local SHO the motivation of local officials becomes use the SHO as a “tool” in a way that please local authorities. Inevitably, that motivation becomes disproportionately greater than ensuring that enforcement actions prove sustainable under county, state and federal standards of due process and equal protection.
The Laguna Beach Police Department is good at preserving public safety and protecting life as well as property from crime and in emergencies. Coordination and cooperation between the police and municipal, county, state and national providers of human and social services, as well as programs from for education to social welfare, is appropriate when done consistent with criminal, family and privacy law imperatives.
But the goal of appropriate partnerships is not advanced by ad hoc local law and policy that in a sloppy and in-artful way duplicates, overlaps and complicates the role of local police and other public officials in matters already adequately and uniformly governed by existing and fully applicable federal, state and county laws, policies and practices.
“State child endangerment laws are too complicated for police to enforce, so we need a local law that makes it easier to make arrests”
The City Hall establishment has appointed the Chief of Police to market this SHO to the city, and astonishingly he actually argued openly in public that the state law on child endangerment is too complex, and the city needs something simple under local law to make arrests easier. That is the last thing we need.
Paradoxically, the Chief of Police also has acknowledged that the proposed local SHO “prohibits nothing that is not already prohibited under state law.” He also has stated that any time an adult who serves alcohol to minors, and the police have actionable evidence of it, that adult can be arrested and prosecuted under existing state law.
In that context the argument by the Chief of Police and SHO supporters that a local law with more simplistic provisions will somehow provide a “tool” that we don’t already have can mean only one thing: A locally promulgated SHO will give local police who answer to the City Council the ability to make arrests under the local statute that would not be made under state law, or would not hold up under county and state criminal justice standards.
The arguments made by the Chief of Police and supporters of the SHO about flexibility to calibrate the exuberance or leniency and the tone or tenor of enforcement to local standards can mean one thing: The SHO will give police and local government the power to issue citations or make arrests that in and of themselves will “make an example” of offenders, and serve as a deterrent to offensive conduct, regardless of whether there is a conviction in county courts.
That will in effect mean punishment by arrest rather than upon conviction of the crime charged. Whether supporters of the SHO even know it or not, this is what it really means when the School Board says “We just need it as one more tool to fight teen drinking.” Opponents don’t care how many cities do it, this is wrong in Laguna Beach.
The SHO will become politicized in a way that will result in a double standard for some parents who serve and not others. It will be enforced predominately if not exclusively against families who need help, not social stigmatization. It will never be enforced against any of the people of position and stature who support it, even if they have the same issues in their families and homes as those against whom it will be enforced.
“We need to do something to show that teen drinking is a priority”
The SHO debate is undermining the efficacy of the Community Coalition’s drug and alcohol abuse program. A less intrusive and more effective program makes less of a splash politically, and requires far more sustained hard work.
The School Board and Community Coalition have developed a strong comprehensive program to address teaching of life skills to teens and families to address teen drinking and other challenges. These professionals need to stick with what they are trained for and do well. The opponents of SHO have and will support that program.
But we all need to do a lot more to address teen drinking through affirmative measures before using a local criminal law adopted for the express purpose of creating a lower standard of enforcement than state law. The SHO is lazy social policy and bad criminal law. The police in this town will tell you social intervention laws like disturbing the peace are the bane of their existence.
The police are the guardians of our safety and freedom from crime, not baby sitters or agents of the nanny state. State criminal law and family law is more than adequate to ensure residents and families are safe, we don’t need social engineering experiments that are enacted by the City Council at the behest of the Community Coalition that will have unintended consequences.
That may include escalation of criminal and civil liabilities based on violation of this ordinance that would not arise or be upheld under state law. Mark these words, some ambitious prosecutor will one day use this statute to charge someone with homicide, or some lawyer will file a huge civil lawsuit, based on the legal theory that the statute created a standard of care breached by someone given a “mere citation” under this ordinance, intended to be “another tool” for local officials to use in the program to stop teen drinking.
This law will never be enforced when well connected adults let kids drink, it will be single moms and dads who lack the parenting skills to manage in these times, folks who are not on the social A list or the downtown cocktail party circuit. This will institutionalize an elitist hypocrisy. It will never be enforced against anyone on the City Council or the School Board, or any of their friends.
The SHO will never affect most of us, but it will affect justice in our town. The only thing it adds to existing law is the potential for its abuse.