AO 2019-94 ASSEMBLY COUNSELS OFFICE JULY 2019 1. Examples of - - PowerPoint PPT Presentation

AO 2019-94

ASSEMBLY COUNSEL’S OFFICE

JULY 2019

ASSEMBLY COUNSEL’S OFFICE JULY 2019

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• 1. Examples of Anchorage Fires
• 2. Due Process
• 3. Wildfire Danger Area
• 4. Types of Notice
• 5. Reckless Use
• 6. Opportunity for Hearing

ASSEMBLY COUNSEL MAY 3, 2018

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July 2

ASSEMBLY COUNSEL’S OFFICE JULY 2019

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

July 2

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June 14

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• Constitutional safeguard against the deprivation of life, liberty,
• r property without due process of law by requiring a

government to give a person notice, the opportunity to be heard, and a fair judicial determination.

• A law may be void for vagueness if its language fails to ‘give

adequate notice of the conduct that is prohibited’ or if its ‘imprecise language encourages arbitrary enforcement by allowing prosecuting authorities undue discretion to determine the scope of its prohibits.’

• Summers v. Anchorage, 589 P.2d 863, 867 (Alaska 1979)

ASSEMBLY COUNSEL’S OFFICE JULY 2019

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An area in the wildland-urban interface where the fire chief or designee determined circumstances exist such that the risk of wildfire is heightened, significantly increases the potential for a fire to spread quickly through the area, and reasonably requires wildfire mitigation measures for protection of the public safety and welfare. Such circumstances may include, but are not limited to, large quantity of dry undergrowth and bushes, dead or dry trees, trees decimated by bark beetles, and the existence of fire fuels from natural vegetative growth, fire implements, heating devices, or recreational fires.

AO 2019-94

ASSEMBLY COUNSEL’S OFFICE JULY 2019

ASSEMBLY COUNSEL MAY 3, 2018

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

When there are prohibited campsites with the presence of fire implements in wildfire danger areas during a burn ban… (new subsection 15.20.020B.15.b.i. )

• Notice must be posted in the same manner as 10-day zone abatement
• notices. (S-version may take another approach)
• Verbal notice to any person(s) within the wildfire danger area
• Notice must contain:
• The approximate location of the campsite and wildfire danger area
• Code provision under which the area was designated
• That campsites may be removed after 24 hours
• Where personal property taken will be located and how to reclaim it
• How an appeal may be filed with the Municipality

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

New AMC 15.20.107: Fire implements and heating devices may be immediately removed from wildfire danger areas where a firefighter sees circumstances pose a wildfire hazard or are reckless to human life and safety:

• The use of fire implements or heating devices during a burn ban on public

property not designated for such use

• The use of fire implements or heating devices in a reckless manner

demonstrating gross disregard for fire danger

• When specific circumstances indicate the person(s) do not intend to cease

and desist from such use If fire implements and heating devices are stored or secured, Municipality must provide notice in person or posted in location from where the items were taken that has instructions and locations for retrieval and how to request a hearing.

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

There must be sufficient circumstances for any rational trier of fact to find there had been reckless use in a manner demonstrating gross disregard for imminent fire danger.

Reckless Use (Alaska Statutes § 11.81.900(a)(3)) “A person acts “recklessly” with respect to a result or to a circumstance described by a provision of law defining an offense when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to that risk.” Gross Disregard (Black’s Law) “Beyond all reasonable measure” Imminent Danger (Black’s Law) “An immediate, real threat to one’s safety”

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

• large quantities of flammable, combustible,
• r explosive liquids
• dangerous

accumulations

• f

decorations, rubbish, wastepaper, boxes, shavings, or

• therwise combustible or flammable liquids
• r materials
• a defective stove, incinerator, oven, furnace,
• r other heating device or electric fixture
• the local fire danger rating level
• a local drought
• exposed or defective wires
• unattended cooking devices or fires
• leaking or defective batteries
• lack of fire extinguishing equipment
• the state of intoxication
• ineffective

storage and handling

• f

flammable liquids or fuels

• amount
• f exercised

control

• ver

the flames, stove, or heater

• the size of open flames or fire
• the relative locations and amounts of

rubbish, timber, leaves, grasses, or other flammable materials

• heaters

being used to dry clothes, blankets, or other coverings

• rubbish or other waste being used as fuel

for a fire

• presence of fireworks, rockets, torpedoes,
• r other explosives
• generators with a spark ignition

OPPORTUNITY FOR HEARING

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ASSEMBLY COUNSEL’S OFFICE JULY 2019

“Where a state must act quickly, or where it would be impractical to provide pre-deprivation process, post-deprivation process satisfied the requirements of the Due Process Clause.” Delay could result in the devastation of park land, destruction of property, serious injury, or death.

• A person whose property is stored or secured under the section must

request, in writing, a post-deprivation hearing before an administrative hearings officer within 10 days.

• The hearing will be within 3 days of request, unless more time is

requested by appellant or required by the AHO.