BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2001-2002 Regular Session B
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AB 1941 (Havice) 1
As Amended May 15, 2002
Hearing date: June 25, 2002
Government Code
SH:mc
RAVE PARTIES :
LOCAL PERMITS/NOTIFICATION OF LOCAL LAW ENFORCEMENT
HISTORY
Source: California Narcotic Officers' Association
Prior Legislation: SB 2184 (Soto) - 2000 - held in Assembly
Appropriations Committee
Support: California Peace Officers' Association; California
Police Chiefs Association; League of California Cities;
Attorney General; City of Lakewood
Opposition:American Civil Liberties Union; Center for Policy
Reform
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUES
THE CALIFORNIA CONSTITUTION PROVIDES THAT A COUNTY OR CITY MAY
MAKE AND ENFORCE WITHIN ITS LIMITS ALL LOCAL, POLICE, SANITARY,
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AND OTHER ORDINANCES AND REGULATIONS NOT IN CONFLICT WITH
GENERAL LAWS.
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WHERE A LOCAL ORDINANCE REQUIRES A PERMIT FOR SUCH EVENTS:
SHOULD LOCAL PERMIT GRANTING AUTHORITIES BE REQUIRED TO NOTIFY THE
LOCAL LAW ENFORCEMENT AGENCY WHEN IT IS CONSIDERING GRANTING A
PERMIT FOR A RAVE PARTY, AS DEFINED?
SHOULD THE LOCAL AUTHORITY REQUIRE THE PROMOTER TO PRESENT EVIDENCE
THAT THE PROMOTER IS SUFFICIENTLY KNOWLEDGEABLE ABOUT ILLEGAL DRUGS
AND DRUG PARAPHERNALIA TO RECOGNIZE THEIR PRESENCE AT THE EVENT?
SHOULD PROMOTERS BE REQUIRED TO APPLY FOR ANY REQUIRED PERMIT NOT
LESS THAN 30 DAYS PRIOR TO THE EVENT AND, PRIOR TO THE ISSUANCE OF
THE PERMIT, TO ACKNOWLEDGE IN WRITING THAT HE OR SHE OR HIS OR HER
AGENTS WILL NOT PERMIT, CONDONE, OR IGNORE VIOLATIONS OF STATE AND
LOCAL LAWS REGARDING THE PRESENCE, POSSESSION, SALE, OR USE OF DRUGS
AND DRUG PARAPHERNALIA AT ANY EVENT COVERED BY THE PERMIT?
PURPOSE
The purpose of this bill is to require that where local permits
are required for a "rave" event, specified requirements proposed
in this bill are followed.
Existing law provides that the police power is the inherent
authority of sovereign governments to regulate private behavior
in the public interest, consistent with constitutional rights
and procedures. The California Constitution delegates the
police power to cities and counties to "make and enforce within
[their] limits all police, sanitary, and other ordinances and
regulations not in conflict with general laws. (Article XI,
section 7, California Constitution.)
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This bill does the following:
Defines "rave party" for the new section added by this bill to
mean any electronic music dance event of the type commonly
referred to as rave parties that may be attended by 500 or
more persons.
Provides that in any jurisdiction where a permit is required,
the promoter of a rave party shall apply to the local permit
granting authority for a permit not less than 30 days prior to
the scheduled event, and, at the same time, shall notify the
local law enforcement agency having jurisdiction over the
venue of the proposed event.
Requires the promoter to:
(1) include in the permit application a list of all
applications that the promoter has submitted for a permit
to conduct a rave party within the previous 12-month
period.
(2) include an affirmative statement that the promoter
understands that the listing of previous applications is
correct to the best of the promoter's knowledge and that
submission of false misleading information may be grounds
for denial of a current and future permits.
Requires any local permit granting authority to:
(1) notify the local law enforcement agency having
jurisdiction over the proposed location of the event when
it is considering whether or not to grant a permit for a
rave party.
(2) require the promoter of the event to present evidence
before the issuance of the permit showing that the promoter
is sufficiently knowledgeable about illegal drugs and drug
paraphernalia that they or their agents can recognize the
presence of drugs and drug paraphernalia at the event.
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Requires that prior to the issuance of the permit, the
promoter of the rave party shall acknowledge in writing that
he or she or his or her agents will not permit, condone, or
ignore violations of state and local laws regarding the
presence, possession, sale, or use of drugs and drug
paraphernalia at any event covered by the permit.
COMMENTS
1. Need for This Bill
According to the author:
It is my sincere belief that our children are facing an
ever changing and often dangerous world. In authoring this
bill, I know I am doing my part to help protect all
children by limiting our children's access to drugs.
2. Additional Background
According to background information provided by the author, rave
parties are common, and the promoters of these events sometimes
obtain permits from local authorities in order to hold the
events. Many of the rave parties have a high incidence of drug
use including, but not limited to,
ecstasy, GHB, ketamine, methamphetamine, and LSD. Promoters of
the rave parties, according to the sponsor, are often ignorant
of or chose to ignore the use of drugs and the possession of
drug paraphernalia at the events. This bill is designed to give
law enforcement advance notice of the rave parties so they can
address illegal drug use and to make promoters take written
responsibility for preventing drug use.
The Assembly Local Government analysis of this bill contains the
following comments:
(1) "Raves" are all night dance parties sometimes attended
by as many as 20,000 youths who dance to repetitive
electronic music played by disc jockeys. Raves first
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appeared in Britain and the United States in the mid-1980s
and have since spread to other countries. Raves are noted
for their liberal use of drugs such as
3,4-methylenedioxymethamphetamine (MDMA; "ecstasy") and
gamma-hydroxybutyrate (GHB).
(2) Because alcohol is often not available at raves there
is usually no age restriction on admission. Raves
typically last all night and are held at different venues
each time. Originally, raves were held at clandestine
locations such as farmers' fields, with news of the
location released just hours before the event in an attempt
to deter police surveillance. More often now raves are
held in legal spaces such as concert halls, underground
parking lots and warehouses.
(3) According to the U.S. Department of Drug Enforcement,
"Paraphernalia used at rave parties include menthol nasal
inhalers, Vicks Vapor Rub, eye drops, surgical masks, and
glow sticks (to enhance the visual effects of Ecstasy).
These items are frequently accompanied by Skittles, M&Ms,
or similar candy containers (to hide the drug); lollipops
and pacifiers (to prevent involuntary teeth clenching);
water, juice, sports drinks, and soft drinks (sold at
inflated prices and used to manage excessive body heat and
dehydration); and drug testing kits to allow rave-goers to
test the purity of the drug."
(4) Club drugs have become such an integral part of the
rave circuit that there no longer appears to be an attempt
to conceal their use. An unscientific poll of a group of
19 year-olds, who themselves have attended rave parties,
indicates that it has also become commonplace for security
personnel at these parties to ignore drug use and sales on
the premises. Many teens do not perceive these drugs as
harmful or dangerous despite the fact that overdoses or
impurities have resulted in severe injuries and death.
3. Support From the Sponsor
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The California Narcotic Officers' Association letter includes
the following:
The California Narcotic Officers' Association is pleased to
be the sponsor of AB 1941. This is very simple legislation
- it merely provides that when a local permitting authority
is considering a request from a promoter to conduct a
"Rave" party (defined as an electronic music dance event to
be attended by 500 or more persons) that permitting
authority must notify local law enforcement of the pending
application. The bill also requires the promoter to
present evidence that he/she is knowledgeable concerning
the various drugs and drug paraphernalia and that the
promoter will not condone or ignore violations of the law
concerning the presence of such drugs at the event.
"Raves" are basically giant dance parties featuring loud,
pulsating "techno" music. These parties can have dozens of
participants or thousands.
Some "raves" are pricey, some cost next to nothing to get
into, but all rely on skilled DJs to keep the music and
energy at the highest level possible right through the
night, and often on into the next morning - and generally
speaking, these parties are alcohol-free. However, that
does not mean they are drug-free.
Not everyone who attends raves uses drugs; many go just for
the music and for the experience. But other "ravers" say
no one will go to a club unless drugs are readily
available, and even many "rave" web sites make clear that
drugs should be viewed as an accepted part of the scene.
The so-called "club drugs" include Ecstasy (the street name
for MDMA), which appears to be the most popular "club
drug". The drug is also highly profitable for dealers. Drug
enforcement officials say it costs less than a dollar to
make a single dose of Ecstasy, but it has been found
selling on the streets and in clubs for as much as $30 a
dose. That profit margin, along with the fact that the
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penalties for trafficking in Ecstasy remain light in
comparison with other drugs, could be driving increased
production of the drug - in 1993, law enforcement officials
seized 300,000 Ecstasy pills; last year they seized 3.5
million, and they've seized almost that much already this
year. Even former mob hitman Salvatore "Sammy the Bull"
Gravano allegedly has gotten into the act - he was recently
arrested in Arizona on charges he was operating a ring
providing more than 100,000 Ecstasy pills a month.
Ecstasy is not the only "club drug;" others include LSD,
GHB, the animal tranquilizer Ketamine or "Special K," and
methamphetamine. In addition, the "date rape" drug
Rohypnol is something that can harm unsuspecting "ravers".
This generally tasteless and odorless drug can be slipped
into beverages where it will easily dissolve, and those
given the drug may not remember events they experience
while under its influence.
Not every drug will be found at every "rave," nor will
drugs be found at every "rave." However, it is fair to say
there's a good chance drugs will be present. By more
closely involving law enforcement in the permitting process
and by requiring that the promoter become more engaged in
what happens at the event they are promoting, AB 1941 hopes
to reduce that possibility.
4. Possible Issues Raised by This Bill
This bill does not require local permits for any events whether
a "rave" or not. It does require specific actions if a local
ordinance is required for the events - "raves" - specified in
this bill. It may or may not be that local music activities do
require local permits but that those events are not referred to
as a "rave" but the definition would include the event within
the purview of this bill. For example, there are numerous local
permit requirements imposed by cities and counties for events
and it would presumably be required that if such an event
locally was for a "rave" as defined in this bill, then the local
entity permit would have to meet the requirements of this bill.
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It also may be that this bill will encourage local entities -
possibly including colleges and others entities that are not a
city or county - to try to create permitting requirements for
"raves" whether by name or by category of event, i.e., musical
events with electronic music. It also may not be clear whether
the definition of "rave" party used by this bill is sufficiently
precise, e.g., "the type commonly referred to," or how a
promoter will be able to prove sufficient knowledge about
illegal drugs or paraphernalia and whether or not that
requirement could or would be abused by anyone.
Regardless, Americans do enjoy constitutionally protected rights
to free speech and other expressive activities. While this bill
does not on its face attempt to "ban" raves, it does provide
specific requirements to be met to obtain a permit for a rave,
including requirements on the promoter to both prove knowledge
of drugs and that he or she will not "permit, condone, or ignore
violations of drug law."
There have been some court cases that have considered special
requirements on specific musical events. For example, in
Cinevision Corp. v. City of Burbank 745 F.2d 560, 571 (9th Cir.
1984), the court found that (footnotes omitted):
The Supreme Court has consistently held that expression
beyond that of pure speech is protected by the first
amendment. "Entertainment, as well as political and
ideological speech, is protected; motion pictures, programs
broadcast by radio and television, and live entertainment,
such as musical and dramatic works, fall within the First
Amendment guarantee." Schad v. Borough of Mt. Ephraim, 452
U.S. 61, 65, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981) (nude
dancing). Other Circuits and district courts presented
with the issue have held, and we agree, that music is a
form of expression that is protected by the first
amendment. Therefore, "if the [City Council] passed an
ordinance forbidding the playing of rock and roll music . .
., they would be infringing a First Amendment right . . .
even if the music had no political message -- even if it
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had no words -- and the defendants would have to produce
a strong justification for thus repressing a form of
'speech.'" Reed v. Village of Shorewood, 704 F.2d 943, 950
(7th Cir. 1983) (citations omitted).
? The City suggests that because Cinevision does not seek
to "express" its views, it has no first amendment right to
promote concerts for profit. However, even though concert
promoters generally promote concerts for profit, they still
enjoy the protections of the first amendment. See, e.g.,
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02,
[*568] 96 L. Ed. 1098, 72 S. Ct. 777 (1952). In fact,
promoters of theatrical productions and concerts have
previously succeeded in challenging a municipality's denial
of access to governmentally owned property. See
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43
L. Ed. 2d 448, 95 S. Ct. 1239 (1975); Fact Concerts, Inc.
v. City of Newport, 626 F.2d 1060, 1063 (1st Cir. 1980),
rev'd on other grounds, 453 U.S. 247, 69 L. Ed. 2d 616, 101
S. Ct. 2748 (1981). Thus, under the first amendment, there
clearly are rights to promote protected expression for
profit -- including musical expression. As a promoter of
protected musical expression, Cinevision enjoys first
amendment rights.
In any event, constitutional safeguards are not applicable
only to musical expression that implicates some sort of
ideological content. Rather, all -- political and
non-political -- musical expression, like other forms of
entertainment, is a matter of first amendment concern.
Consequently, promoters of musical expression of all types
enjoy the protections of the first amendment.
?We hold that live musical expression is protected by the
first amendment. We also hold that Cinevision enjoyed a
first amendment right to promote concerts.
? Governmental regulation of a place determined to be a
public forum is limited by the constraints of the first
amendment. See generally Kalven, The Concept of the Public
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Forum: Cox v. Louisiana, 1965 S. Ct. Rev. 1 (discussing the
development of the public forum doctrine).
? Here, although the prohibitions against the concerts are
content-related, there are neither compelling state
interests that justify the City's denial of access to the
Starlight Bowl, nor narrowly drawn standards designed to
prevent arbitrary decision-making. See Perry Education
Association, 460 U.S. at 45-46 (citation omitted). The
contract involved in this case provides an overbroad
standard for the City Council's disapproval of the proposed
concerts: a proposal may be disapproved if it has "the
potential of creating a public nuisance or . . .would
violate any State law or City ordinance." (emphasis added).
n12 That standard does not adequately limit the discretion
of the City Council in approving or disapproving the
proposals. Thus, it fails to meet the requirements of the
first amendment. See Board of Education (Island Trees) v.
Pico, 457 U.S. 853, 864-65, 73 L. Ed. 2d 435, 102 S. Ct.
2799 (1982) (plurality opinion). Moreover, almost all of
the expressed objections to the proposed concerts centered
on the content of the music -- it was "hard rock" music
that the City Council wanted to exclude from the Starlight
Bowl. n13 The City of Burbank has demonstrated no
compelling state interest to justify its content-based
suppression of protected musical expression.
?in addition, a general fear that state or local narcotics
or other laws will be broken by people attending the
concerts cannot justify a content-based restriction on
expression. See, e.g., Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 555, 43 L. Ed. 2d 448, 95 S. Ct. 1239
(1975); Gay Students Organization v. Bonner, 509 F.2d 652,
662 (1st Cir. 1974). "In our system, undifferentiated fear
or apprehension of disturbance is not enough to overcome
the right to freedom of expression." Tinker v. Des Moines
Independent Community School District, 393 U.S. 503, 508,
21 L. Ed. 2d 731, 89 S. Ct. 733 (1969). Normally, law
enforcement officers can deal adequately and effectively
with unlawful activity of that nature at the time it
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occurs. That is a proper exercise of the police power;
censorship is not. Even if the performers planned to
advocate unlawful, subversive activities, which the City
has not alleged here, that expression could only be
suppressed if it were directed at producing, and were
likely to produce, imminent lawless action. See, e.g.,
Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430,
89 S. Ct. 1827 (1969).
While the court in Cinevison Corp was addressing a complete ban
on certain musical activity in a publicly owned forum, the
court's decision does establish the First Amendment rights of
commercial promoters and that a fear of narcotic's law
violations cannot be used to justify "content-based
restrictions" on protected expressions (the court mentioned
equal protection issues as well but said that those need not be
addressed given the free speech issues). This bill does not
contain a complete ban on raves, but it does place some unique
restrictions on rave musical events. Whether or not those
restrictions would be found unconstitutional it is certainly
possible.
ARE THE REQUIREMENTS ON "RAVE PARTY" PROMOTERS PROPOSED BY THIS
BILL OF THE KIND LIKELY TO BE FOUND UNCONSTITUTIONAL AS
VIOLATIVE OF FREE SPEECH RIGHTS?
ARE THE PROVISIONS OF THIS BILL SUFFICIENTLY CLEAR TO BE APPLIED
FAIRLY BY LOCAL PERMITTING AUTHORITIES?
IS THE DEFINITION OF "RAVE PARTY" IN THIS BILL SUFFICIENTLY
CLEAR THAT LOCAL PERMITTING AUTHORITIES WOULD BE ABLE TO APPLY
IT EVEN IF THE LOCAL ORDINANCE DOES NOT USE THE TERM ITSELF?
5. Opposition to This Bill
The ACLU writes in opposition to this bill that:
The ACLU regrets to inform you of our opposition to AB 1941
concerning permit requirements for electronic music events.
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AB 1941 singles out electronic dance music events for a
higher level of governmental scrutiny and a more difficult
permit process. Other events, such as a heavy metal party,
a wedding party, or a religious concert would not trigger
the same higher level of scrutiny and difficulty. The
government cannot be in the business of deciding what kind
of parties it likes or what kind of music constitutes a
"threat." That's unconstitutional and discriminatory.
AB 1941 also results in a vague, standardless process, a
process that opens the door to abuses. Among other things,
it requires that promoters of a rave party "present
evidence before the issuance of the permit showing that the
promoter is sufficiently knowledgeable about illegal drugs
and drug paraphernalia. ..." This requirement is so vague
and broad that it gives no clear standard or guidance to
the government officials granting permits, thus opening the
door to arbitrary decisions and abuses.
There has been a growing law enforcement movement across
the nation to crack down on raves and to control and shut
down this unique cultural space. Police departments and
other governmental authorities have all begun to take steps
toward criminalizing and closing down the rave scene
because some attendees use the drug Ecstasy. However, that
approach is tantamount to shutting down rock concerts in
the 1960s or jazz clubs in the 1920s because some people
are using drugs. We urge reconsideration of this proposal.
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The Center for Policy Reform opposition letter includes:
Specifically AB 1941 would require rave promoters applying
for event permits to certify in writing that they are
sufficiently knowledgeable about drugs and drug
paraphernalia to be able to recognize their presence at the
event and that they will not condone, promote, or ignore
illegal drug behavior. Many pieces of legislation
introduced in recent terms have sought to protect young
people from the dangers of drug abuse and especially from
the use of ecstasy. AB 1941 appears to be a good faith
effort to address the same problem, but unfortunately
imposing restrictive permit requirements on rave promoters
is not an effective answer.
Most illicit drug use is by its nature undetectable and
some illicit drug use will continue to occur at dance
parties. Currently, many rave promoters are aware of the
harms associated with drug use at rave events and seek to
address these by providing onsite first aid and harm
reduction outreach counseling. Harm reduction outreach, of
the type provided by non-profit organizations like Dance
Safe, provides young people with reliable information about
the harms associated with drug use and how to minimize
them. The "zero-tolerance" requirement that promoters not
promote or condone drug use may exert a chilling effect on
these preventive measures and cause event staff to expel
kids caught using drugs from the event for fear of
liability. This, in turn, would put inebriated kids on the
streets where they would have no support in the event of an
emergency or worse, might motivate them to try driving home
while under the influence.
Finally, it is important to consider that impeding legal
raves by imposing onerous permitting requirements may have
the unintended consequence of driving rave parties
underground and into inappropriate venues where inadequate
ventilation and a lack of running water contribute
significantly to ecstasy-related emergencies.
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6. Previous Related Legislation
Senate Bill 2184 (Soto) would have prohibited a facility from
conducting a special event unless the local agency has issued
the appropriate permits, as specified. That bill was focused on
raves. The Senate Local Government Committee analysis of that
bill (hearing 5/17/00) included the following:
?Cities and counties already have the power to require
permits for special events and they already attach
conditions to these permits. Communities already ask their
police chiefs, fire marshals, building inspectors, and
public works staff to review permit applications and
suggest the needed conditions. ?
State mandate, state pays .
Although the May 11 and May 15 amendments removed the
earlier requirement for local officials to approve the
special event facilities' plans, SB 2184 still imposes new
mandates. The bill's requirement for a special event
facility to prepare a plan applies only when a city or
county requires the facility to obtain a permit. That is,
the bill increases the contents of a local permit, creating
a new state mandated local program. Further, the bill
permits local officials to ask the LEMSA to review a
facility's plan. That language implies a duty to review
the facility's plan.
Not charter cities .
The California Constitution lets charter cities such as San
Bernardino or Pomona control their own municipal affairs,
free of legislative interference. The 90 charter cities
must follow statewide laws only for issues of statewide
concern when the Legislature has fully occupied the field.
The courts -- not the Legislature -- interpret the
Constitution and decide what's a municipal affair and
what's an issue of statewide concern. SB 2184 does not
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apply to charter cities. If the Committee wants the bill
to apply to charter cities, then
it should insert a specific declaration that the
Legislature considers the need for multifunctional
emergency medical services plans to be an issue of
statewide concern, and insert a persuasive recital of
legislative findings to bolster that claim. Even then, the
courts must agree.
7. Double Referral of This Bill
This bill is double referred to the Senate Local Government
Committee if it passes this committee.
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