ACLU to challenge nuisance ordinance

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.

The ACLU letter, from staff attorney Valerie Burch to council President Elizabeth Goreham, says the ordinance’s “liability scheme … runs roughshod over and through well-established constitutional rights.” If the borough passes the ordinance, Burch says in the letter, the ACLU of Pennsylvania will entertain requests to challenge it in court.
Goreham said Saturday that the ACLU letter “casts a shadow over that ordinance and we really need to look for another way — this is apparently not the way.”
The proposed ordinance was modeled after similar ones adopted recently in two other college towns — Michigan State University’s hometown in East Lansing and Bloomsburg, home of Bloomsburg University, borough Police Chief Tom King told council.
The State College proposal says the host of a gathering of 10 or more people may be held in violation of law and subject to summary offense fines from $300 to $600, or 30 days in jail, if the gathering results in certain illegal activities at or within 100 feet of the location.
The illegal activities of party guests that would result in nuisance gathering ordinance violations by party hosts include: excessively loud noise; brawls, fights, quarrels, obscene conduct or other public disturbances; open containers; underage drinking; public drunkenness; public urination or public defecation; unlawful furnishing of intoxicating beverages; criminal mischief; sale of controlled substance; and lewdness.
The ACLU said the ordinance is “overbroad.” In criminalizing the hosting of gatherings that result in illegal activities, the ACLU says, the proposal prohibits constitutionally protected activities such as political and religious meetings that may inadvertently result in illegal activities.
As an example, the ACLU cites a pre-election meeting whose hosts could be found in violation if a political opponent stands outside the meeting, shouts noisily and litters the street with handbills.
“Such an ordinance chills the right to freely associate, protected by the First Amendment,” the ACLU letter says.
The ACLU also said the proposed ordinance violates the First Amendment by holding those who exercise First Amendment rights liable for the actions of others, and by trying to shift the costs of police services to the organizer of events.
“The First Amendment does not allow government to hold an event organizer categorically responsible for the actions of others … loosely resulting from the event,” the ACLU said.
The ACLU’s third problem with the proposal centers on the right to due process under the Fifth Amendment. By punishing the host, the ACLU says, “the ordinance holds responsible those who lack both intent to act illegally and a ‘responsible relation’ to the illegal actors.”
In an interview Saturday, Burch suggested it will take more than just language tweaking to erase ACLU concerns.
“You simply can’t criminalize someone for just having a party,” she said. “You just can’t make a law that violates the U.S. Constitution, and of course the Constitution trumps the borough of State College.”
Penn State student Brett Fisher, a candidate for council in Tuesday’s election, has criticized the proposed nuisance gathering ordinance for the very reasons cited by the ACLU.
Another ordinance scheduled for a public hearing at Monday’s council meeting would change the definition of “student home” in the borough codes to make it harder for single-family homes owned by students or students’ family members to rent rooms in the home to unrelated students.
Still another proposal would specify permit uses of former fraternity houses to include community or day care centers, homes for the elderly, nursing homes, medical clinics, offices or private schools.
Council does not plan to act on either of these ordinances Monday. Final consideration is scheduled for the Dec. 7 council meeting. For more information, go to www.statecollegepa.us. Mike Joseph can be reached at 235-3910.