San Diego's city attorney and City Council failed to consider a not-so-minor detail when they drafted and passed an ordinance designed to curb underage drinking. The overlooked item: the United States Constitution.
On Oct. 7, three judges from the Superior Court's Appellate Division issued a unanimous ruling in favor of Derek Blithe, 22, a University of San Diego student charged with violating the city's "social host" ordinance last November. The judges indicated that the law is unconstitutional because it violates both the Fifth and 14th Amendments, prohibiting government from depriving any person of life, liberty or property, without due process of law.
The social host ordinance makes it a misdemeanor for a person to host a party "where three or more minors are present and alcoholic beverages are being consumed by any minor." Although it excludes religious occasions and minors who drink at home in the company of a parent or guardian, it imposes steep penalties-a maximum of six months in jail and a $1,000 fine-on violators. However, the court took issue with the fact that hosts do not have to take any criminal action to break the law.
Blithe, whose case was profiled in the July 21 issue of CityBeat shortly after the appellate court agreed to hear his appeal, was arrested after police broke up a November dinner party at his South Mission Beach apartment. According to the police report, six minors were present at the party and two underage girls were drinking alcohol. However, Blithe contends he did not invite the girls, know that they were minors or serve or furnish the alcohol.
The court's decision put the burden of defending the ordinance on the city attorney and its fate into question. After oral arguments and weeks of deliberation, judges issued a 10-page decision agreeing with Patrick Dudley, Blithe's attorney, that the ordinance fails to meet existing legal standards for due process. The court also expressed concern that the ordinance imposes excessive penalties and criminalizes the right of peaceful assembly guaranteed by the First Amendment.
"The language of the ordinance does not create a duty on social hosts to prevent minors from consuming alcohol," wrote Judge Louis Hanolan, explaining that because the ordinance doesn't require the host to invite the minor, be aware of the minor's presence or that the minor is consuming alcohol, the host can't be expected to control the minor's conduct. Hanolan notes that even if a minor crashes a party, the ordinance says that "the host is criminally liable for the illegal drinking of the trespassing minor." Under a literal reading of the ordinance, the host doesn't even have to be aware of a party on his or her property to be liable for the minor's acts.
Hanolan used the Tom Cruise movie Risky Business to illustrate the last point, writing that if San Diego's ordinance applied to the party thrown by Cruise in his parents' home-he turns it into a brothel for his peers without his parents' knowledge or permission-his parents could still be held criminally liable.
David Steinberg, a professor at California Western School of Law, says the decision "makes the ordinance unenforceable" and puts the fate of approximately 35 individuals currently charged with violating it in legal limbo. He says the city can either decline to reenact the ordinance and drop all pending charges, rewrite the ordinance in a way to make it consistent with the ruling and terminate ongoing prosecutions or appeal to the 4th District Court of Appeals and have the cases stayed pending its decision.
According to a statement issued by City Attorney Casey Gwinn on Monday, the social host ordinance is temporarily on hold and any future decisions regarding its fate will require City Council approval. A decision is expected within the next 30 days. Meanwhile, the San Diego Police Department will no longer enforce the ordinance.
As for those already convicted, Steinberg says opinions of this nature rarely apply retroactively.
"Apparently there are about 20 convictions on this," says Dudley. "[Those people] are screwed. They get a misdemeanor or an infraction on their record for violating a law that isn't valid. That doesn't seem right."
Steinberg adds that the Appellate Court's decision may also leave the city vulnerable to civil suits from individuals claiming that their constitutional rights were violated under the ordinance. "That is certainly a possibility here," he says. "Now the point is, what damages are you going to be able to prove?"But lawsuits could be just the tip of the iceberg. Because San Diego's ordinance-purportedly the first passed by a major California city-was held up as a model for other jurisdictions, the court's ruling could affect similarly written ordinances throughout California, including those passed by Encinitas, El Cajon and National City and the county of San Diego.