Memorandum

City of Lawrence

Legal Services

 

TO:

Toni Ramirez Wheeler, Director of Legal Services

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

May 26, 2009

 

RE:

Ordinance 8397 -- Unlawful Hosting of Minors

 

Introduction

 

In the recently completed legislative session, the Legislature amended the Kansas statute that illegalizes the hosting of minors consuming alcohol or cereal malt beverages.  At the same time, Jen Brinkerhoff, the Director of the Regional Prevention Center of Eastern Kansas, contacted our office with a request to meet to discuss improvements to our local ordinance to meet some Lawrence-specific enforcement challenges. 

 

As a result, Brinkerhoff met with Jerry Little of the City Prosecutor’s office, Trent McKinley of the Lawrence P.D., Charles Branson the Douglas County District Attorney, Schuyler Bailey of the University of Kansas campus police and me.  Improvements to our local ordinance were suggested based upon our experience enforcing the current ordinance.  Two proposed ordinances were then drafted.  One ordinance would merely update our current law to incorporate the changes made to the same law on the state level.  The other ordinance also includes the language from the amended Kansas statute, but also adopts some Lawrence-specific language that will likely improve its enforceability here.

 

Below, I will discuss each ordinance and recommend that one of the two ordinances be adopted in order to ensure that our ordinance does not cover less behavior than the state law it is based upon.      

 

Basic Update – Draft Ordinance One

 

Section 4-103.1 of the City Code mirrors K.S.A. 21-3610c, the Kansas statute that provides for criminal liability for unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage.  House Bill 2165, passed by the legislature and signed by the governor this legislative session, amends that statute in a pair of ways.

 

First, HB 2165 expands criminal liability for unlawful hosting, including not only intentional conduct but reckless conduct as well.  Reckless conduct is defined in K.S.A. 21-3201(c), which states that:

 

Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms "gross negligence," "culpable negligence," "wanton negligence" and "wantonness" are included within the term "recklessness" as used in this code.

 

The amended statute also exempts lodging establishments from civil but not criminal liability that may arise because of the statute’s provisions.

 

The amendments to the Kansas statute will take effect on July 1, 2009.  It is in the City’s interest to amend its ordinance to prevent our ordinance from being more lenient than Kansas law.  Draft one of Ordinance 8397 brings our ordinance back into line with the amended statute, and if passed will take effect on the date the amendments to K.S.A. 21-3610c become effective.

 

Local Modifications – Draft Ordinance Two

 

Draft two of Ordinance 8397 includes all of the updates contained in draft one, but also includes language that will likely improve its enforceability in certain situations that the police commonly encounter in Lawrence.  Cities are allowed to pass ordinances that are more stringent than state law, but not less stringent than state law.  Draft two is more explicit than the amended state law but does not relax its prohibitions in any way.  Therefore, should the City Commission desire to pass draft two of Ordinance 8397, it would be legal for it to do so.

 

The additional language in draft two is aimed at a specific type of social gathering that is very common in Lawrence, the large house party.  Many of these parties are open invitation, and essentially transform residential properties into de facto public drinking establishments when they are held.  The majority of the attendees may not be known by the organizers by name, and may not even know whose party they are attending.

 

Because of this, and because of the way the Kansas statute is written, it is sometimes difficult to establish that the attendees who are drinking at the parties under age are doing so as invitees.  The term invitee is not defined, and although it is doubtful that a person is required to be extended an explicit verbal or written invitation to become an invitee, it is far too easy to attempt to avoid liability by claiming, perhaps rightfully, that no such invitation was ever issued.

 

Draft two of Ordinance 8397 attempts to address this scenario in several ways.  The ordinance:

         

1.      Establishes a presumption that everyone attending and participating in a social activity such as a party is there as an invitee of the organizer of the activity.  This presumption is not irrefutable, and it may be rebutted by any evidence that shows that a specific attendee was trespassing.

 

2.      It is declared reckless per se for any person to host or allow a social activity on his or her property without taking reasonable steps to keep alcohol out of the hands of minors on the property.

 

3.      Reasonable steps to control access to alcoholic beverages at social activities by minors are required by the ordinance, including using available lawful means to exclude those people who are not invited to the social activity from the activity.

 

4.      If alcohol is to be served and available to attendees, it is expected that the age of the attendees will be verified by government issued photograph identification.  This will only be necessary if there is a chance of minors attending the social activity. 

 

5.      The ordinance does not apply to licensed caterers as they are governed by a different set of laws. 

 

Conclusion

 

For these reasons, I recommend that either draft one or draft two of Ordinance 8397 be adopted.  If you have any questions, please let me know.