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chapter 8; parental responsibility (6-595-Lesk#10) ccnaeat Ordmeme amending dhow 8 Section 8-204 of t Mbm cVd CodeYeprdmgm canm liability AN ORDINANCE AMENDING CHAPTER 8 OF THE ARLINGTON HEIGHTS MUNICIPAL CODE BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF ARLINGTON HEIGHTS: SECTION ONE: That Chapter Eight of the Municipal Code of.Arlington Heights, is hereby amended by deleting Sections 8-201 (i), 8-202(c)(2)(b)andSection 8-204, all of which deal with vicarious liability, in its entirety and by renumbering Section 8-205 through 8-206 to Sections 8-204 and 8-205 respectively. SECTION TWO: This ordinance repeals all ordinances or parts of ordinances in conflict with the provisions hereof, and shall be in full force and effect after approval and publication in pamphlet form, in the manner provided by law. AYES: WALTON, HAHN, HAYES, EISENHAMMER, STENGREN, HETTINGER, BREYER, DADAY, MULDER NAYS: NONE PASSED AND APPROVED this 5th. day of June, 1995. Village Pr ent ATTEST: Village Clerk F:codeamts 8-204vclb.del 95- 0q3 Article II Underage Drinking Section 8-201 Definitions. The following words or terms, whenever used in this Article, shall have the meanings set forth below: a. Alcoholic Beverage. Any alcohol, spirits, wine and beer, and every liquid or solid, patented or not, containing alcohol, spirits, wine or beer, and capable of being consumed as a beverage by a human being. The provisions of this Article shall not apply to alcohol used in the manufacture of denatured alcohol produced in accordance with Acts of Congress and regulations promulgated thereunder, nor to any liquid or solid containing one-half of one percent or less of alcohol by volume. b. Control of Premises. A legal or beneficial ownership, rental, lease or license. Control may also exist where none of the aforesaid legal relationships apply, but where an adult is otherwise clearly in charge of and controlling a particular premises. C. Delivery of Alcoholic Liquor. The sale, gift or exchange of an alcoholic liquor from one person to another. Delivery is meant to include providing of any alcoholic liquor of whatever kind or nature from one person to another. d. False Identification. Any document used for identification or proof of age that has been altered or defaced or that contains false or misleading information or that contains a name that is not the actual name of the person using it. e. Impairment. Because of the consumption of alcoholic beverages, a diminution in a person's ability, either mentally or physically, or both, to exercise clear judgment in order to operate an automobile with safety to himself or herself and to the public. f. Operation of a Motor Vehicle. Physical control of the motor vehicle; the operation or control of a motor vehicle anywhere in the Village of Arlington Heights, whether on private or public property. To be in physical control, the person need not be actually driving the motor vehicle and the vehicle need not be running. If there is only one person inside of a motor vehicle, that person shall be presumed to be in physical control, regardless of the person's location within the vehicle. If there is only one person in a front seat or front passenger area of a motor vehicle, that person shall be presumed to be in physical control regardless of the person's location in the front passenger area. If there are persons in the vehicle, but not in the front passenger area, the owner of the vehicle or the person to whom permission was given to operate the vehicle, shall be presumed to be in physical control. g. Parent. A biological or adoptive parent or a court designated guardian. h. Underage Person. Any person under 21 years of age. f. Vicarious Liability. The habflity that is implied as a matter of law even though the perso May not have dhectly caused an in.my to anodier person. Section 8-202 Facilitating the Use of Alcoholic Beverages by Underage Persons at Residential Premises. a. It shall be unlawful to deliver any alcoholic beverage to any underage person. b. It shall be unlawful for any person to permit, on premises under his or her control, the consumption of an alcoholic beverage by an underage person. Any person in control of a premises shall be strictly liable for the consumption of an alcoholic beverage by an underage person on that premises. C. Paragraphs a and b above shall not apply in the following circumstances: 1. the performance of a bona fide religious service; 2. the delivery of an alcoholic beverage to an underage person, by that person's parent, within the home and under the direct supervision of the parent. However, the following rules shall be applied to this subsection: a) in any prosecution of an underage person for the commission of any state or local offense, the prosecutor, upon reasonable grounds, may request a ruling and the court shall rule as to whether the consumption of an alcoholic beverage as permitted by the parent was a contributing factor in the commission of the offense. If it is so determined in the affirmative, then the penalty set forth in this Article shall apply. d. Any person violating any of the provisions of this section shall be subject to the following mandatory penalties: 1. a fine not less than $5 nor more than $500; and 2. community service, not less than seven days nor more than 30 days, to be served by the minor and one of his or her parents or the person in control of the premises; and 3. either evaluation of the minor to be conducted by the Central States Institute of Addiction and attendance at classes based on that evaluation or attendance at the Alcohol/Drug Education Deferred Prosecution Program of the Third Municipal District. e. In addition to the penalties listed in subsection d above, any person violating the provisions of this section may be imprisoned for a period not to exceed six months. Section 8-203 Facilitating the Use of Alcoholic Beverages by Underage Persons at Commercial Premises. a. It shall be unlawful to deliver any alcoholic beverage to any underage person. b. It shall be unlawful for any person to permit, on premises under his or her control, the consumption of an alcoholic beverage by an underage person. Any person in control of a premises shall be strictly liable for the consumption of an alcoholic beverage by an underage person on that premises. C. Paragraphs a and b of this section shall not apply to the performance of bona fide religious service. d. Any person violating any of the provisions of this section shall be subject to a mandatory fine of not less than $5 nor more than $500. Section 8-204 Vicariow HaWity-. a. 'Hie f6flo w* - . ftff be liable for actual damages to any hi&vidual who ina b=1 jam* i. *ny person who defivered to the anderage persons any akolwfic beyffage which contributed to die iniprinymnt. The person inaldng die hiftiai deftymy to wt person iLegardless of how many times die atcolrofte beverage chmiged hands. ge is consumed on die premises by mi anderage pasmi. 3. *ny qmation of a motor vehicle under his oz hei cc), atiLdentr I ge person who was eidier impaired or had constimed any mnotint of aicohol widfin two homs, prim to when per granted shall be strictly b. The vicarious flability est"libligied by this section shaff be subject to the finfitations Section$-295204 Use of False Identification. a. It shall be unlawful for any underage person to obtain or to attempt to obtain delivery of an alcoholic beverage by use of false proof of age. If the false proof of age was an improperly used driver's license, the license will be forwarded to the Secretary of State's Office in accordance with State law. b. Any person violating any of the provisions of this section shall be subject to a mandatory fine of not less than $5 nor more than $500. Section 8-WW Operation of a Motor Vehicle by Underage Persons with an Alcoholic Beverage in or on the Vehicle or when the Underage Person is Impaired Due to Alcohol. The following shall apply when any underage person is found in the Village of Arlington Heights operating nay motor vehicle in which or on which is found any alcoholic beverage of any kind or nature, or when the underage person is in a state of impairment due to consumption of alcohol: a. The motor vehicle shall be subject to immediate impoundment by the Arlington Heights Police Department; b. The motor vehicle may be released only to another person showing proof of ownership or lease rights to the motor vehicle; however, if the underage operator is the owner or lessor of the vehicle, then the vehicle may be released only to a parent or legal guardian of the underage owner; C. The motor vehicle may not be released to any person who was a passenger in the motor vehicle at the time the alcoholic beverage was found unless at least 12 hours have passed from the time of the finding; d. The vehicle shall not be released until the person seeking the release has paid an administrative fee of$200 to the Arlington Heights Police Department, plus any towing or storage costs; e. The following factors shall=be considerations in determining whether or not to impound the motor vehicle: 1. whether the alcoholic beverage is in an opened or an unopened container; 2. whether the operator is the owner of the alcoholic beverage or the vehicle; 3. whether the operator had knowledge of the existence of the alcoholic beverage within the motor vehicle. f. The above obligations and penalties shall be in addition to the penalties that may be assessed in a court of law for any charges incident to the stop. g. Any person violating the provision of this section shall be subject to the following mandatory penalties: 1. a fine not less than $5 nor more than $500; and 2. community service, not less than seven days nor more than 30 days; 3. either evaluation of the minor to be conducted by the Central States Institute of Addiction and attendance at classes based on that evaluation or attendance at the Alcohol/Drug Education Deferred Prosecution Program of the Third Municipal District. STAFF REQUEST FOR BOARD ACTION VILLAGE BOARD MEETING DATE June 5, 1995 Agenda Section Legal- Consent Agenda Department Legal Item Ordinance Amending Chapter 8 Date Due to Village Manager May 31, 1995 BACKGROUND On March 30, 1995, the Illinois Supreme Court issued a decision on the issue of social host liability - that is, the liability of individuals serving alcoholic beverages to minors who are subsequently injured or injure others. The Court refused to adopt a theory of social host liability, saying that is "well-established law that Illinois has no common law cause of action for injuries arising out of the sale or gift of alcoholic beverages . . . and that any change in the law governing alcohol-related liability should be made by the General Assembly or not at all." 'Charles v. Siegfried, Docket Nos. 76617, 77438,March 30, 1995). The significance of this case is that the Court made it very clear that it is the sole responsibility of the State Legislature to impose civil liability in social host situations. In light of this decision by the Court, I, along with Lisa Farrington and Ernie Blomquist, took another look at the Village's Parental Responsibility Ordinance. The Village's parental responsibility ordinance imposes both quasi-criminal and civil liability on social hosts. The quasi-criminal liability was not addressed by the Court because the Court was not faced with the question of whether, pursuant to home-rule powers and police powers, a municipality may impose quasi-criminal liability on a social host. However, Section 8-204 of the ordinance provides for vicarious liability for actual damages on the part of any person who delivers alcoholic beverages to an underage person or who is in control of premises when an alcoholic beverage is consumed on the premises by an underage person or who permits the operation of a motor vehicle by an impaired underage person or one who had consumed alcohol within the prior two hours. This provision was questionable at best as to its legality when first adopted and now, under Charles, because it is in the nature of civil liability, we believe it to be within the scope of those things to be governed solely by the State Legislature. RECOMMENDATION It is recommended that the Board adopt the attached ordinance which repeals the provisions of the parental responsibility ordinance dealing with vicarious liability. With regard to the remainder of the ordinance, it is unclear whether the Court intended to reserve to the Legislature all types of alcohol-related liability or just civil liability. Therefore, it is recommended that the Village continue to prosecute under the remaining provisions of the ordinance, which are of a quasi-criminal nature. Route To: Bldg Eng Fin Fire Health Le al Prsnl Ping Police PW Mgr Approval Date