California Health & Safety Code Section 115800 provides that "No operator of a skateboard park shall permit any person to ride a skateboard therein, unless that person is wearing a helmet, elbow pads, and knee pads." The statue further provides that this requirement is satisfied where:

1. The local public agency adopts an ordinance requiring any person riding a skateboard at the facility to wear a helmet, elbow pads, and knee pads.

2. Signs are posted at the facility affording reasonable notice that any person riding a skateboard in the facility must wear a helmet, elbow pads, and knee pads, and that any person failing to do so will be subject to citation under the ordinance.

California Health & Safety Code Section 115800 also provides local public agencies with a limited immunity from liability for injuries that occur at skateboard parks. The immunity is available where:

1. The person skateboarding is 14 years of age or older.

2. The skateboarding activity that caused the injury was stunt, trick, or luge skateboarding.

3. The skateboard park is on public property.

4. Participants are required to wear helmets, knee pads, and elbow pads.

California Health & Safety Code Section 115800, as recently amended by the Legislature, further provides that "nothing in this section is intended to abrogate or limit any other legal rights, defenses, or immunities that may otherwise be available at law." The Legislature added this provision to clarify that California Health & Safety Code Section 115800 does not preempt any other defenses that may be available if a public entity is sued by an injured skateboarder, such as hazardous recreational use immunity under Government Code Section 831.7, and the common law doctrine of "assumption of the risk."

The proposed ordinance attempts to further the goals of the Open Space and Recreation Sub-Elements of the General Plan by allowing the City to operate a skatepark for the use and enjoyment of the community, without exposing the City to an unacceptable risk of liability for injuries that may occur.

While the City’s General Plan does not specifically address skateboarding, the Recreation Sub-Element does call for the City to:

Policy D.1.: "Provide a balanced range of (recreational) program choices to meet the diverse needs of the community."

Policy D.2.: "Implement program offerings to meet the needs of identified subgroups within the population."

Policy D.3.: "Provide recreation programs which meet the complex needs of youth."

Goal E.: "Provide and maintain recreation facilities based on community need, as well as on the ability of the City to finance, construct, maintain and operate these facilities now and in the future."

The Open Space Sub-Element adds:

There are two reasons to enact this proposed ordinance. The first is to protect the City from liability for injuries sustained at the skatepark. To do this, the City must enact an ordinance that complies with California Health & Safety Code Section 115880. The proposed ordinance would accomplish that objective. The second is to establish rules for the use of the skatepark that will support the safety of users and spectators. A valuable byproduct of the rules outlined in the ordinance is that they will also support the maintenance and longevity of the skatepark as people comply with the details of the ordinance. If the public follows the ordinance, then damage to the facility will be minimal and costs will be kept within the budgeted amount. For the future, it will mean that the quality of the skatepark will not be eroded by misuse.

A meeting was held with the public on July 31, 2002, to discuss the proposed ordinance and skatepark rules. All of those people were notified who had attended any previous public meeting about the skatepark and had put their name on a contact list. Teens were notified by Recreation staff through the Teen Advisory Council and other programs, and public flyers were posted in parks. (Please see Attachment C.)

Public contact was made through posting of the Council agenda on the City’s official notice bulletin board, posting of the agenda and report on the City’s web page, publication of the Council agenda in the San Jose Mercury News, and the availability of the report in the City Clerk’s office, Parks and Recreation Administration office, Library, Community Center, and Senior Center.