Proposed act unconstitutional, group says
Mike Joseph
STATE COLLEGE — A proposed borough ordinance to curb the impact of rowdy parties by holding hosts responsible for the illegal activities of guests has come under fire from a national organization that advocates individual rights.

The American Civil Liberties Union told State College in a letter Friday that the borough’s proposed “nuisance gathering ordinance,” which is scheduled for a public hearing Monday night, violates the U.S. Constitution.

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Sara Ganim
STATE COLLEGE — Scott Marion never thought selling $35 worth of marijuana to a college buddy might land him in state prison for more than two years.

Sentencing guidelines for that kind of crime call for probation to 30 days in county jail — with one huge exception.

If you are caught selling drugs within 1,000 feet of a school, state law says prosecutors can seek a two-year mandatory minimum sentence.

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ORDINANCE NO.

NUISANCE GATHERING ORDINANCE

Be it ENACTED AND ORDAINED by the Borough Council of the Borough of State College, and it is hereby Enacted and Ordained by authority of same, as follows:

SECTION 1. Amend the State College Borough Codification of Ordinances, Chapter V. Conduct. To add a new Part J. Nuisance Gathering Ordinance, to read as follows:

PART  J

NUISANCE GATHERING

Section 1001. Purpose and Findings. The Borough of State College intends to preserve the peace, health, safety, and welfare of the residents and neighborhoods in the municipality by reducing the illegal behavior and conduct often occurring at events or gatherings that
seriously detracts from the peace, health, safety, and welfare of the community.

The Borough of State College finds that:

a. Events and gatherings held on private or public property where persons gather and where Liquor or Malt or Brewed beverages are consumed and/or illegal controlled substances are used by persons attending such events or gatherings often results in disruptive, disorderly, destructive, violent, and hazardous conditions that constitute a threat to peace, health, safety, and welfare of the community that require prevention, response to, and/or abatement.

b. Often events and gatherings held on private or public property where persons gather and where Liquor or Malt or Brewed beverages are consumed and/or illegal controlled substances are used by persons attending such events or gatherings result in one or more of the following:

(1) Liquor or Malt or Brewed beverage-related or illegal controlled substance-related traffic crashes; or

(2) Liquor or Malt or Brewed beverage-related or illegal controlled substance-related injuries from falls and other accidents; or

(3) Overconsumption of Liquor or Malt or Brewed beverage requiring emergency medical treatment; or

(4)  Providing Liquor or Malt or Brewed beverage to persons under 21 years of age; or

(5)  Residents being awakened overnight from loud noises; or

(6)  Violent outbursts that result in physical injury to persons; or

(7)  Residents having their property damaged or stolen.

c. These events and gatherings that become unlawful public nuisances result in an inordinate amount of police service resources deployed to these events or gatherings resulting in additional costs to the Borough of State College taxpayers. Because of these inordinate costs, it is necessary to recover the police service costs for certain unlawful public nuisances.

Section 1002. Authority. This ordinance is enacted pursuant to XXXXXXXX

Section 1003. Definitions. For purposes of this ordinance, the following terms have the following meanings:

Event or gathering. Event or gathering means any group of three (3) or more persons who have assembled or gathered together for a social function or other activity on public or private property whether indoors or outdoors.

Host.    Host means to aid, conduct, allow, entertain, organize, supervise, control, or overtly permit a gathering or event.

Liquor. Liquor as defined by Title 18 – Pennsylvania Crimes Code Section 6310.6

Malt or brewed beverages. Malt or brewed beverages as defined by Title 18 — Pennsylvania Crimes Code Section 6310.6

Person. Person means any individual, partnership, co-partnership, corporation, or any association of one or more individuals.

Police Service Costs. Police Service Costs means the cost to the Borough of State College for police services rendered in responding to a call at a nuisance gathering or otherwise maintaining order and public peace and safety and stopping public disturbances at a nuisance
gathering, including, but not limited to, the salaries and other compensation of police officers, appropriate administrative costs allocable thereto, the cost of repairing damaged Borough of State College equipment and property, and the cost of any medical treatment of injured police officers. The cost for salaries and other compensation of police officers plus the administrative costs shall be established annually by the Borough of State College Finance Department. Cost of
repairing damaged equipment and the cost of any medical treatment of injured police officers shall be based on actual costs.

Premise. Premise means any home, yard, fraternity house, farm, field, land, apartment, condominium, hotel or motel room, or other dwelling unit. or a hall or meeting room, park, or any other place of assembly,public or private, whether occupied on a temporary or permanent basis, whether occupied as a dwelling or specifically for a party or other social function, and whether owned, leased, rented, or used with or without permission or compensation.

Underage Person. Underage person is any individual under twenty-one (21) years of age.

Section 1004. Declaration of nuisance gathering. An event or gathering that results in one or more of the following illegal activities at a premise or on neighboring public or private property is hereby declared to be an unlawful public nuisance as defined herein:

a.  Excessive, unnecessary, or unreasonably loud noise which does or is likely to disturb the comfort, quiet, or repose of the neighborhood  (Section 5503 of the Pennsylvania Crimes Code – Title 18) and/or (Chapter V, Part A, Section 103 of the Borough of State College
Codification of Ordinances); or

b.  Public disturbances, brawls, fights, or quarrels or Indecent or obscene conduct (Section 5503 of the Pennsylvania Crimes Code – Title 18); or

c.  Open container – (Chapter V, Part C., Section 302 c. of the Borough of State College Codification of Ordinances); or

d.  Purchase, consumption, possession, or  transportation of Liquor or Malt or Brewed beverages (Section 6308 of the Pennsylvania Crimes Code -Title 18); or

e.  Public drunkenness (Section 5505 of the Pennsylvania Crimes Code – Title 18); or

f.  Public urination or defecation (Section 5503 of the Pennsylvania Crimes Code – Title 18); or

g. Unlawful sale, furnishing, or consumption of intoxicating beverages (Section 6310.1 of the Pennsylvania Crimes Code – Title 18); or,

h. Unlawful deposit of trash or litter – Section 6501 of the Pennsylvania Crimes Code (Title 18); or

I. Criminal mischief (Section 3304 of the Pennsylvania Crimes Code -Title 18); or

j. Sale, manufacture, possession of any controlled substances as defined in The Controlled Substance, Drug, Device and Cosmetic Act” Act of 1972, P.L. 233, No. 64; or

k.  Open lewdness or indecent exposure (Section 5901 or Section 3127 of the Pennsylvania Crimes Code – Title 18); or

1.  Other illegal conduct or condition which injures, or endangers the safety, health, or welfare of the neighborhood.

Section 1005. Prohibited Act. Any premise owner, occupant, tenant, or other person having any possessory control, individually or jointly with others, of any premise who sponsors, conducts, hosts, invites, or overtly permits an event or gathering that at any time of the event or gathering to become an unlawful public nuisance as defined in Section 4 is hereby deemed to have committed a violation of this section.

Section 1006. Penalty for violation.

(a) Any person who violates Section 5 is guilty of a summary offense punishable a fine of not less than $300 nor more than $600 or by imprisonment for not more than 30 days, or both.

(b) For a second or subsequent violation of Section 5 in a l2-month period, the person is guilty of a summary offense punishable by a fine of not less than $500 nor more than $1,000 or by imprisonment for not more than 90 days, or both.

(c) A criminal penalty provided for under subsections (a) and (b) of this section may be imposed in addition to any penalty that may be imposed for any other criminal offense arising from the same conduct.

Each act of violation and every day upon which such violation occurs shall constitute a separate offense.

Section 1007. Payment for Police Service Costs Required. Any premise owner, occupant, tenant, or other person having any possessory control, individually or jointly with others, of any premise who sponsors, conducts, hosts, invites, or overtly permits an unlawful public nuisance
event or gathering shall pay the police service costs for the response, investigation, documentation, and prosecution of the second and any subsequent unlawful public nuisance events or gatherings within a 180 day period of time.

Section 1008. Notice of Police Service Costs. Whenever the police are called to respond to and declare a property in violation of this ordinance, a representative of the Police Department shall notify the owner of the private property where the nuisance gathering took place
and also the Person in Charge (PIC) of such property if the owner has designated a “PIC” in accordance with the Borough of State College’s Property Maintenance Code (Chapter IV, Part L, Section 1204, Chapter 9, Section 901.2), by regular mail at the last known address of such owner
and/or Person in Charge. This notification will include at a minimum that the police identified a nuisance gathering at the owner’s property and that if the police are again called to respond to a nuisance gathering at such property within 180 days after their initial response, such owner shall be required to pay police service costs to the Borough of State College for such responses.

Section 1009. Collection of Police Service Costs. For the second and all subsequent responses to unlawful public nuisance events or gatherings within 180 days as provided for in Section 7 of this Ordinance, the Chief of Police or his/her duly authorized designee shall notify the Borough of State College Finance Department in writing of the name and address of the owner of the private property where the nuisance gathering took place, the dates of the initial and subsequent
response(s), and necessary details related to the billable costs as listed in Section 3, (f) for the subsequent response. The Borough of State College Finance Director or his/her duly authorized designee shall then bill the owner for the appropriate amount and which shall be due and payable to the Borough of State College within thirty (30) days of such billing.

Section 1010. Failure to Pay Police Service Costs. Any police service costs which have not been paid within thirty (30) days of the billing therefore maybe collected, together with a penalty of ten percent (10%) thereof and interest at the rate of ten percent (10%) per annum added thereto, by civil action against the owner and/or may be imposed or assessed against the owner’s private property as a municipal claim as provided by law.

Section 1011. Severability. If any section, subsection, sentence, clause, phrase, word, or other portion of this ordinance is, for any reason, held to be unconstitutional or invalid, in whole, or in part, by any court of competent jurisdiction, such portion shall be deemed severable, and such unconstitutionality or invalidity shall not affect the validity of the remaining portions of this ordinance, which remaining portions shall continue in full force and effect.

SECTION 3. Effective Date. This ordinance shall take effect thirty (30) days following its final passage and adoption.

STATE COLLEGE — Council on Monday began to look at a “nuisance gathering ordinance” intended to give police a new way to cite hosts with summary offenses if their guests break the law.

Police Chief Tom King told council the intent is not to replace laws but to add to what police have to work with now.

“We’re looking for additional ways for a local ordinance to supplement the crimes code,” he said. “When we can’t absolutely prove who furnished the alcohol … then tenants or property owners are responsible.” (more…)

By Peter Goldberger and Anna Durbin

The forum held in Marshall Auditorium on Friday evening, September 4, provided an opportunity for students to air some of their questions about legal issues arising in the wake of the previous night’s State Police “alcohol awareness” raid on an indoor-outdoor party at Lloyd Hall. As career criminal defense lawyers and longtime friends of Haverford College (one of us an alum from the Class of 1971 and the other an experienced local attorney for many arrested students over the last decade), we were invited to participate in the forum as legal resources. This op-ed shares some of what we had to say. The reader must understand, however, that all of the information in this column is necessarily very general and superficial; it is no substitute for individual, confidential legal counseling, tailored to the facts and circumstances of a particular person’s situation.

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McGINLEY FILED: July 27, 2009

The Department of Transportation, Bureau of Driver Licensing (DOT)

appeals the order of the Court of Common Pleas of Lackawanna County (trial

court) which sustained the appeals of Sean Robert Guinan (Guinan) from two

consecutive ninety day suspensions¹ of his driver’s license pursuant to Section

1532(d) of the Vehicle Code (Code), 75 Pa.C.S. §1532(d).² The trial court ordered

that the two ninety day suspensions be served concurrently.

¹ The trial court consolidated the appeals for hearing but issued two separate orders. DOT appealed each order.  This Court consolidated the two appeals.

² Section 1532(d) of the Code states in pertinent part as follows:

The department shall suspend the operating privilege of any person upon receiving a certified record of the driver’s conviction, adjudication of delinquency or admission into a preadjudication program for a violation under 18 Pa.C.S. § 6307 (relating to misrepresentation of age to secure liquor or malt or brewed beverages), 6308 (relating to purchase, consumption, possession or transportation of liquor or malt or brewed beverages) or 6310.3

(Footnote continued on next page…)

By official notice dated July 15, 2008, DOT informed Guinan that his operating privilege was suspended for ninety days effective August 19, 2008, as a result of his violation of Section 6310.3 of the Crimes Code, 18 Pa.C.S. §6310.3, (relating to carrying a false identification card) on June 14, 2008. Also, by official notice dated July 15, 2008, DOT informed Guinan that his operating privilege was suspended for ninety days effective November 17, 2008, as a result of his violation of Section 6308 of the Crimes Code, 18 Pa.C.S. §6308, (relating to underage drinking) on June 14, 2008. Guinan appealed both suspensions to the trial court.

 At a de novo hearing, DOT introduced a packet of documents certified by the Director of the Bureau of Driver Licensing.  The packet contained the official notices of suspensions; the reports of a court ordering the suspensions; and Guinan’s driving record. Guinan challenged the length of the suspensions. His attorney argued that the two ninety day suspensions should be concurrent rather than consecutive. DOT’s attorney argued that the trial court did not have the discretion to make the suspensions concurrent.

The trial court ordered DOT to reinstate the suspension of Guinan’s operating privileges and ordered the two suspensions to run concurrently for a total period of ninety days. The trial court reasoned:

(continued…)

(relating to carrying a false identification card).  The duration of the suspension shall be as follows:

(1) for a first offense, the department shall impose a suspension for a period of 90 days.

Under the fair reading of the statute it appears that the Court has the discretion as to whether or not the suspension shall read consecutive or concurrent and the Court in the exercise of that discretion determined that basic fairness required that the two ninety (90) day suspensions run concurrent for a total of ninety (90) days.

Trial Court Opinion, February 27, 2009, at 2; Reproduced Record at 53a.

DOT contends that the trial court erred as a matter of law when it ordered the suspensions to run concurrently because DOT is required to impose all operating privilege suspensions consecutively.³

DOT asserts that under Section 1544 of the Code, 75 Pa.C.S. §1544(b), prohibits concurrent suspensions. Section 1544(b) of the Code provides:

(b) Additional suspension.—When any person’s record shows an additional suspension of the operating privilege assessed during a period of suspension or revocation, the department shall extend the existing period of suspension or revocation for the appropriate period and the person shall be so notified in writing.

In Xenakis v. Department of Transportation, Bureau of Driver Licensing, 702 A.2d 572 (Pa. Cmwlth. 1997), this Court addressed a similar factual situation. Markos Jason Xenakis (Xenakis) was convicted on October 4, 1995, for violating Sections 6307, 6308, and 6310.3 of the Crimes Code, 18 Pa.C.S. §§6307, 6308, and 6310.3. Section 6307 relates to misrepresentation of age to secure

3

This Court’s review is limited to determining whether the trial court’s findings are supported by competent evidence, whether errors of law were committed, or whether the trial court committed an abuse of discretion.  Department of Transportation v. Renwick, 543 Pa. 122, 669 A.2d 934 (1996).

liquor, malt, or brewed beverages.  Sections 6308 and 6310.3 are the same sections

that Guinan violated. For each conviction, Xenakis received a notice from DOT

that his operating privilege was suspended for a ninety day period. Xenakis

appealed to the Court of Common Pleas of Allegheny County.  Xenakis argued

that because each conviction arose from the same incident that only one ninety day

suspension was warranted under Section 1532(d) of the Code, 75 Pa.C.S.

§1532(d). Xenakis also argued that he had already served one hundred twenty

days of a suspension. The Court of Common Pleas of Allegheny County sustained

the appeal and determined a single ninety day suspension was proper because the

charges arose from a single incident and Xenakis had already served his

suspension. Xenakis, 702 A.2d at 573-574.

DOT appealed to this Court and contended that under Section 1532(d)

of the Code it was required to impose a ninety day suspension for each conviction.

Xenakis, 702 A.2d at 574. This Court agreed and reversed:

Section 1532(d) further provides that the term of suspension for a first offense is 90 days; one year for a second offense; and two years for a third or subsequent offense. The section also provides that multiple suspensions are to be served consecutively.

Licensee [Xenakis] was convicted of three separate offenses related to an incident that occurred on September 27, 1995.  Separate 90-day suspensions are warranted where each offense is characterized separately and none of the offenses are lesser-included offenses of the others. . . . . . . . Licensee [Xenakis] violated Section 6307 of the Crimes Code when he presented himself to a licensed dealer, distributor or other person and falsely represented that he was 21 years of age or older in order to obtain alcoholic beverage. Licensee [Xenakis] violated Section 6308 when, among other things, he purchased and consumed an alcoholic beverage. He violated Section 6310.3 by carrying an identification card that falsely identified the name, age, date of birth or photograph of Licensee [Xenakis] as being 21 years of age or older.  Different offers of proof are required to convict under each of the offenses, which by their terms are separate and distinct. . . . . Here, DOT did not use an enhancement provision but instead imposed a first offense 90-day suspension for each violation. Each conviction arising from a separate act merits punishment . . . and under Section 1544(b) of the Vehicle Code, 75 Pa.C.S. § 1544(b), all suspensions imposed upon a licensee’s operating privilege are to be served consecutively. . . .

. . . . Because Licensee was convicted for three separate and distinct violations of the Crimes Code, DOT had the authority to impose consecutive 90-day suspensions. (Citations omitted).

Xenakis, 702 A.2d at 574-575.

Similarly, in Department of Transportation, Bureau of Driver

Licensing v. Gonzalez, 543 A.2d 231 (Pa. Cmwlth. 1988), this Court held that

suspensions for two DUI convictions could not be served concurrently because

Section 1544 of the Code, 75 Pa.C.S. §1544, required that mandatory periods of

suspension be served consecutively.

Here, Guinan was convicted of two offenses which this Court in

Xenakis determined were separate not lesser included offenses.  This Court has

consistently held that two separate offenses necessitate two periods of suspension.

This Court has further determined that under Section 1544(b) of the Code, 75

Pa.C.S. §1544(b), these suspension periods must be served consecutively and not concurrently. Consequently, the trial court erred when it ordered that DOT apply the suspensions concurrently.

Accordingly, this Court reverses.

BERNARD L. McGINLEY, Judge

Attorney Andrew Shubin called the case “doomed from the beginning,” yet a Daily Collegian photographer faced misdemeanor charges for months after the October 2008 downtown State College riot.
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STATE COLLEGE — Remember the fallout surrounding the student-created holiday “State Patty’s Day” in February?

Bars attracted a lot of students during State Patty’s Day, but also the attention of liquor control enforcement.

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On Oct. 25 last year, thousands of students rushed into Beaver Canyon to celebrate Penn State’s victory over rival Ohio State.

We didn’t know it, but the First Amendment was on the line.

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July 27, 2009

PENNSYLVANIA — A photographer at Pennsylvania State University’s Daily Collegian was cleared of his remaining failure to disperse charge July 22 in a pre-trial motion after he was arrested last fall while covering a post-football-game riot.

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