DATE: September 26, 2023
TO: Mayor and City Council
FROM: Acting Chief of Police
SUBJECT: Spectator Ordinance Modifications: Consider Ordinance Changes Amending Chapter 4, Article 12 of the Hayward Municipal Code Relating to Spectators at Illegal Speed Contests and Exhibitions of Speed to Include Sideshows
RECOMMENDATION
That the City Council discusses and considers amendments (Attachment II) to the Spectator Ordinance in Chapter 4, Article 12 of the Hayward Municipal Code (“HMC”) to include the definition of “sideshows” and ability to regulate sideshow spectators, to align with the Legislature’s 2021 adoption of the definition of “sideshow(s)” under Assembly Bill (“A.B.”) No. 3.
SUMMARY
While, under current law, driving unsafely during sideshows is illegal, generally, being a spectator at a sideshow is not. Given the recent rise in the number of dangerous sideshows occurring throughout California, cities and counties have begun creating local ordinances as mechanisms to allow for the regulation of spectators at sideshows. This is because subject matter experts from cities across the country unanimously agree that if spectators can be curbed from attending these events, drivers will either stop holding these extremely dangerous shows or relocate to places they can find an audience.
The City of Hayward already has what is referred to as a “Spectator Ordinance,” (Article 12 of Chapter 4 of the HMC) that allows the City to regulate spectators. However, the current Spectator Ordinance, which was adopted in 2009, is deficient as it only covers spectators who are present at what are commonly known as drag races or speed contests. It does not currently allow for the regulation of spectators at sideshows. The proposed amendments, attached hereto, would cure this deficiency by updating the Spectator Ordinance to include the same definition of “sideshows” used by the Legislature in AB 3, introduced recently, in 2021 due to the increased prevalence of sideshows in California.
BACKGROUND
The proliferation and sophistication of “sideshows” have advanced dramatically in the last few years. They have gone from small gatherings in industrial areas during early morning weekend hours, to taking over large intersections during broad daylight with hundreds of spectators livestreaming the event directly to social media. They often attract other criminal elements and the drivers/spectator’s coordination around law enforcement’s response has become increasingly complex. Subject matter experts from cities across the country unanimously agree that if spectators can be curbed from attending, drivers will stop or relocate to places where they can find an audience.
In response to the recent increase of sideshows in California, in January of 2021, the California Legislature passed A.B. 3, which amended Section 23109(i)(2) of the California Vehicle Code, to include the following definition of “sideshow” (and increased penalties for drivers who participate in sideshows):
For purposes of this section, “sideshow” is defined as an event in which two or more persons block or impede traffic on a highway or in an off-street parking facility, for the purpose of performing motor vehicle stunts, motor vehicle speed contests, motor vehicle exhibitions of speed, or reckless driving, for spectators.
California Vehicle Code § 23109(i)(2).
The City believes that including the Legislature’s definition of “sideshow(s)” in the City’s Spectator Ordinance will assist HPD in curbing the number of dangerous sideshows that occur in Hayward. While under state law, the City of Hayward can regulate drivers for driving recklessly while engaging in sideshows per the provisions of the Vehicle Code, the Vehicle Code does not provide any mechanism by which the City can regulate spectators at these illegal shows. As such, since the introduction of A.B. 3, numerous cities and counties have created what are known as “Spectator Ordinances,” as mechanisms by which cities and counties can regulate spectators at these dangerous illegal shows.
As previously mentioned, Hayward already has a Spectator Ordinance, which the City adopted in 2009. However, the current ordinance relates solely to speed or drag races, and does not cover what the Legislature has now defined as “sideshows.” Thus, in order to be able to fully regulate spectators at all illegal driving shows, including sideshows, the City is proposing minor amendments to the current Spectator Ordinance, to include the definition of “sideshows.”
DISCUSSION
As the Spectator Ordinance currently stands, HPD can only cite/arrest spectators if the spectator is present at an event involving “illegal motor vehicle speed contests” or “illegal exhibitions of speed.” Under California law, “a person engages in an exhibition of speed when he or she accelerates or drives at a rate of speed that is dangerous and unsafe in order to show off or make an impression on someone else.” Based on this definition, there would need to be some use of a dangerous or unsafe acceleration of speed during the sideshow for a spectator at the sideshow to fall within the purview of Hayward’s Spectator Ordinance. For instance, without amendment, the City would not be able to regulate spectators at an event in which a car was not speeding, but was driving on the opposite side of the street or up and off of the sidewalk as a part of the show, since there is no element of unlawful speed.
The minor edits suggested by staff, which align with the Legislature’s intent to allow for further regulation of sideshows, would close this gap making it clear that the City can regulate any and all spectators at both a speed racing event, and a sideshow event, creating a safer environment for residents of Hayward.
Summary of Minor Updates to Ordinance
To make up for this enforcement gap, staff have added the following types of minor updates to the current Spectator Ordinance:
The Ordinance currently references California Vehicle Code § 23109, which makes the exhibition of speed unlawful and includes the new definition of “sideshow.” Staff have amended the Ordinance to also include reference to California Vehicle Code § 23103, which penalizes “reckless driving,” in order to better capture all types of unsafe driving used during sideshows; Language was inserted into Sec. 4-12.001 "Purpose" to provide information on the importance of regulating sideshows and those who attend them as spectators, including information about the prevalence, popularity and dangerous nature of sideshows; The Definitions of “sideshow(s)” and “reckless driving” were added to Sec. 4-12.002. The purpose of adding these definitions is to both broaden the City’s ability to regulate all dangerous driving behavior being performed for the purpose of spectating, and to provide potential spectators notice of what the unlawful behavior entails; The definition of the term “present” was inserted into Sec. 4-12.002, to provide notice to both City staff and potential violators when their “presence” at a sideshow is unlawful. Specifically defining these terms is what ensures that the standards are not unconstitutionally vague; The terms “sideshow,” and “reckless driving” were added to Sec. 4-12.003, which summarizes the potential criminal/administrative penalties for violating the Ordinance; The terms “sideshow” and “reckless driving” were added to Sec. 4-12.004, which provides for “relevant circumstances to prove [a] violation”; and The terms “sideshow” and “reckless driving” were added to Sec. 4-12.005, which discusses the admissibility of prior acts to prove a violation.
Enforcement/Penalties
The Hayward Police Department (HPD) would be responsible for enforcement of this Ordinance. Under the Ordinance, HPD has the option of providing a written warning (warning citation) or enforcing the Ordinance criminally or administratively. If HPD decides to enforce the Ordinance criminally, a spectator unlawfully attending an illegal vehicle sideshow may be charged with a misdemeanor, subject to a maximum of six (6) months in jail and a fine of one thousand dollars ($1,000).
If HPD chooses to enforce the Ordinance administratively, a first violation of the Ordinance would result in an administrative citation with a five hundred ($500) fine. A second violation would result in an administrative citation and a seven hundred fifty dollar ($750) fine. A third/any subsequent violation(s) would result in an administrative citation with a one thousand dollar ($1,000) fine. The City would need to issue a notice of violation within thirty (30) days of the violation, which the violating person can then challenge via the administrative hearing process set forth in Article 7 of Chapter 1 of the Hayward Municipal Code.
This Ordinance has been in place since 2009 and has been used primarily to educate and deter potential violators. The goal in updating this Ordinance is to provide the City with a variety of options to address the safety concerns associated with sideshows and to serve as a deterrent for would be participants and spectators. These options include the issuance of warning citations, administrative citations, and/or criminal citations by the HPD. The City recognizes the concerns associated with an Ordinance designed to include the potential enforcement of spectators; however, the need for multiple enforcement options in the interest of community safety outweighs them. These options are not designed for use on individuals or groups protected by State and Federal law, nor would they be used to disproportionately impact such individuals or groups. The Ordinance includes very specific language, identifies very specific conduct, and identifies very specific processes for appealing a violation, which can ensure the constitutionality of the Ordinance as well as the equal enforcement of it.
Staff are seeking Council’s guidance on the proposed changes to the Ordinance as well as suggestions for addressing the unique challenges associated with sideshows through the use of this Ordinance.
FISCAL IMPACT
There is no fiscal impact associated with this item.
STRATEGIC PRIORITIES
This agenda item relates directly to the Council’s Strategic Initiative to Enhance Community Safety & Quality of Life as it relates to the cleanliness and blight reduction goals. It would also have secondary benefits to the initiatives focusing on Confronting Climate Crisis & Champion Environmental Justice by reducing greenhouse gases and Investing in Infrastructure by protecting our City-Owned facilities & Property.
NEXT STEPS
Following this work session, staff will make the appropriate changes to the ordinance language and would then return to Council for introduction and adoption of the updated Ordinance.
Prepared by: Dan Olsen, Patrol Division Captain and Amy Rothman, Deputy City Attorney Recommended by: Bryan Matthews, Acting Chief of Police Approved by:
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Kelly McAdoo, City Manager